ADP & ANOR v. INEC & ORS
(2021)LCN/15169(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Wednesday, May 26, 2021
CA/B/EPT/GOV/01/2021
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Uchechukwu Onyemenam Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
1. ACTION DEMOCRATIC PARTY (ADP) 2. IBOI LUCKY EMMANUEL APPELANT(S)
And
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 2. PEOPLES DEMOCRATIC PARTY (PDP) 3. GODWIN NOGHEGHASE OBASEKI RESPONDENT(S)
RATIO
WHETHER OR NOT WHERE EVIDENCE RELATING TO DOCUMENTS ARE PLEADED, SUCH DOCUMENTS NEED NOT BE SPECIFICALLY PLEADED TO BE ADMISSIBLE
Second, that it is trite law that, where evidence relating to documents are pleaded, such documents need not be specifically pleaded to be admissible. See MONIER CONSTRUCTION COMPANY LTD. v. TOBIAS I. AZUBUIKE (1990) LPELR – 1910 (SC); ABUBAKAR & ANOR. v. INEC & ORS. (2019) LPELR – 48488 (CA). PER OWOADE, J.C.A.
WHETHER OR NOT ADMISSIBILITY OF NON-FRONTLOADED EVIDENCE MUST BE CONSIDERED IN THE LIGHT OF SUBSTANTIAL JUSTICE TO THE PARTIES
Finally, the Courts have held that
t admissibility of non-frontloaded evidence must be considered in the light of substantial justice to the parties. See NZERIBE & ANOR. v. UBA & ORS. (2012) LPELR – 19954 (CA); ZAREWA & ANOR. v. FALGORE & ORS. (2020) LPELR – 50870 (CA); OGBORU v. UDUAGHA (2011) 17 NWLR (Pt. 1232) 538. PER OWOADE, J.C.A.
WHETHER OR NOT COURTS OF LAW ARE ONLY OBLIGED TO CONSIDER AND DECIDE ON THE REAL ISSUES IN CONTROVERSY
Indeed, it is right. Courts of law are only obliged to consider and decide on the real issues in controversy. It is not the duty of the Court to consider issues or points that have been otherwise resolved or have been overtaken by events. See OKOYE v. TOBECHUKWU (2016) LPELR – 41508 (CA); TRADE BANK PLC v. BENILUX (NIG.) LTD. (2003) 9 NWLR (Pt. 825) Pg. 416; BUNGE v. GOV. OF RIVERS STATE (2006) 12 NWLR (Pt. 995) Pg. 573. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of the Governorship Election Petition Tribunal of Edo State, which sat in Benin City in respect of the Governorship Election held in that State on 19/9/2020 which said judgment was delivered 29/3/2021 in Petition on No. EPT/ED/GOV/01/2020.
By the final declaration in the said election, the 1st Respondent declared the 3rd Respondent who was the candidate of the 2nd Respondent as the winner of the said election and consequently issued the 3rd Respondent with a Certificate of Return which was tendered and admitted before the lower Tribunal as Exhibit A2.
Being aggrieved by the said final declaration of the 3rd Respondent as the winner of the election, the Appellants’ Petitioners who are candidates and political party that participated in the aforesaid election filed a petition on 5th October, 2020 on a sole ground based on Section 138 (1) (a) of the Electoral Act, 2010 (as amended) that the 3rd Respondent was at the time of the election not qualified to contest the Election.
Indeed, the sole ground of the petition which is clearly stated in paragraph 9
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of the petition reads as follows:
The 3rd Respondent, GODWIN NOGHEGHASE OBASEKI, who was declared the winner of the election and returned elected, was at the time of the election not qualified to contest the election. (Section 138 (1) (a) of the Electoral Act, 2010 (as amended).
The Appellants/Petitioners went further to plead the facts upon which they rely to support the ground of the petition and at the end of the said petition went on to claim the following reliefs from the lower tribunal namely:
(a) A DECLARATION that the 3rd Respondent presented a forged and/or false certificate to INEC (3rd Respondent) in violation of Section 182 (1) (J) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(b) A DECLARATION that the Respondent was at the time of the election which held on 19/9/2020, not qualified to contest the election for having submitted a false/forged document or certificate to the 3rd Respondent (INEC) along with his Form EC9,
(c) A DECLARATION that the 3rd Respondent having by his own showing admitted in Form EC9 that he never attended any primary school, is a person who has not been educated up
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to School Certificate level or its equivalent as prescribed by Section 177 (d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and is therefore not qualified to contest the Governorship Election which held on 19/9/2020 in Edo State.
(d) AN ORDER disqualifying 3rd Respondent as contestant in the said Edo State Governorship Election which held on 19/9/2020.
(e) AN ORDER nullifying the Governorship Election which held on 19/9/2020 in view of the fact that the 1st Respondent returned the 3rd Respondent who was not qualified to contest the election as the winner of the election.
(f) AN ORDER directing the 1st Respondent to conduct a fresh election between all the qualified contestants in that election apart from the 2nd and 3rd Respondents who are constitutionally disqualified from contesting the 2020 Governorship Election in Edo State.
(g) AN ORDER nullifying the certificate of return issued by the 1st Respondent to the 3rd Respondent.
ALTERNATIVELY
(a) A DECLARATION that the 3rd Respondent’s participation in the Edo State Governorship Election held on 19/9/2020 is null and void having sought and
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participated in the primary election process for two different political parties (namely PDP and APC) in respect of the same Governorship Election in Edo State.
(b) AN ORDER so disqualifying the 3rd Respondent and nullifying the votes cast for him in the said Governorship Election held in Edo State on 19/9/2020 and ordering the 1st Respondent to conduct a fresh election between all other qualified candidates excluding the 2nd and 3rd Respondents.
Pleadings were filed and exchanged. At the end of the trial, the lower Tribunal held that the Appellants’ Petitioners did not prove that the 3rd Respondent presented a forged and/or false certificate to INEC (1st Respondent) and that in all the circumstances that the 3rd Respondent was not disqualified to contest the Governorship Election held on 19/9/2020 in Edo State.
Dissatisfied with the decision of the Tribunal, the Appellants filed a Notice of appeal containing Fourteen (14) grounds of appeal. The Appellants and the Respondents exchanged briefs of Argument.
