SENATOR AIR MARSHAL ISAAC M. ALFA v. PEOPLES DEMOCRATIC PARTY & ORS
(2019)LCN/13300(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of May, 2019
CA/A/289/19
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
SENATOR AIR MARSHAL ISAAC M. ALFA Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. SENATOR ATAI AIDOKO ALI Respondent(s)
RATIO
CONDITIONS FOR THE COURT OF APPEAL TO EXERCISE ITS POWERS UNDER SECTION 15 OF THE COURT OF APPEAL ACT
On the issue of whether this Court can exercise its powers under Section 15 of the Court of Appeal Act in this instant appeal, I will refer to the case of ECOTRADE LTD VS. MACFOY & ORS (2015) LPELR ? 25205 where it was held that:
“For the provisions of Section 15 of the Court of Appeal Act to apply, the following conditions which had already been settled in legion of authorities must exist, to wit, (a) the lower Court must have the legal power to adjudicate over the matter before the appellate Court can entertain it; (b) the issue sought to be determined must be capable of being distilled from the grounds of appeal before the appellate court; (c) all relevant materials must be available before the Court for consideration; (d) the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and (e) the injustice or hardship that will follow if the case is remitted to the lower Court must be clearly manifested”. See also the cases of EZEIGWE V NWAWULU (2010) 4 NWLR PART 1183 PAGES 159; OBI V INEC (2007) 1 NWLR PART 1046 PAGE 465. PER IDRIS, J.C.A.
DEFINITION OF AN “ASPIRANT”
In resolving this issue, the salient questions to be answered are: (a) Who is an aspirant within the meaning and con of Section 87 (9) of the Electoral Act 2010 (as amended)? (b) What conditions must be satisfied before a person can be qualified to be called an aspirant? (c) Was the Appellant at any point disqualified from being an aspirant? (d) Who can validly bring an action under Section 87 (9) of the Electoral Act 2010 (as amended). In the Supreme Court case of PDP & ANOR VS. SYLVA (2012) 13 NWLR PART 1316 PAGE 85 AT 126, an aspirant was defined as:
“a person with a strong desire to achieve a position of importance or to win a competition. Indeed Section 87 of the Electoral Act 2010 states that “A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective posts.” From the above, it is clear that an aspirant is a person who contested in the primaries. An aspirant is thus a candidate in the primaries.”
In the recently decided Supreme Court case of EZE VS. PDP & ORS (2018) LPELR 44907, an aspirant was defined:
?as a person who contested the primary election of his party. He must be someone who actually participated in the primary election he is challenging.” It is my view that an aspirant within the con of Section 87 (9) of the Electoral Act 2010 (as amended) is any person who has directly expressed interest in contesting for a certain political position, has purchased the requisite forms and made all the necessary payments of fees, submitted to the screening exercise of the political party he belongs to and has passed same, has been issued a clearance certificate and who contested and participated in the primary election conducted by the political party.
All these must be in place before a person can be said to be an aspirant. PER IDRIS, J.C.A.
THE BURDEN AND STANDARD OF PROOF OF ALLEGATION OF FALSE INFORMATION OR FORGERY
Now the questions to be asked and answered are:
a. What is the standard of proving such allegation of false information or forgery?
b. On whom does the burden of proving same lie?
c. Is the burden of proof static or it shifts?
It is settled that the onus of proof lies on he who asserts. I will refer to the provisions of Section 131, 132, 133 and 134 of the Evidence Act 2011 which provide thus: 131: 1. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
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1. In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
2. If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
3. Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
134. The burden of proof shall be discharged on the balance of probabilities in all civil proceeding,
However, it has been decided in a plethora of cases that when there is an allegation of crime in a civil suit, the person who asserts must prove same beyond reasonable doubt and not on the balance of probabilities or preponderance of evidence. The person who files an action under Section 31(5) of the Electoral Act 2010 (as amended) and asserts in an election matter that another party has committed forgery or submitted false documents must prove same beyond reasonable doubt. In the Supreme Court case of SALEH VS. ABAH (2017) LPELR ? 41914, it was held that:
“by Section 135(1) of the Evidence Act 2011, if the commission of a crime by a party is directly in issue in any civil or criminal proceeding, it must be proved beyond reasonable doubt. It is settled that the standard of proof beyond reasonable doubt is not the same as saying beyond the shadow of any doubt that a person is guilty, See BAKARE V STATE (1987) 3 SC wherein Oputa JSC, observed ?Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of probability. As Denning J (as he then was) observed in MILLER V MINSTER OF PENSIONS (1947) 2 ALL ER 373: “The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence- of course it is possible but not in the least probable; the case is proved beyond reasonable doubt. That is the law. It has not changed and it is the same in election cases. ?In the Supreme Court case of AGI VS. PDP & ORS (2016) LPELR – 42578, it was held that: “In proving beyond reasonable doubt, it is not enough for an appellant qua plaintiff to demonstrate the act of falsification of age (or forgery), it is also incumbent on him to establish that the act was intentional, In other words, it was done with the intention to gain an advantage by the alleged act of criminality…
Under the law, forgery cannot be grounded in respect of a document in the absence of its original. In other words, the mere presentation of series of documents by a party, alleging forgery, without pinpointing dearly the original one from the counterfeit cannot establish a case of forgery or falsification of age against the 3rd Respondent.” PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a writ of summons dated the 10th of October, 2018, before the Federal High Court, Lokoja, sitting in Kogi state, the Appellant as Plaintiff instituted the action giving rise to this appeal wherein, he sought before the trial Court 25 reliefs which are contained on pages 3 – 6 of the Records of appeal.
It was the Appellant’s case at the trial Court that he is a card carrying member of the 1st Respondent and he obtained the Expression of Interest form for Senatorial Nomination 2018 and also bought the PDP Senatorial Primary Election Nomination Form 2018 with the serial number 020002, code PD003/NA, Serial No: 00723 and he was issued a clearance certificate with a serial number: 00140 by the PDP to contest the Senatorial Primary Election 2018. He averred that the 2nd of October, 2018 was fixed by the National Working committee for the primary election to elect a candidate to be sponsored into the 9th National Assembly of the Federal Republic of Nigeria, for the office of Senator to represent Kogi East in the National Assembly.
?He further averred that the 3rd Defendant did
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not attend the venue of the said primary election which was at St. Peter Stadium Idah, the Kogi East Senatorial District Headquarters on the day fixed for the said exercise. The Appellant said that the said primary election did not hold on the 2nd of October, 2018 as announced and published, instead, a letter was given to the Electoral Committee to simply go to Kogi State to conduct affirmation to the three PDP Senators in Kogi State which the Appellant was the only PDP Senator in Kogi East for the purpose of the 8th National Assembly of the Federal Republic of Nigeria. That contrary to the provisions of PDP Constitution, Electoral Guidelines, Electoral Act 2010 (as amended) and the 1999 constitution, the reasons for the Electoral committee under Hon. David Idoko and secretary Barr. Jacob Ochai’s refusal to attend the primary election fixed for the 2nd of October, 2018 was that; only PDP senator shall be returned by affirmation and not by primary election, that a member of the National Working Committee collected the election materials and no election can be held without the electoral materials being handed over to the committee. The appellant further averred
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that the said Hon. David Idoko and secretary Barr. Jacob Ochai’s only stopped at the State party headquarters Lokoja and refused to visit Kogi East Senatorial District headquarters where the delegates were at the selected venue which was the St Peter’s Stadium.
Instead, the Electoral committee went back to Abuja and fabricated extract results, declaring the 3rd Respondent the winner, who was not present at all at the venue fixed for the holding if the primary elections and which election in fact did not hold as a result of lack of electoral materials.
The Appellant averred that he personally confirmed that the extract results, declaring the 3rd Respondent elected as the candidate did not emanate from the Returning office and the Assistant Returning officer. Irrespective of the fact that no primary election was held, the 1st and 3rd Respondents proceeded to submit the result purported to have emerged from the primary election to the 2nd Respondent.
The crux of the Appellant’s case at the trial Court was that the 3rd Respondent did not emerge candidate through a valid primary election since no primary election was held on the 2nd October, 2018 as
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scheduled in breach of the 1st Respondent’s constitution and Guideline and the Electoral Act 2010. And also, that the 3rd Respondent submitted false information to the 2nd Respondent in breach of Section 31 (1), (5) and (6) of the Electoral Act 2010 when he submitted form CF001 and did not disclose that he had previously submitted false information to the 2nd Respondent when he was specifically asked whether he had previously submitted false information to the 2nd Respondent.
When the hearing of the matter started on the 17th of January, 2019, the Appellant called three witnesses. Three documents which are; INEC’s monitor check list for political party primaries and Report of Non-conduct of party primary for Peoples Democratic Party Kogi East Senatorial District, Kogi State ,the judgment of Court delivered by Justice Kolawole on the 13th of June, 2018 in Suit No- FHC/ABJ/CS/1073/2014, and judgment of the Court of Appeal delivered on the 24th of October, 2018 were admitted and marked as Exhibits A ? C.
?It was PW1 testimony that in Exhibit B, a Court of competent jurisdiction had delivered a judgment, barring the 3rd Respondent from participating
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or contesting senatorial election because he had presented forged documents to INEC and when asked if he had at any point presented false documents to INEC, he answered in the negative. Even though the 3rd Respondent appealed the said judgment, the Court of appeal affirmed the judgment of the trial Court and the appeal before the Supreme Court had been withdrawn and struck out.
PW2 testified that he knew for sure that it was the agreement of the party that the incumbent Senator should be given automatic ticket which is the Appellant. He also testified that he was a statutory delegate to vote at the said primary election. He testified that the said primary election never took place on the 2nd of October, 2018.
PW3, which was the Appellant himself testified and ten documents were tendered through him which were marked as Exhibits D ? L2. He was cross examined as to whether he was aware that all aspirants were screened, if he was disqualified at any point and about the judgment delivered by Justice Kolawole in Suit No. FHC/ABJ/CS/1073/2014.
?When the Appellant closed his case, the 1st Respondent called a single witness and eight documents were
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tendered through him marked as Exhibits M ? U. The 2nd Respondent filed no processes and the 3rd Respondent testified for himself. During his testimony, the 3rd Respondent, DW2 referred to the Provisional Clearance Certificate issued to him by the 1st Respondent, a copy of Kogi State Senatorial Primary Election Committee Report of Primary Election of 2nd October, 2018 and report of INEC on primary election which were admitted and marked as Exhibits V and X. He was cross examined based on Exhibit B which was the judgment delivered by Justice Kolawole in Suit No. FHC/ABJ/CS/1073/2014 where it was ordered that the certificate of return issued to him be withdrawn based on forgery and presentation of false documents to INEC.
At the close of hearing, parties were ordered to file final written addresses which were adopted. The trial judge, Justice D. U. Okorowo delivered his judgment on the 8th of March, 2019 in favour of the 3rd Respondent and against the Appellant.