The relevant briefs of argument for the appeal are as follows:
1. Appellant’s brief of Argument dated 28th April, 2021. It is
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settled by Nikhide Ehighelua, Esq.
2. 1st Respondent’s brief of argument dated 30/4/2021 and filed on 2/5/2021. It is settled by Eyitayo Fatogun, Esq.
3. 2nd Respondent’s brief of Argument dated 2/5/2021 and filed on 3/5/2021. It is settled by Gabriel Oladejo, Esq.
4. 3rd Respondent’s brief of argument dated and filed on 2/5/2021. It is settled by Kenneth E. Mozia, Esq. SAN.
5. Appellant’s composite Reply brief to 1st, 2nd and 3rd Respondents’ brief. It is dated and filed on 6/5/2021. It is settled by Nikhide Ehighelua, Esq.
MOTIONS ON NOTICE
At the hearing of this appeal, there were two motions. The first is the 3rd Respondent’s motion on notice of 11th May, 2021 which prayed this Court to raise and argue the issue of jurisdiction as a preliminary point. And for an order striking out the appeal for lack of jurisdiction.
The second is the motion by the 2nd Respondent praying to set aside the service of the Notice of Appeal dated and filed on the 16th of April, 2021 on the 2nd Respondent through Gabriel Oladejo, Esq. for being irregular and unlawful.
In the motion of 11th May, 2021 by the 3rd Respondent, the 3rd
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Respondent and the Appellant adopted their Written Addresses.
In the motion also of 11th May, 2021 by the 2nd Respondent to set aside service of Notice of Appeal against the 2nd Respondent, the 2nd Respondent and the Appellant relied on their affidavit and counter affidavit in support of their respective positions.
The thrust of the 3rd Respondent’s argument on the motion to strike out the appeal is that, the Appellant, having failed to bring the parties on record at the lower Tribunal before this Court and having not obtained the leave of Court to discountenance their presence, the Notice of Appeal is rendered incompetent and this Court is robbed of jurisdiction to hear the appeal.
Learned counsel for the Appellant on the other hand, contended that there is nothing in Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016, which makes it mandatory to join to appeals, persons whose names had been struck out by interlocutory applications where the appeal is limited to a challenge of the final decision of the Court after the party had been struck out. For this proposition, learned counsel for the Appellant relied on the decision of this Court in the
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case of ADHEKEGBA VS MINISTER OF DEFENCE (2013) 17 NWLR (pt. 1382) 126 at 146.
Appellant’s counsel distinguished the cases of OMOKHODION VS. FRN (No. 2) (2005) 10 NWLR (pt. 934); LADOJA VS AJIMOBI (2016) LPELR – 40658 (SC); APEH VS PDP (2016) LPELR – 40728 (SC) amongst others referred to in the Written Address of the 3rd Respondent, as not being applicable to the facts and circumstances of the instant case.
I do agree with the learned counsel for the Appellants that the failure of the Appellants/Respondents to name parties that the Tribunal had hitherto struck out in their Notice of Appeal is not fatal to the competence of the Notice of Appeal. The complaint of the 3rd Respondent is at best, an irregularity which does not affect the competence of the appeal and does not go to the jurisdiction of this honourable Court in the circumstances of the case.
Indeed, and as pointed out by the learned counsel for the Appellant, the cases of OMOKHODION VS. FRN (No. 2) (2005) 10 NWLR (pt. 934) 581; LADOJA VS. AJIMOBI & ORS (2016) LPELR – 40658 (SC) and APEH & ORS. VS. PDP & ORS. (2016) LPELR – 40721 (SC) relied upon by the learned counsel for
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the 3rd Respondent are distinguishable and not on all fours with the facts and circumstances of this appeal. The 3rd Respondent’s application in his motion on notice of 11th May, 2021 is refused and the said motion is dismissed.
On the 2nd Respondent’s motion on notice of 11th May, 2021, the Appellants insisted that the 2nd Respondent took further steps after the disputed service of Notice of Appeal to file 2nd Respondent’s Brief of Argument on 3rd May, 2021.
Incidentally, the said 2nd Respondent’s Brief of Argument was prepared and settled by Gabriel Oladejo who now purportedly denies service of the 2nd Respondent’s Notice of Appeal on him.
It is not of the nature of equity to approbate and reprobate. Moreover, it is not equitable in the circumstances to grant the 2nd Respondent’s application denying service of the Notice of Appeal to her.
The 2nd Respondent’s application of 11th May, 2021 is refused and the 2nd Respondent’s motion on notice is accordingly dismissed.
In this appeal, the submissions of the Appellants shall be considered on one side of the scale of justice while the submissions of the three sets of Respondents
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shall be considered in one piece as the submissions of the Respondents. This is for the reason of the shared common interest amongst the Respondents and also for convenience of writing.
Learned counsel for the Appellants nominated eight (8) issues for the determination of the appeal. They are:
1. Whether the learned Judges of the lower Tribunal were right to have admitted documents tendered by the 3rd Respondent at the trial when the said documents were never pleaded and never frontloaded with the reply (defence) of the 3rd Respondent to the petition (Ground 1)
2. Were the learned Judges of the lower Tribunal right to have held that the report of the expert PW2, reduced into Exhibit A11 was inadmissible since it was made during the pendency of the petition and due to the demeanour of PW2? (Grounds 2, 3, 4 and 9).
3. Were the learned Judges of the lower Tribunal right to have held that issues relating to the size of the certificate issued by the University of Ibadan to the 3rd Respondent on which issues were copiously joined in the pleadings had become academic and not worthy of consideration? (Ground 5).
4. Were the learned Judges
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of the lower Tribunal right to have held that the 3rd Respondent was not bound to attach certificate(s) to form EC9 submitted to INEC? (Ground 6).
5. Were the learned Judges of the lower Tribunal right to have held that the falsehood stated by the 3rd Respondent in Exhibits A3 and A6 was not deliberate? (Grounds 7 & 8).
6. Were the learned Judges of the lower Tribunal right to have held that the 3rd Respondent did not submit a forged certificate to INEC? (Grounds 10 & 14).