Dissatisfied with the judgment of the trial Court delivered by Honourable Justice D. U. Okorowo delivered on the 8th of March, 2019, the Appellant filed a Notice of Appeal dated the 21st
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of March, 2019 which contained two grounds of appeal
In the Appellant’s brief of argument settled by Ugochukwu Ezekiel Esq and filed on the 30th of April, 2019, two issues for determination were distilled:
1. Whether considering the evidence before the Court, the learned trial Judge was right to have concluded that the Appellant was not an aspirant for the October 2, 2018 primary elections. (Distilled from Ground 1)
2. Whether considering the provisions of Section 31 (1), (5) and (6) of the Electoral Act, 2010 (as amended) a party is required to prove beyond reasonable doubt the submission of false information to Independent National Electoral Commission. (Distilled from Ground 2)
On issue one, it was argued by Appellant’s counsel that it is settled law that the appellate Court will not interfere with the findings of the trial Court unless such findings and conclusion are perverse. The Appellant counsel has argued that the judgment of the trial Court was perverse. He cited the cases of OLADIPO VS. MOBA L.G.A. (2010) 5 NWLR PART 1186 PAGE 117 AT 150 PARAS F G; IROLO VS. UKA (2002) 7 SCNJ 137.
?Counsel referred to pages 1120 of the
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record of appeal where the trial judge had decided that since the Appellant did not participate in the primary elections, he had no locus to challenge the process of the election under Section 87(9) of the Electoral Act 2010 (as amended). By this, the Appellant’s counsel submitted that the findings of the trial Court were clearly incompatible with the evidence before the court because the Appellant was cleared to contest the primary election, evidenced by Exhibit K which is the Provisional clearance certificate issued by the 1st Respondent, thus, Exhibit K being 1st in time supersedes Exhibit P and voids same. Also, there was no evidence before the trial judge that Exhibit 0 which is the purported press statement withdrawing Exhibit K was ever published or served on the Appellant. Furthermore, it was argued that un-contradicted evidence before the Court shows that the Appellant was at the venue of the primary election to participate in the primary election whilst the 3rd Respondent was absent. Lastly, it was argued that the refusal to conduct primaries as scheduled is a breach of the 1st Respondent’s guidelines and party constitution which the Appellant being
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an aspirant qualified to participate in the process is entitled to challenge.
It was submitted that the findings of the trial Court were thereby perverse as it was in-compatible with the evidence stated. This Court was urged to interfere and set aside the findings of the trial Court.
On issue two, it was argued by Appellant’s counsel that in civil, cases, a plaintiff is required to prove his case on the preponderance of evidence to be entitled to the reliefs sought. Reliance was placed on ACB PLC VS. ODUKWE (2005) 3 NWLR PART 911 PAGE 67 AT 81 PARAS G H.
It was argued that the provisions of Section 31 (5) of the Electoral Act (2010) (as amended) never described a “water tight believe” situation but only a “believe that is reasonable” which weighs on the balance of probability. Also, that for the statute to require a party to file a civil suit for a declaration, it presupposes that the standard of proof required is proof on the preponderance of evidence.
?It was further argued by Appellant Counsel that it is the Appellant?s case that by presenting a result to the 2nd Respondent, knowing fully well that there was no primary election
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amounted to forgery, and thus, the 3rd Respondent ought to be disqualified. Also, that by virtue of the decision of the Court in Suit No. FHC/ABJ/CS/1073/2014 which declared that the 3rd Respondent submitted in 2014 false documents to the 2nd Respondent, when the 3rd Respondent was asked in the form he filled in 2018 if he had at any time submitted false documents to the 2nd Respondent, he answered NO instead of YES. That this alone makes him liable for disqualification. The case of DR. OKEZIE VICTOR IKPEAZU VS. DR. SAMPSON UCHECHUKWU OGAH & 3 ORS (UNREPORTED APPEAL NO. CA/A/390/2016) was cited. That the Appellant has proved the allegation of forgery with these two points.
Finally, the Appellant’s counsel argued that where the learned trial judge held that the decision of Justice Kolawole of the Federal High Court in Suit No. FHC/ABJ/CS/1073/2014 was merely comments and not findings of fact were wrong as it was clearly finding of facts.
The Court was urged to allow the appeal and set aside the judgment of the trial Court.
?In the 1st Respondent brief of argument filed on the 10th of May, 2019 and settled by E. O.. Abadaki Esq, two issues
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for determination were distilled thus:
1. Whether considering the evidence before the Court, the Learned trial judge was right to have concluded that the Appellant was not an aspirant for the October 2nd, 2019 primary election.
2. Whether considering the provisions of sections 31 (1) (5) and (6) of the Electoral Act 2010 (as amended) a party is required to prove beyond reasonable doubt the submission of false information to Independent National Electoral Commission.
On issue one, the 1st Respondent’s counsel has submitted that the learned trial judge was right to have concluded that the Appellant was not an aspirant for the October 2, 2019 primary election having been disqualified from participating in the party primary election in the course of the screening exercise on grounds bordering on the violation of the party’s constitution. It is the 1st Respondent’s argument that the Appellant did not participate in the primary election for Kogi East Senatorial Elections. Thus, he had no locus to challenge the process of the primary election under Section 87 (9) of the Electoral Act 2010 (as amended). It was argued that at the end of the screening
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exercise, the Appellant and other unsuccessful candidates were disqualified from participating in the 2nd October, 2018 primary elections.
The 1st Respondent’s counsel urged this Court to take note of Exhibits A, H, I, J, M, N, 0, Q, R, S, T, U, V and W which were tendered at the trial Court as it would show that the 3rd Respondent was qualified, cleared and participated in the said primary election and not the Appellant.
Furthermore, it was submitted that intra party matters of nomination, emergence and selection of candidates was vested in political parties and the Court has no right to interfere with same. Reliance was placed on PDP VS. SYLVA & ANOR (2012) LPELR – 7814. Thus, the Appellant who did not participate in the primary election cannot validly challenge its outcome. Only a person who participated in the primary election can bring an action under Section 87(9) of the Electoral Act 2010 (as amended).
On issue two, the 1st Respondent’s counsel argued that it is trite law that when a claimant makes an allegation of crime against the Defendant and makes the commission of the crime the basis of his claim, the provisions of
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Section 135(1) of the Evidence Act imposes strict burden on the claimant to prove the crime beyond reasonable doubt. Reference was made to OKECHUKWU VS. INEC (2014) 17 NWLR PART 1436 PAGE 255 AT 299 ? 300; NWOBODO VS. ONOH (1984) 1 SCNLR. Forgery being a criminal matter must be proved beyond reasonable doubt.
It was further argued that in the case of APC VS. PDP & ORS (2015) LPELR ? 24587 PAGE 58, it was held that to prove forgery or that a document was forged, two documents must be produced. (1) The document from which the forgery was made and (2) the forged documents. It was argued that the Appellant failed to produce both.
Finally, the 1st Respondent urged this Court to dismiss the appeal and affirm the judgment of the trial Court.
The 3rd Respondent filed a Brief of argument dated the 10th of May, 2019 and settled by F. S. Jimba Esq and the two issues for determination raised by the Appellant were adopted:
1. Whether considering the evidence before the Court the learned trial Judge was right to have concluded that the Appellant was not an aspirant for the October 2, 2018 primary elections.
2. Whether considering the provisions
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of section 31 (1), (5) and (6) of the Electoral Act, 2010 (as amended) a party is required to prove beyond reasonable doubt the submission of false information to Independent National Electoral Commission.
The 3rd Respondent’s counsel had raised a Notice of preliminary objection, urging this Court to strike out the appeal in limine. He has raised eight grounds upon which the objection is premised which are:
(i) The appeal is purely academic as the reliefs sought by the Appellant are spent, cannot confer any utilitarian value on the Appellant.
(ii) The reliefs sought by the Appellant in the court below and in this Court are not grantable specifically having regards to reliefs 21 and 22 sought by the Appellant in view of the fact that the election in question has been conducted and a different candidate emerged as winner of the election.
(iii) The relief which the Appellant seeks from this Honourable court is “an order allowing the appeal and setting aside the judgment of the Federal High Court, Lokoja Per Honourable Justice D.U. Okorowo delivered on 8th day of March 2019 and granting the reliefs sought by the Appellant in the writ of
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summons”
(iv) The decision of the lower Court on Section 87(9) of the Electoral Act, 2010 (as amended) is premised on the preliminary objections of the 1st and 3rd Respondents.
(v) The lower Court did not go into the merits of the case in relation to Section 87(9) of the Electoral Act, 2010 (as amended).
(vi) The Appellant’s appeal has no complaint against the failure of the lower Court to determine the case on the merits based on Section 87(9) of the Electoral Act, 2010 (as amended).
(vii) Given that the lower Court did not determine the case on the merits in relation to Section 87(9) of the Electoral Act, 2010 (as amended), the only relief that this Honourable Court can grant in the unlikely event of the success of the appeal is to remit the case back to the lower Court to determine the case on the merit based on Section 87(9) of the Electoral Act, 2010 (as amended).
(viii) The lower Court has 180 days constitutionally delimited to hear and determine the case from the date 104h of October, 2018 when the case was filed and the 180 days has since lapsed on the 7th day of April, 2019.
?The 3rd Respondent’s counsel has argued that
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indeed, by virtue of Section 15 of the Court of Appeal Act, the appellate court has the power to make any order which the court below is empowered to make however, such powers can only be exercised in accordance to regulations laid down by statutes, rules and practice procedure. Reference was made to IBOM POWER CO. LTD & ANOR VS. HARDING & ORS (2015) LPELR ? 40907.
Also, it was argued by the 3rd Respondent’s counsel that it was clear from the judgment of the trial Court that the aspect of the case bordering on Section 87 (9) of the Electoral Act 2010 is premised on the preliminary objection of the 1st and 3rd Respondents and the lower Court did not go into the merit of the case as regards it. It was argued that the instant case was fought at the Court below through pleadings and the calling of viva voce evidence and the proof of the allegation of the Appellant in the suit in respect of Section 87(9) of the Electoral Act, 2010 (as amended) must also be given such opportunity.
?This Court was urged that in the event that it finds that the Appellant had the locus to bring an action under Section 87 (9) of the Electoral Act, 2010 (as amended)
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, the matter should be remitted to the trial court so that it can be argued on the merits.
Also, the 3rd Respondent has submitted that the reliefs particularly 18, 19, 20, 21 and 22 sought by the Appellant has become academic and spent and liable to be struck out. This is because the Kogi East Senatorial Election 2019 has since been conducted and it was the candidate of the All Progressive Congress (APC) that won the election. Thus, it is impossible for this Honourable Court to grant the reliefs which the Appellant seeks to obtain from this appeal.