7. Were the learned Judges of the lower Tribunal right in holding that the 3rd Respondent who under oath stated that he did not attend any primary school had been educated up to at least school certificate or its equivalent? (Grounds 11 and 12).
8. Whether the lower Tribunal was right in holding that in the circumstances of this case, the 3rd Respondent was not guilty of double nomination. (Ground 13).
On issue No. 1, learned counsel for the Appellants submitted that the lower Tribunal erred in law when they held at page 183 of their judgment as follows:
“It is the law that where there are relevant facts in the pleadings, the fact that a document is
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not specifically pleaded does not make it admissible (sic) inadmissible.
We have fully examined the relevant paragraphs of the deposition of RW1 and the document tendered through him. We agree with the submission of the learned counsel for the 2nd and 3rd Respondents that the deposition and the exhibits are fully accommodated within the pleadings filed by the parties. The evidence and exhibits are relevant to the facts in issue and we so hold.”
Learned counsel for the Appellants submitted that the above conclusion runs contrary to the Rules of pleadings and also to the provision of Paragraph 12(3) of the 1st Schedule to the Electoral Act, 2010 (as amended), Appellants’ counsel submitted that a respondent must not only plead the documents he intends to rely on, he is also bound to frontload and attach all such documents to his reply to the petition. Any such document which is not pleaded or frontloaded along with the reply is inadmissible and where such is inadvertently admitted, it should be expunged and/or excluded from consideration of the Court.
Learned counsel for the Appellants referred to the provisions of Section 145 (1) and (2) of the Electoral Act, 2010 (as amended),
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Paragraph 12 (3) of the 1st Schedule to the Electoral Act, 2010, and the cases amongst others of DAGACI OF DERE v. DAGACCI OF EBWA (2006) ALL FWLR (Pt. 311) 2423; APC v. PDP (2015) ALL FWLR (Pt. 791) 1493; ABUBAKAR v. YAR’ADUA (2008) 19 NWLR (Pt. 1102) 1, (2009) ALL FWLR (Pt. 454) 409 (2008) 12 SC (Pt. 11) 1; OFFIONG v. EKPO (2017) LPELR – 43651 (CA); OLUKADE v. ALADE (1976) ANLR 56; N.I.P.C. v. THE THOPMSON ORG. LTD. (1969) 1 ANLR 134. He urged us to expunge the documents not specifically pleaded by the 3rd Respondent and the testimony of RW1 in paragraphs 15-26 of his written deposition.
The Respondents more especially, through the 1st Respondent, attended to Appellants issue 1 and submitted that there is nowhere in the statute, where it is provided that evidence not frontloaded with Respondent’s Reply will be automatically inadmissible. That, it is the trite position of pleading and evidence that where there are enough relevant facts in the pleadings of the parties, the fact that a document is not specifically pleaded will not militate against its admission in evidence. They argued that the fact that the 3rd Respondent’s
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University Degree Certificate is authentically issued by the University of Ibadan was pleaded in the Reply of the 3rd Respondent, a fact which makes the evidence of RW1 relevant as held by the Tribunal.
I do agree with the Respondents, first that admissibility is largely dependent on relevance.
Second, that it is trite law that, where evidence relating to documents are pleaded, such documents need not be specifically pleaded to be admissible. See MONIER CONSTRUCTION COMPANY LTD. v. TOBIAS I. AZUBUIKE (1990) LPELR – 1910 (SC); ABUBAKAR & ANOR. v. INEC & ORS. (2019) LPELR – 48488 (CA).
Finally, the Courts have held that admissibility of non-frontloaded evidence must be considered in the light of substantial justice to the parties. See NZERIBE & ANOR. v. UBA & ORS. (2012) LPELR – 19954 (CA); ZAREWA & ANOR. v. FALGORE & ORS. (2020) LPELR – 50870 (CA); OGBORU v. UDUAGHA (2011) 17 NWLR (Pt. 1232) 538.
In the instant case, the Appellants have not claimed or shown that the facts evidenced by RW1 and his documents were not evidence of facts pleaded. Neither have the Appellants claimed that the said evidence was not relevant to the
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proceedings. In the circumstance, the Tribunal was not in error to have admitted the deposition of RW1 and the evidence tendered through him.
Issue No. 1 is accordingly resolved against the Appellants.
In issue No. 2, learned counsel for the Appellants submitted that the Tribunal was in error to hold that the report of PW2 which was admitted as Exhibit A11 was inadmissible in evidence. Learned counsel for the Appellants submitted that having at first mentioned at page 103 of the judgment that Exhibit A11 is relevant and admissible, the Tribunal is not permitted to later hold that the said report is inadmissible. This according to the Appellants, is synonymous with the Tribunal sitting on appeal on its own decision. Also, that the Tribunal could neither put the inadmissibility of Exhibit A11 on the demeanour of the witness – PW2 or even as offensive to the provision of Section 83 (3) of the Evidence Act which they (Appellants) said is not applicable to the admissibility of opinion evidence. For the principle that the opinion/expert evidence cannot be caught by the term made by an interested party in the pendency of a suit under Section 83 (3) of the Evidence Act,
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the Appellants referred to a number of cases including ASHCROFT v. HERITAGE BANKING CO. LTD. (2018) LPELR – 44913 (CA); TSEGBA v. REGD. TRUSTEES OF MISSION HOUSE (2018) LPELR – 44242 (CA); PETERSIDE v. WABARA (2010) LPELR – 4847 (CA); AKUSOBI v. OBINECHIE (2004) 2 NWLR (Pt. 1857) 355; RONKE v. FRN (2017) LPELR – 43584 (CA).
Learned counsel for the Appellants submitted that the certificate tendered by RW1 is the same certificate which the PW2 examined along with the certificates of others who graduated from the same University of Ibadan in 1979 and arrived at the conclusion that the purported certificate Exhibit R2 was forged.
He submitted that RW1 did not dispute any of the other certificates which PW2 examined along with Exhibit R2 and came to the conclusion that Exhibit R2 has features which were different from the other “undisputed” certificates. He submitted that RW1 not being an expert in document forensic examination, his evidence cannot displace the evidence of PW2. He submitted further that the Tribunal cannot take solace in Exhibit R9, the judgment of the Federal High Court, Abuja Division, in Suit No. FHC/ABJ/CS/74/2020 which
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had nothing to do with the Appellants herein.
He urged us to resolve issue No. 2 in favour of the Appellants.
The Respondents attended to Appellants’ issue No. 2 in at least three senses. First, that the evidence of PW2 and Exhibit A11 indeed offend against the provision of Section 83 (3) of the Evidence Act. Second, that beyond demeanour, the Tribunal evaluated the evidence of PW2 as against that of RW1 and indicated his preference on the issue joined by the parties to prefer the evidence of Rw1. Third, that the Tribunal was/is equally right to have rejected the evidence of PW2 and Exhibit A11 as irrelevant opinion evidence.
According to Respondents, PW2 described himself as a handwriting expert, hired to analyse photocopies of the 3rd Respondent’s certificate. That the testimony of PW2 was to the effect that Ikhide Ehighelua & Co. (counsel to the Appellants/Petitioners) requested the services of Masters Patterns Forensic Services Limited, where PW2 is a forensic document examiner, to examine and compare the University of Ibadan certificate of Mikailu Ozemhoka Asekome, University of Ibadan certificate of Emmanuel Balogun and University of
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Ibadan certificate of Godwin Nogheghase Obaseki.
That PW2 admitted under cross examination that he never saw or reviewed the originals of the signatures on the certificates forwarded to him for comparison and that he never visited the University of Ibadan to verify the nature of the certificates.
The Respondents submitted that it became clear from the above that the evidence of PW2, including the report made by him (Exhibit A11) was based on the information forwarded to him by the Appellants’ Petitioners and those within his personal knowledge. That PW2 admitted under cross-examination that, his company is a non-governmental, profit-making and commercial organization and all services must be paid for. He made no enquiry from the issuing authorities of the certificate. He was hired and paid by the Appellants’ Petitioners and the expert report was made in the anticipation and for the purpose of the petition. Respondents referred to the case of ANAGBADO v. FARUK (2018) LPELR – 44909 (SC) and urged us to hold that the evidence of PW2 and Exhibit A11 offend the provision of Section 83 (3) of the Evidence Act, as it was made by a party interested in the
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pendency of proceedings.
On another wicket, the Respondents referred us to the findings of the Tribunal at pages 3346 Volume 5 and page 3347 as follows:
First at page 3346, that
“We have carefully reviewed the testimony of the PW2 and his report and the circumstances leading to its making. It is the Petitioners (Appellants) that provided the very foundational instrument of the test, that is, the document marked Appendix A1, document marked Appendix A2 and document marked Appendix D1….
The very questions to be answered in the inquiry were provided by the Petitioners (Appellants) as stated in paragraph 12 of the Report.
Second, at page 3347 of Record that the Tribunal expressed a preference for the case made by the 3rd Respondent when it held as follows:
“In the event that we are wrong, it is our further holding that the testimony of PW2 and his report cannot stand in view of the direct and unambiguous evidence of RW1 and the exhibits tendered by the 3rd Respondent.”
The Respondents submitted further that the Appellants’ PW2 devoted a substantial portion of the report to issues that were extraneous to the pleadings and
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which went to no issue. Such issues, they said as purported differences in logo or differences in signature of the Vice-Chancellor, Registrar, distance between words, etc, were not raised in the pleadings. The said pieces of evidence therefore lacked any probative or evidential value.
On this score, the Respondents made reference to page 146 of the judgment of the Tribunal where it was held as follows:
“It is our view that in the resolution of the genuineness of the Degree Certificate of the 3rd Respondent, the leaving out of the University of Ibadan by the Petitioners, 4th and 5th Respondents is fatal to their case. Running to an expert to determine the genuineness of the certificate when the maker of the certificate is available and can be easily reached to determine the authenticity of the certificate and we so hold.”
First, I must say in the determination of Appellants’ issue No. 2 that I agree with the Tribunal and the counsel to the Respondents that the evidence of PW2 and his report, Exhibit A11 offend the provisions of Section 83 (3) of the Evidence Act. This is because, unlike the avalanche of cases referred to in the Appellants’ Brief of
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Argument, including the cases of ASHCROFT v. HERITAGE BANKING CO. LTD. (2018) LPELR – 44913 (CA); TSEGBA v. REGD. TRUSTEES OF MISSION HOUSE (2018) LPELR – 44242 (CA) and PETERSIDE v. WABARA (2010) LPELR — 4847 (CA) which largely deal with the admissibility of the evidence of surveyors and the consequent evolution through those cases of the rule that the evidence or opinion of such category of independent expert witnesses could not be caught by the provision of Section 83 (3) of the Evidence Act which frowns on the admissibility of evidence and/or documents made by interested parties/witnesses in the pendency of a suit, the instant case is indeed distinguishable from those line of cases. It may well be that the professional restraints and code of conduct of surveyors and all such other experts make the Law to look towards them as truly independent in the conduct of their professional affairs. In the instant case, the evidence offered by PW2 revealed that he was goaded, supported, and empowered by the Appellants, circumstances which make me to join the Tribunal in holding the view that the PW2 was/is indeed an interested party and that Exhibit A11 was made
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in the pendency of the proceeding and indeed for the purpose of the proceeding. The justification for the Tribunal holding that the evidence and the report made by the PW2 are not admissible does not end there. The Tribunal actually expressed its preference for the evidence of RW1 over and above that of PW2 in its determination of the authenticity of the 3rd Respondent’s degree Certificate issued by the University of Ibadan in 1979.
I start to wonder if it is not indeed right to have joined the Tribunal in declaring the evidence of PW2 and his Exhibit A11 inadmissible, consequent on my view that, the evidence of PW2 and Exhibit A11 belong to the general rule of irrelevancy and inadmissibility of opinion evidence under the provision of Section 67 of the Evidence Act as the evidence of PW2 could indeed not have been accommodated under any of the exceptions provided in Sections 68 to 76 of the Evidence Act, 2011.
The parties joined issue on the forgery or otherwise of Exhibit R2. Now, the Black’s Law Dictionary 8th Edition at page 677 defines “forgery” as (1.) The act of fraudulently making a false document or altering a real one to be used as genuine.