Now on the main appeal, on issue one, it was argued by 3rd Respondent counsel that the Appellant, having not participated in the primary election of 2nd of October, 2018, the Appellant was not an aspirant and cannot maintain an action under Section 87 (9) of the Electoral Act 2010 as he has no locus to challenge the results of the primary election. Reference was made to assertions made by the Appellant that “he was cleared to participate” in the primary election which according to him “never took place” and not that he indeed participated in the primary elections that held on the 2nd of October,
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2018. The case of MAIHAJA VS. GAIDAM (2017) LPELR ? 42474 was cited. The Court was urged to resolve this issue against the Appellant.
On issue two, it was argued by the 3rd Respondent’s counsel that the Appellant failed to prove the allegation of fraud alleged to have been committed by the 3rd Respondent beyond reasonable doubt. This is because the Appellant even has no locus standi to challenge the primary election, and the allegation of the Appellant that the primary election never took place goes to no issue based on Exhibits Q, R, W and X.
Also, on the argument of Appellant’s counsel that by virtue of the decision of Justice Kolawole in Suit No. FHC/ABJ/CS/1073/2014 which declared the result the 3rd Respondent submitted in 2014 to the 2nd Respondent as false document and the 3rd Respondent ought to have answered “Yes” when asked if he had ever presented a false document to the 2nd Respondent to which he answered “No”, such answer amounted to giving false information to the 2nd Respondent.
?It was further argued in response by the 3rd Respondent that based on Section 128 of the Evidence Act 2011; no evidence can be given of a judgment
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except the judgment itself. It was submitted that the issue before the Court in FHC/ABJ/CS/1073/2014 was who was the winner of the primary election of the 1st Respondent for Kogi East Senatorial District between the Appellant and the 3rd Respondent and not the issue of forgery or presentation of false documents to INEC. Thus, the Appellant cannot therefore rely on the said judgment to seek to disqualify the 3rd Respondent.
It was further submitted that the Appellant has no locus standi to institute an action under Section 31 of the Electoral Act. Also, the Appellant was obligated by virtue of the said Section 31 to establish forgery or false information; he must as well establish the presentation of the said forged document to INEC.
The 3rd Respondent’s counsel further sought to distinguish the case of SALEH VS. ABAH (2018) ALL FWLR PART 933 PAGE 944 which the Appellant had placed heavy reliance on, saying that it was not on all fours with the instant appeal. It was argued that there was nowhere in the judgment in Suit No. FHC/ABJ/CS/1073/2014 that a specific finding of forgery was made against the 3rd Respondent. The onus was on the Appellant to
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prove the allegation of forgery beyond reasonable doubt. The Court was urged to resolve this issue against the Appellant.
The Appellant filed a Reply Brief filed on the 13th of May, 2019 to the 1st and 3rd Respondents Brief of argument settled by Ugochukwu Ezekiel Esq.
In reply to the 3rd Respondent’s notice of preliminary objection, it was argued by the Appellant’s counsel that his case still consists of live issues and cannot be regarded as an academic exercise. He cited the cases of STATE VS. AZEEZ (2008) 14 NWLR PART 1108 AT 485 PARAS A ? B. EZEREBU VS. EHINDERO (2009) 10 NWLR PART 1148 PAGE 166 AT 176 – 177.
It was further argued that even though the general elections held and another party purportedly won the election, the 1st and 3rd Respondents have filed a petition at the National Assembly Election Petition Tribunal. In the event the 1st Respondent win at the said tribunal, the issue of the eligibility of the 3rd Respondent will arise.
It was also argued that on the issue raised that this Honourable Court cannot hear the Appeal because the lower Court only upheld the objection of the 1st and 3rd Respondents as regards
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Section 87 (9) of the Electoral Act 2010 (as amended) and the Court of Appeal does not have power to grant the reliefs sought at the lower Court by the Appellant, the Appellant counsel has cited the provisions of Section 15 of the Court of Appeal Act, stating that the Court of Appeal has the absolute powers of the Court of first instance and has the power to grant such reliefs or make such orders as the Federal High Court would have made in the circumstance as the trial judge failed to consider the evidence before it before reaching a decision.
In reply to the issues raised and argued by the 1st and 3rd Respondents, the Appellant’s counsel has argued that a closer look at Exhibit A which is the 2nd Respondent’s monitor’s checklist shows that no election took place on the said date. Also, the Appellant drew this Court’s attention to the unchallenged evidence of PW1, PW2 and PW3.
?Also, it was argued that Exhibit A showed that no primary election took place and Exhibit Q was merely concocted to deceive the 2nd Respondent.
?On the argument of the 3rd Respondent that Section 87(9) of the Electoral Act 2010 cannot be separated from
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Section 35 of the Electoral A ct, the Appellant’s counsel has argued that any person, aspirant or not, can challenge the eligibility of any candidate who submits false information to the 2nd Respondent.
Finally, the Appellant urged this Court to discountenance the argument of the 3rd Respondents in paragraphs 42, 43 and 44 of his brief of argument as the arguments did not arise from the ground of appeal. The case of SHA (JNR) VS. KWAN (2000) 8 NWLR PART 670 PAGE 685 AT 700. The Court was urged to allow the appeal.
PRELIMINARY OBJECTION
I will first and foremost resolve the issues raised in the notice of preliminary objection filed by the 3rd Respondent for what it is worth. On the issue of whether this Court can exercise its powers under Section 15 of the Court of Appeal Act in this instant appeal, I will refer to the case of ECOTRADE LTD VS. MACFOY & ORS (2015) LPELR ? 25205 where it was held that:
“For the provisions of Section 15 of the Court of Appeal Act to apply, the following conditions which had already been settled in legion of authorities must exist, to wit, (a) the lower Court must have the legal power to adjudicate over the matter before the
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appellate Court can entertain it; (b) the issue sought to be determined must be capable of being distilled from the grounds of appeal before the appellate court; (c) all relevant materials must be available before the Court for consideration; (d) the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and (e) the injustice or hardship that will follow if the case is remitted to the lower Court must be clearly manifested”. See also the cases of EZEIGWE V NWAWULU (2010) 4 NWLR PART 1183 PAGES 159; OBI V INEC (2007) 1 NWLR PART 1046 PAGE 465.