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(2.) A false or altered document made to look genuine by someone with the intent to deceive … (3.) The act of fraudulently altering, authenticating, issuing or transferring a writing without appropriate authorisation. In other words, all forgeries are species of fraud.
In the instant case, the un-contradicted evidence of RW1 has shown that there is no false claim by the 3rd Respondent in relation to Exhibit R2. Also, the existence and authenticity of Exhibit R2 through the evidence of RW1 negates any suggestion of a false claim to or on Exhibit R2 by the 3rd Respondent.
The fact that there was no allegation and/or proof of alteration of any false document as a genuine document for the purposes of comparing signatures or marks, totally rules out the relevancy of the evidence of PW2 as exception to the general rule of irrelevancy and inadmissibility of opinion/expert evidence under the provision of Section 67 of the Evidence Act.
Indeed, if there was any allegation of forgery via alteration, what the Petitioners’ Appellants needed to produce for comparison and proof are two documents, one false and the other genuine, from the
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same genre, colour, source, one purportedly altered for false claims by the person so alleged. The comparison of certificates issued to different candidates of and by the University of Ibadan cannot amount to any proof of forgery.
Either way, and in all the circumstances, I agree with the Respondents that the Appellants failed to establish or to prove not only that Exhibit R2 was forged but also that the 1st Respondent is disqualified from participating in the said election. See OKOKO v. DAKOLO (2006) LPELR – 2461 (SC); ROCKONOH PROPERTY CO. LTD. v. NIGERIAN TELECOMMUNICATIONS PLC. & ANOR. (2001) 7 SC (Pt. 111) 154.
Issue No. 2 is resolved against the Appellants.
On issue No. 3, learned counsel for the Appellants referred to paragraph 15 of the 3rd Respondent’s reply to the petition and paragraph 32 of the deposition of RW2. He submitted that the petitioners filed a report to the 3rd Respondent’s reply to the petition and in paragraph 7 of the said reply, the Petitioners/Appellants specifically joined issues with the 3rd Respondent on his paragraph 15 of his reply as follows:
7. The Petitioners deny paragraph 15 of the 3rd
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Respondent’s reply to the petition. The petitioners state that:
(a) The University of Ibadan does not issue certificates in A5 paper size.
(b) A5 paper size is actually smaller than A4 paper which is the size of the certificate (photocopy) submitted by the 3rd Respondent to the 1st Respondent (INEC), the Petitioners state categorically that A5 being smaller in size, there is no way a photocopy from A5 into A4 will cause contents of a document to disappear.
Again, in paragraph 10 of the same reply to the 3rd Respondent’s reply to the petition, the Petitioners/Appellants pleaded as follows:
10. The Petitioners deny paragraph 18 of the 3rd Respondent’s reply to the petition. The Petitioners states categorically that the 3rd Respondent is merely telling lies about certificates which he does not have. The Petitioners state categorically that the University of Ibadan does not issue degree certificate in A5 paper size format. The petitioners will rely on:
(a) Other certificates issued by the University of Ibadan to show both the size of the paper and the signatories.
(b) Evidence of forensic Expert examiner to demonstrate that the
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3rd Respondent is parading false and/forged certificate.
(c) Form CF001 and Form EC9 to demonstrate that the certificates attached to both forms are different.
(d) Personal data form submitted by the 3rd Respondent to APC (4th Respondent) to show in particular the purported University of Ibadan certificate attached to the said form bearing the passport of the 3rd Respondent.
He submitted that the Tribunal was totally wrong when it held that the issue of the certificate issued to the 3rd Respondent has become academic because of the tendering of Exhibit R2. He argued that, contrary to the position of the Tribunal that the said Exhibit R2 is totally worthless, because it is contrary to what the 3rd Respondent pleaded as the size of the certificate which the University of Ibadan issued him. That Exhibit R2 was confirmed by the evidence of RW1 to be bigger than A5 paper size which is what was pleaded at paragraph 15 of the 3rd Respondent’s reply to the petition. He submitted that, in the absence of Exhibit R2 which is inadmissible because it is at variance with the pleadings, there is no proof of the fact that the 3rd Respondent indeed has any
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certificate issued by the University of Ibadan.
He urged us to resolve the issue in favour of the Appellants.
On issue No. 3, the Respondents also referred to paragraph 15 of the 3rd Respondent’s reply to the petition, paragraph 32 of the witness depositions of RW2, that the point being made by the 3rd Respondent and his witness was simply that, the size of the original certificate as issued by the University of Ibadan is bigger/larger than the paper on which the photocopy submitted to INEC in 2020, was printed. That, as a result of the difference in size, certain elements of the document (University Certificate) to wit; date and signature of the Registrar of the University, were cut out by the photocopying machine.
The Respondents submitted that the Appellants avoided this crucial point and went on at paragraphs 7 and 10 of the Petitioners’ reply to the 3rd Respondent’s reply to focus on the fact that “A5 is actually smaller than A4.” That, with regards to the real issue, which was whether the original degree certificate of the 3rd Respondent contained date and signature of the Registrar of the University became resolved by the tendering and
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sighting of the original containing the date and signature of the Registrar of the University, through Exhibit R2 by RW1.
In deciding issue No. 3, I agree with the Respondents that, having taken cognizance of the real point being made by the 3rd Respondent, on why the date and signature of the Registrar of the University do not appear on the certificate submitted to INEC, and having seen the original containing the date and signature of the Registrar of the University, the Tribunal was indeed right when it held at page 143 of the judgment (page 3347 of the record) that:
“In our considered view, with the admission of Exhibit R2 in evidence, this argument turns out academic. What is material is that there is an original certificate before us. …… we do not think that in the circumstances, a further consideration of paper sizes would serve any useful purpose and we so hold.”
The above position of the Tribunal cannot be faulted. Indeed, it is right. Courts of law are only obliged to consider and decide on the real issues in controversy. It is not the duty of the Court to consider issues or points that have been otherwise resolved or have been
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overtaken by events. See OKOYE v. TOBECHUKWU (2016) LPELR – 41508 (CA); TRADE BANK PLC v. BENILUX (NIG.) LTD. (2003) 9 NWLR (Pt. 825) Pg. 416; BUNGE v. GOV. OF RIVERS STATE (2006) 12 NWLR (Pt. 995) Pg. 573.
Issue No. 3 is resolved against the Appellants.
On issue No. 4, learned counsel for the Appellants submitted that the Tribunal was wrong when it held that the 3rd Respondent was not bound to attach any certificate to Form EC9 submitted to INEC, the 1st Respondent. He referred to the provision of Section 182 (1) (J) of the Constitution of the Federal Republic of Nigeria (as amended) which provides:
“No person shall be qualified for election to the office of Governor of a State if (J) he has presented a forged certificate to the Independent National Electoral Commission.”
He submitted that whether it is imperative for a candidate to attach a certificate to Form EC9 or not, once a candidate decides to attach any certificate to his form, he has a duty to ensure that the certificate attached to that form is not a forged document. He referred to the cases of MAIHAJA v. GAIDAM (2018) 4 NWLR (Pt. 1610) 454; IBE v. IGBOKWE (2012) LPELR – 15351
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(CA); USMAN v. JIBRIN (2019) LPELR – 48792 (CA).
He submitted that, a person who has violated the constitution cannot turn around to argue that he had no duty to have attached the certificate in the first place. That, once a forged certificate is attached to a form submitted to INEC, that candidate has automatically incurred the penalty in Section 182 (1) (J) of the Constitution and it does not matter whether he was under obligation to submit that certificate to INEC ab initio or not.
He added that Form EC9 actually directs and commands candidates to attach certificate. That item C of Form EC9 directs as follows:
c. SCHOOL ATTENDED/EDUCATIONAL QUALIFICATIONS WITH DATE (Attach evidence of all educational qualifications.
He urged us to resolve the issue in favour of the Appellants.
The Respondents reminded us that issue No. 4 which was derived from Ground 6 of the Appellants’ notice of appeal, is appealing against the statement of the Tribunal at pages 143-144 of the judgment (3347 – 3348 of the record) where the Tribunal stated the Law thus:
“Now, allied to the above argument is the fact that whether in the first place, it was necessary
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for the 3rd Respondent to attached a copy of his Degree and other certificates to his Form EC9 submitted to the 1st Respondent during the 2020 Edo State Gubernatorial Elections.
The law is firmly settled that a candidate is not required by the Constitution or the Electoral Act to attach his certificate to form ZF001 (Form EC9) before the candidate can be considered or adjudged to have requisite educational qualifications to contest election.”
The Respondents submitted that the above reproduced excerpt of the judgment of the Tribunal is merely an obiter dictum of the Tribunal. That, the issue of whether the 3rd Respondent was required by law to submit his University degree certificate was never an issue raised by any of the parties and that it was not the issue for determination in the petition.
They (Respondents) submitted that a critical perusal of the judgment of the Tribunal will show that the above reproduced obiter dictum was not and did not constitute any part of the reasoning or ratio decidendi behind the decision of the Court. That it was just in passing.
The Respondents referred to the case of ONAFOWOKAN & ORS. v. WEMA BANK PLC & ORS.
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(2011) LPELR – 2665 (SC) and argued that it is trite that a pronouncement in passing cannot go to the substance of the appeal. A complaint on the Court’s obiter in a judgment can never constitute an appealable ground of appeal.
It is true that the parties to this case did not join issues on the question whether or not it was mandatory or discretionary for the 3rd Respondent to have attached his certificates to INEC Election Forms. An appeal is fought on the basis of the decision of the Court and is not taken against mere obiter. It is not every pronouncement made by a Court or Tribunal that can be made the subject of an appeal. An appeal is usually against the ratio decidendi of the judgment of a lower Court and not in respect of obiter dicta made by the Court in the course of the said judgment. See ABACHA v. FAWEHINMI (2000) 6 NWLR (Pt. 660) Pg. 228; SAUDE v. ABDULLAHI (1989) 4 NWLR (Pt. 116) 387 SC; OKPEJI v. MINISTER OF AGRICULTURE (1997) 9 NWLR (Pt. 522) 693 (CA).
Appellants’ issue 4 based on Ground 6 of the Notice of appeal is indeed an appeal against obiter dictum, the ground of appeal is invalid and baseless and issue 4
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is accordingly discountenanced.
Learned counsel for the Appellants argued his issues 5 and 6 together as follows:
He submitted that the Tribunal was wrong when it held that the 3rd Respondent did not submit a forged certificate to the 1st Respondent in the run-up to the Gubernatorial Election in Edo State which took place on 19th September, 2020.
He submitted that the following facts could be said to have been established from the findings of the Tribunal:
a) That the certificate attached to Form EC9 Exhibit A4 which is also Exhibit A17 is different in contents from the alleged University of Ibadan certificate issued to the 3rd Respondent which is Exhibit R 2.
b) That apart from the incomplete or forged certificate attached to Exhibits A4 and A17, the 3rd Respondent also attached the same document in that State to Exhibit A5 which he had earlier submitted to the APC for their nomination.
c) That the 3rd Respondent deposed to an affidavit in Exhibit A6 wherein he stated in clear terms that he graduated in 1976 which is different from or contrary to the date in Exhibit R2 the alleged University of Ibadan certificate which bears 1979.
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He submitted that RW1 was the witness of the 3rd Respondent who confirmed that the certificate in Exhibits A4, A17 and A6 do not have the signature of the Registrar of the University and the date of issue contrary to the standard operating procedure obtainable in that University.
He submitted that when Exhibits A4, A17 and A5 are juxtaposed with Exhibit R2, it becomes obvious that the contents of Exhibit R2 are not all reflected in Exhibit A4, A17 and A5 which is the certificate actually submitted by the 3rd Respondent to INEC along with Form EC9.
He submitted that it is not in dispute that the University of Ibadan certificate submitted by the 3rd Respondent to INEC has the date of issue and the signature of the Registrar of the University missing from the document.
He referred first to the cases of MAIHAJA v. GAIDAM (2018) 4 NWLR (Pt. 1610) 454; USMAN v. JIBRIN (2019) LPELR – 48792 (CA) and also to Section 12 of the Evidence Act to say that having submitted the same defective certificate to APC in Exhibit A5, the 3rd Respondent’s action is deliberate and cannot be treated as an accident.