I do not know why the 3rd Respondent has decided to raise this issue in his notice of preliminary objection. The conditions stated in the above mentioned case must co-exist. All must be present before the powers of the Court in Section 15 of the Court of Appeal Act can be invoked. As far as I am concerned and as I am guided by the records of appeal, there is nothing in this instant appeal that has not been canvassed before the trial Court. It is my finding that there is nothing in this appeal that can cause Section 15 of the Court of Appeal Act to be invoked.
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Also, on the issue of the fact that Section 87 (9) of the Electoral Act 2010 (as amended) was not heard on the merit and that in the event the Court finds that the Appellant had the locus to institute the action, the appropriate order this Court should make is to remit the matter to the trial Court, I find this argument very speculative and preemptory, unworthy to be contained in a notice of preliminary objection. Why is the 3rd Respondent so much in a hurry to advise this Court on the appropriate orders it can make? I am filled with doubt as to whether the 3rd Respondent’s counsel knows the purport of a preliminary objection in an appeal.
In the case of UBA PLC VS. ONUOHA & ORS (2014) LPELR ? 24360, it was held as follows:
“It is now beyond any argument that this Court must decide first on the Notice of Preliminary objection filed by Respondents. The reason is not far-fetched. The aim and objective of an objector is to bring to an abrupt end the live in an appeal or action either due to an obvious defect, incompetence, jurisdictional impediment or an intervening event militating against the hearing of a suit or an appeal.”
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In the case of THOMAS & ANOR VS. ADERINOKUN & ANOR (2008) LPELR 4382, it was held that:
?a competent preliminary objection should show the capacity of ending the matter on appeal of it is successful. To qualify for preliminary objection, there should be serious argument on point of law which can be determined in conclusion as the end of litigation in the matter before the Court, it is the decision of the Court in NEPA V ANGO (2001) 15 NWLR PART 737 PAGE 627 AT 646 that in other words, the purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which if it succeeds, would put an end to the appeal.” Finally, in the Supreme Court case of AKEREDOLU VS. MIMIKO & ORS (2014) 1 NWLR PART 1388 PAGE 402 AT 432-433, it was held that: “a preliminary objection is a pre-emptive strike aimed at scuttling the entire appeal in limine.”
There is no single part of the notice of preliminary objection where the 3rd Respondent challenged the competence of the appeal or even urged this Court to strike out the appeal for being fundamentally defective.
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Finally, on the issue that the reliefs sought by the Appellant has already become an academic exercise based on the fact that the said election has already been conducted and that it was the candidate of another party, the All Progressive Congress that emerged winner, this argument of the 3rd Respondent’s counsel cannot hold water. This is because the Appellant is at liberty to continue to pursue the reliefs sought even though the elections have been conducted and concluded. Is there any law in place that forbids the Appellant from instituting an action against the said winner of the election, challenging his emergence? The Appellant has argued in response that he is aware that the 1st and 3rd Respondents have filed a petition at the National Assembly Election Petition Tribunal, challenging the election. Will it be safe to say that the said petition filed by the 1st and 3rd Respondents too is an academic exercise because there is already a declared winner? I do not think so. See generally UWAZURIKE VS. NWACHUKWU (2013) ALL FWLR (PT. 680) 1205
At this juncture, it is my finding that there is no merit whatsoever in the purported preliminary objection filed by the 3rd
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Respondent as it is totally incapable of terminating the life of the appeal and it is hereby dismissed.
SUBSTANTIVE APPEAL
Having disposed of the notice of preliminary objection filed by the 3rd Respondent, I will now proceed to resolve the issues relevant for the determination of this appeal. I will adopt the issues for determination raised by the Appellant and they are:
1. Whether considering the evidence before the Court, the learned trial Judge was right to have concluded that the Appellant was not an aspirant for the October 2, 2018 primary elections. (Distilled from Ground 1)
2. Whether considering the provisions of Section 31 (1), (5) and (6) of the Electoral Act, 2010 (as amended) a party is required to prove beyond reasonable doubt the submission of false information to Independent National Electoral Commission.
ISSUE ONE
1. Whether considering the evidence before the Court, the learned trial Judge was right to have concluded that the Appellant was not an aspirant for the October 2, 2018 primary elections.
In resolving this issue, the salient questions to be answered are: (a) Who is an aspirant within the
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meaning and con of Section 87 (9) of the Electoral Act 2010 (as amended)? (b) What conditions must be satisfied before a person can be qualified to be called an aspirant? (c) Was the Appellant at any point disqualified from being an aspirant? (d) Who can validly bring an action under Section 87 (9) of the Electoral Act 2010 (as amended)?
In the Supreme Court case of PDP & ANOR VS. SYLVA (2012) 13 NWLR PART 1316 PAGE 85 AT 126, an aspirant was defined as:
“a person with a strong desire to achieve a position of importance or to win a competition. Indeed Section 87 of the Electoral Act 2010 states that “A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective posts.” From the above, it is clear that an aspirant is a person who contested in the primaries. An aspirant is thus a candidate in the primaries.”