He added that in Exhibit A6,
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the 3rd Respondent deposed to an affidavit by which he deposed to graduating in 1976.
Appellants’ counsel submitted further that, having sworn on oath twice that he graduated in 1976, the 1979 certificate – R2 which bears 1979 cannot be said to belong to the 3rd Respondent.
He submitted that the 3rd Respondent who was faced with this grave allegation did not deem it fit to come to testify before the Tribunal. That rather, it was RW2 (Charity Iguodale Aiguobaregian) who testified on his behalf.
He submitted that the deponent of the oaths in Exhibits A6 and A3 is the 3rd Respondent and not RW2. That RW2 cannot legally and lawfully claim that the 3rd Respondent made a mistake, when the 3rd Respondent himself did not so state. He submitted that the evidence of the RW2 in respect of seeking to contradict or denounce Exhibits A3 and A6 is hearsay and inadmissible.
Appellants’ counsel concluded on issues 5 and 6 that the purported certificate which bears 1979 as date of issue is contrary to the affidavit deposed to by the 3rd Respondent where he claimed to have graduated in 1976 (Exhibit A6).
He urged us to resolve the issues in favour of the Appellants.
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The Respondents answers to Appellants’ issues 5 and 6 could be summarized thus:
1. That PW1 and PW2, that witnessed for the Appellants to proof allegation of forgery and falsification are not credible witnesses and that no Court of law would attach any weight to their evidence.
2. That PW1 under cross examination said that he never worked with the Independent National Electoral Commission (INEC) and the University of Ibadan to know whether the evidence of certificate of forgery is true or false.
3. PW1 also admitted under cross examination that the averments in his written witness statement are not facts within his personal knowledge alone but from the petitioners (Appellants) themselves.
4. PW2, the expert witness admitted under cross examination that the documents forwarded to him with certificate of the 3rd Respondent was never verified from the issuing authority to ascertain the true originality of same.
5. PW1 and PW2 never cited the original certificate of the 3rd Respondent but merely relied on photocopies at their disposal in support of their allegations.
6. That the Appellants witnesses evidence
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on the allegations of forgery and falsification amounted to hearsay evidence.
7. Allegations of forgery and falsification can only be proved by tendering two sets of documents that is, one that is genuine and the other that is false or fake.
8. That the allegation of forgery against the 3rd Respondent by the Appellants is a criminal offence and the standard of proof required is beyond reasonable doubt.
9. That the maker of Exhibit R2 is the University of Ibadan and RW1 had confirmed that Exhibit R2 is genuine.
10. A calm review of the totality of the evidence before the trial Tribunal will reveal that the errors contained in the Affidavit of loss of the original document becomes inconsequential as the document itself has shown the date the certificate was issued.
11. The Respondents say that it is trite that in a claim for declaration as in the instant case, the onus is on the Plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the Defendant. That the Plaintiff must satisfy the Court that upon pleadings and cogent and credible evidence adduced by him, he is entitled to the
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declaration of right in his favour.
12. The Respondents agreed with the position of the trial Tribunal on its finding on page 3348 vol. 5 of the Record which was not appealed against that:
“We are also of the view that Exhibit A6, that is Affidavit of his loss of documents having not been relied upon in 2020 Election cannot in any way aid the petitioner’s case in prove (sic) of the 3rd Respondent gave false information making him unqualified to contest the said election and we so hold.”
And finally,
13. That, the Tribunal subsequently found “our position from the foregoing is that based on evidence before the Tribunal, the petitioners have not been able to prove that the 3rd Respondent has presented as forged or false certificate to the 1st Respondent.”
First, having put forward a definition of ‘forgery’ by reference to the Black’s Law Dictionary 8th Edition in my resolution of issue 2, I adopt my said resolution to Appellants, issues 5 and 6.
The offence of ‘forgery’ is, if a person makes a false instrument with the intention that he or another will use it to induce somebody to accept it as genuine, and by reason of so
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accepting it, to do or not to do some act to his own or any other person’s prejudice.
An intention that the instrument should be accepted as genuine is not sufficient, there must also be an intention to induce the recipient to act or omit to act to his own or another’s prejudice. See R. v. TOBIERRE (1986) 1 ALL ER 346, 82 Cr. App. Rep. 212 2A; R. v. GARCIA 119881 Crim. L. R. 115, CA; R. v. CAMPBELL (1985) 80 Cr. App. Rep. 47 CA.
It is trite that an allegation of forgery even in a civil matter as in the instant case must be proved beyond reasonable doubt. In this, case beyond the patent lack of credibility of the Appellants’ witnesses as catalogued by the counsel for the Respondents, the production of Exhibit R2 totally negates the intention for fraud which is the essential ingredient of forgery. This is because, the basis of the allegation was the genuineness or otherwise of Exhibit R2. By the same token, the allegation of false information on the basis of contradictions between Exhibit R2 and A6 fizzles into being inconsequential. The reason being that the allegation of false information as in the case of forgery requires an intention to deceive
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another from the falsity of such claims.
Perhaps, the Appellants took with levity the entire idea of the ultimate burden of proof which is on the party who alleges the affirmative, in this case, the Appellants. This burden becomes heavy on the Appellants because, whether in civil or criminal proceedings, it would not take into account the weaknesses in the Defendant’s case.
In all the circumstances, I agree with the trial Tribunal first that:
“We are also of the view that Exhibit A6, that is Affidavit of his loss of documents having not been relied upon in the 2020 Election cannot in any way aid the petitioners case in prove (sic) of the fact that the 3rd Respondent gave false information making him unqualified to contest the said election and we so hold.
And also that:
Our position from the foregoing is that based on evidence before the Tribunal, the petitioners have not been able to prove that the 3rd Respondent has presented a forged or false certificate to the 1st Respondent.
Issues 5 and 6 are resolved against the Appellants.
On issue 7, learned counsel for the Appellants submitted that the trial Tribunal erred in law
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when it held that in the circumstances of this case, that the 3rd Respondent had been educated up to least school certificate level or its equivalent.
He submitted that the 3rd Respondent himself stated that he did not attend any primary school in the Form EC9 Exhibits A4 and A17. That it was futile for the Tribunal to have relied on Exhibit R17 tendered by RW2 to conclude that the 3rd Respondent actually attended primary school at all.