In the recently decided Supreme Court case of EZE VS. PDP & ORS (2018) LPELR 44907, an aspirant was defined:
?as a person who contested the primary election of his party. He must be someone who actually participated in the primary election he is challenging.”
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It is my view that an aspirant within the con of Section 87 (9) of the Electoral Act 2010 (as amended) is any person who has directly expressed interest in contesting for a certain political position, has purchased the requisite forms and made all the necessary payments of fees, submitted to the screening exercise of the political party he belongs to and has passed same, has been issued a clearance certificate and who contested and participated in the primary election conducted by the political party.
All these must be in place before a person can be said to be an aspirant.
Now, going by this definition, was the Appellant an aspirant? There is evidence before the Court from the record of appeal that the Appellant purchased the Expression of interest forms and paid the necessary fees for same. However, when he submitted himself to the screening exercise, he was disqualified. Even though he tried severally to appeal his disqualification, none of the Appeals was successful and at all material times, he stood disqualified.
?Having been disqualified, one would wonder why the Appellant still expected to participate in the primary
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election scheduled to hold on the 2nd of October, 2018. Even if he had participated in the said primary election and he emerged winner, it would be regarded a nullity as he was already disqualified from participating in the primary election.
?The Appellant has admitted that he never participated in the primary election because according to him, the primary election never held and the extract and result of the said primary election were fabricated. These are mere assertions that were not convincingly proved by the Appellant.
I have looked at the exhibits tendered at the trial Court particularly Exhibits M, Q, R, S, T, U, W and X, which are all evidencing the results of the screening exercise which disqualified the Appellant from contesting at the primary election, the list of the screened and qualified aspirants and the result of the primary election that held on the 2nd of October, 2018.
There is no evidence to the contrary before the Court to cast a shadow of doubt on the authenticity and genuineness of the contents of the said documents. The 1st Respondent had stated that the primary election held on the 2nd of October, 2018 at the Senatorial
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District Headquarters and the result emanated from the primary election exercise in which the 3rd Defendant was the only aspirant.
Thus, it is my view that the primary election held and it was the 3rd Respondent that emerged winner. The Appellant is in no way an aspirant as he did not contest in the primary election. The Appellant cannot be said to be an aspirant because he was never cleared during the screening exercise put in place by the 1st Respondent.
This brings me to another question: Can the Appellant challenge the outcome of the primaries which he did not participate in?
In the case of MAIHAJA VS. GAIDAM (2018) 4 NWLR PART 1610 PAGES 454 AT PAGES 483 PARAS A ? B, it was held that:
“Before a candidate at a political party can have locus standi to sue on the conduct of the primaries, he must have been screened, cleared by his political party and participated in the primaries. Thus, a person who did not participate in the primaries could be conveniently classified as an interloper with no real interest in the primaries.”
?In the case of EMEKA VS. OKADIGBO & ORS (2012) LPELR-9338, it was held per Rhodes-Vivour, JSC
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that:
“Subsection (9) of Section 87 of the electoral Act 2010 (as amended) reads: (9)
“Notwithstanding the provisions of the Act or Rules of a Political party, an aspirant who complains that any of the provisions of this act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election may apply to the Federal High Court or the High Court of a state or FCT for redress?. A person who was not a candidate/aspirant at the primaries cannot come to the Court to complain about the conduct of the primaries.”
So as not to belabor this issue, it is my view that the Appellant was not an aspirant having been disqualified during the screening exercise conducted by the 1st Respondent and thus, he has no locus to challenge the results of the primary elections under Section 87 (9) of the Electoral Act 2010 (as amended.)
Issue one is hereby resolved against the Appellant.
ISSUE TWO
2. Whether considering the provisions of Section 31 (1), (5) and (6) of the Electoral Act, 2010 (as amended) a party is required to prove beyond reasonable doubt the
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submission of false information to Independent National Electoral Commission.
Section 31(1) of the Electoral Act, 2010 (as amended) provides that:
1. Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this submitted to the Commission in the prescribed forms, the list of the Candidates the party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidates for any reason whatsoever.
5. Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.
6. If the Court determines that any of the information contained in the affidavit of any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election” From the above cited provisions, one thing is clear that any person, whether an
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aspirant or not who reasonably believes that a candidate has submitted false information can approach any High Court and seek for a declaration that the information contained false statements against such a candidate.
Based on this, there is no question as to whether or not the Appellant had the locus standi to seek a declaration in this regard. Although it has been decided earlier that the Appellant is not an aspirant in the election and thus cannot maintain an action under Section 87(9) of the Electoral Act (as amended), it is clear that anybody including the Appellant can bring an action under Section 31(5) of the Electoral Act 2010 (as amended) against the 3rd Respondent or anyone he deems fit. The argument of the 3rd Respondent in this regard that the Appellant had no locus to bring an action under Section 31(5) of the Electoral Act 2010 (as amended) is hereby disregarded.
Now the questions to be asked and answered are:
a. What is the standard of proving such allegation of false information or forgery?
b. On whom does the burden of proving same lie?
c. Is the burden of proof static or it shifts?
It is settled that the
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onus of proof lies on he who asserts. I will refer to the provisions of Section 131, 132, 133 and 134 of the Evidence Act 2011 which provide thus:
131: 1. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
133
1. In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
2. If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on
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successively, until all the issues in the pleadings have been dealt with.
3. Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
134. The burden of proof shall be discharged on the balance of probabilities in all civil proceeding,
However, it has been decided in a plethora of cases that when there is an allegation of crime in a civil suit, the person who asserts must prove same beyond reasonable doubt and not on the balance of probabilities or preponderance of evidence. The person who files an action under Section 31(5) of the Electoral Act 2010 (as amended) and asserts in an election matter that another party has committed forgery or submitted false documents must prove same beyond reasonable doubt. In the Supreme Court case of SALEH VS. ABAH (2017) LPELR ? 41914, it was held that:
“by Section 135(1) of the Evidence Act 2011, if the commission of a crime by a party is directly in issue in any civil or criminal proceeding, it must be proved beyond reasonable doubt. It is settled that the standard of proof beyond reasonable doubt is not the same as saying beyond
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the shadow of any doubt that a person is guilty, See BAKARE V STATE (1987) 3 SC wherein Oputa JSC, observed ?Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of probability. As Denning J (as he then was) observed in MILLER V MINSTER OF PENSIONS (1947) 2 ALL ER 373: “The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence- of course it is possible but not in the least probable; the case is proved beyond reasonable doubt. That is the law. It has not changed and it is the same in election cases. ?In the Supreme Court case of AGI VS. PDP & ORS (2016) LPELR – 42578, it was held that: “In proving beyond reasonable doubt, it is not enough for an appellant qua plaintiff to demonstrate the act of falsification of age (or forgery), it is also incumbent on him to
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establish that the act was intentional, In other words, it was done with the intention to gain an advantage by the alleged act of criminality…
Under the law, forgery cannot be grounded in respect of a document in the absence of its original. In other words, the mere presentation of series of documents by a party, alleging forgery, without pinpointing dearly the original one from the counterfeit cannot establish a case of forgery or falsification of age against the 3rd Respondent.”
Thus, I do not agree with the submissions of learned counsel for the Appellant contained in paragraph 5.3 ? 5.5 of his brief that the standard of proof is based on the preponderance of evidence.
The Appellant in my view merely asserted that the primary election result presented by the 1st and 3rd Respondents to the 2nd Respondents was forged as there was no election. All through the case of the Appellant at the trial Court, one thing remained clear; the Appellant was never cleared by his political party, having been disqualified during the screening exercise by the 1st Respondent from participating in the primary election.
Based on this whether or not the
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primary election held, the Appellant was not qualified to contest in it because he had been disqualified during the screening exercise. The Appellant has failed to bring before the Court any hard evidence or overwhelming piece of evidence to show that indeed the primary election did not hold.
The trial court and this Court are courts of record and evidence is the vehicle which a party must prove its case.
The 1st and 3rd Respondents tendered Exhibits M, Q, R, S, T, U, W and X, evidencing the results of the screening exercise which disqualified the Appellant from contesting at the primary election, the list of the screened and qualified aspirants and the result of the primary election that held on the 2nd of October, 2018.
The Appellant at the trial Court had averred that he approached one Hon. Sam Abenemi and Alhaji Mamman Usman Pele who were the Returning officer and Assistant Returning officer to the Electoral committee at the State chapter of PDP office Lokoja and confirmed from them that the electoral committee under the chairmanship of Hon. David Idoko and the secretary ship of Barr. Jacob Ochai who only stopped at the state party
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headquarters Lokoja and refused to visit Kogi East Senatorial District headquarters had gone to Abuja and presented a purported extract/result submitted to the head office as a copy of the result of primary election which never took place and thus, the purported extract/result did not emanate from the Returning office and the Assistant Returning officer.
I cannot help but wonder why the Appellant never bothered to call these Returning officers to testify on his behalf that indeed the results did not emanate from them. It would have helped his case and casted doubt on the purported results submitted by the 1st and 3rd Respondents to the 2nd Respondent. There is nothing from the records to indeed show that the above conversation and confirmation ensued between the Appellant and the said Returning officers.
Furthermore, the law placed an evidential burden on the Appellant to prove the act of forgery or the act of providing false information by at least producing the forged document.
The Appellant has lazily relied on Exhibit B, the judgment of a Court in Suit No. FCT/ABJ/CS/1073/2014 and made no effort to tender the forged or falsified document
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before the trial Court.
By failing to do so, the Appellant has not discharged the evidential burden placed on him by the law to prove the allegation of forgery or the allegation of submitting false information made against the 3rd Respondent.
Having not proved these allegations against the 1st and 3rd Respondents beyond reasonable doubt, I hereby resolve this issue against the Appellant.
The appeal lacks merit and it is hereby dismissed. There is no order as to cost.
ADAMU JAURO, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA. I am in agreement with the reasoning and conclusion contained therein to the effect that the appeal is lacking in merit and ought to be dismissed.
I adopt the said judgment as mine in dismissing the appeal and abide by all consequential orders made.
Appeal Dismissed.
?EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, MOHAMMED BABA IDRIS, JCA. I agree with the reasoning, conclusions and orders therein.
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Appearances:
E. Ugochukwu, Esq. with him, U. Okorie, Esq. and S. Abunya, Esq.For Appellant(s)
E. O. Abadaki, Esq. for the 1st Respondent.
F. S. Jimba, Esq. with him, B. W. Sekpe, Esq., A. Muazu, Esq. and
F. Achiuke, Esq. for the 3rd RespondentFor Respondent(s)
Appearances
E. Ugochukwu, Esq. with him, U. Okorie, Esq. and S. Abunya, Esq.For Appellant
AND
E. O. Abadaki, Esq. for the 1st Respondent.
F. S. Jimba, Esq. with him, B. W. Sekpe, Esq., A. Muazu, Esq. and
F. Achiuke, Esq. for the 3rd RespondentFor Respondent