He submitted that, in the hands of RW2, Exhibit R17 is nothing but documentary hearsay evidence. He submitted that in Exhibit A3, which is the Form ZF001 submitted by the 3rd Respondent to INEC in 2016, column 3 of that Form, Item 2 which deals with Secondary School, the 3rd Respondent claimed to have attended Secondary School for a period of only four (4) years from 1969 — 1973. That even though the 3rd Respondent tendered Exhibit R18, his Secondary School Certificate, which was issued in June 1973, Appellants’ counsel nevertheless submitted that it is impossible to have attended secondary school for a period less than 5 years.
He noted that the trial Tribunal found that “the 3rd Respondent not only
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relied on Exhibit R17 but also on R18 and R19 in establishing that he is advanced up to secondary school certificate level …“ and that the 3rd Respondent had not violated Section 177 (d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
He however insisted that the 3rd Respondent by his own oath, never attended a primary school and that a person who had incomplete secondary education cannot be qualified as a person who has been educated up to at least school certificate level as to be qualified to contest the disputed election.
On Issue 7, the Respondents submitted that there is nowhere in the record of appeal before this Court where the 3rd Respondent admitted he never attended any primary school. The mere fact that the 3rd Respondent did not complete the said Column C of the Form EC9 does not by any stretch of argument mean admission of not attending primary school or educated up to school certificate level or its equivalent.
The Respondent added that the evidence of RW2 during cross examination was that the mistake that led to the allegation of forgery was made by him (RW2) and never by the 3rd
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Respondent himself and that RW2 is competent to give evidence in defence of the allegation.
Still on issue 7, the Respondents submitted that the original copies of the academic certificates of the 3rd Respondent which were admitted as Exhibits R2, R17, R18 and R19 coupled with the oral testimony of RW2 established the fact that the 3rd Respondent is educated up to school certificate level.
They (Respondents) added that the said Exhibits are also not listed in paragraph 1.24 of the Appellants brief as those objected to by the Appellants at the trial. That the finding of the Tribunal cannot thus be impugned on grounds of consideration of wrongfully admitted documents.
In deciding Appellant’s Issue 7, I have no doubt in my mind that the consideration for qualification under Section 177 (d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) does not lie in the filling or misfiling of Forms as would seem to be suggested by the learned counsel for the Appellants, but whether indeed, on a consideration of the totality of evidence offered, the Respondent could be said to be educated up to at least school certificate level or its equivalent.
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Clearly, the evidence of RW2, coupled with the fact that Exhibits R2, R17, R18 and R19 were not impugned shows that the Tribunal was not in error in holding that the 3rd Respondent has been educated up to the level of school certificate or its equivalent.
Issue 7 is resolved against the Appellants.
On issue 8, learned counsel for the Appellants submitted that the evidence placed before the Tribunal was clearly overwhelming to the effect that the 3rd Respondent participated to the full extent in the primary election process of the All Progressive Congress (APC) before he jumped into the 2nd Respondent to contest the election under the platform of the 2nd Respondent.
He referred to Exhibits A5, A7, A8 and R23 which he said were tendered in proof of double nomination of the 3rd Respondent.
He added that the 3rd Respondent did not deny the fact that he participated in the primary election process of the All Progressive Congress (APC). He referred to the provision of Section 37 of the Electoral Act 2010 (as amended) and submitted that as the law stands, no single individual is allowed to seek the Nomination of
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different political parties in respect of the same elective office and in respect of the same election. He referred on this to the cases of NWOSU v. APP & ORS. (2020) 16 NWLR (Pt. 1749) 28; APC v. CHIMA (2019) LPELR – 48878 (CA); ACHILONU v. CHIMA (2019) LPELR – 48837 (CA).
He submitted that the opinion expressed on the issue in the case of APC v. LERE (2020) 1 NWLR (Pt. 1705) 254 is obiter as the issue of going to another political party was not in issue in the case.
He urged us to hold that the 3rd Respondent knowingly allowed himself to seek double nomination and his nomination is therefore null and void.
In response to Appellants’ issue 8, the Respondents also referred to the provision of Section 37 of the Electoral Act, 2010 (as amended). They then defined terms such as “double” “nomination” and “primaries”.
In particular, the word “nomination” was defined through the case of NWOSU v. APP (2020) 16 NWLR (Pt. 7149) page 28 @ 53 as follows: “Nomination” is part of the process of electing a candidate for election to public office. In the context of election for public office, a candidate who has been selected to represent or
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is endorsed by a political party is said to be the party’s nominee. The process of selection may be based on one or more primary elections or by means of a political party convention or caucus according to the rules of the party and any other applicable election laws so, a nomination exercise when completed, stands apart and is distinct from the participation of the nominee from the election.
Nomination or substitution of a candidate is complete the moment INEC received the necessary documents affecting same from political party within the stipulated time.
The Respondents defined the word ‘Primaries” through Section 156 of the Electoral Act, 2010 to mean “an intra -party election by voters of a given political party to nominate candidates for elective office in accordance with a political party’s Constitution and the Law.’
They (Respondents) also defined the word “double” has used in Advanced English Dictionary (online) as “two together” or as defined by Oxford Advance Learners’ Dictionary (8th ed) as “combining two things”
From the above background, Respondents submitted first that, it is not a true reflection of the evidence that
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the 3rd Respondent did not deny the allegation that he participated in the primary election of the All Progressive Congress (APC). That the evidence of the 3rd Respondent through RW2 is that the 3rd Respondent severed all ties and relationship with APC on 16th June, 2020 by resignation of his membership of APC video Exhibit R20, about a week before the APC conducted their primary election to nominate their candidate for the said Governorship election of 19th September, 2020.
That the 3rd Respondent also tendered as Exhibit R21, the report of the APC primary election held on the 22nd June, 2020, wherein the names of the contestants that participated in the party’s primary election was stated.
The Respondents insisted that the contention by the Appellants’ Petitioners that since the 3rd Respondent had previously expressed interest to contest the primary election of APC before he was screened out and disqualified from the exercise, he cannot subsequently seek to contest the governorship election primary of the 2nd Respondent, is a misconception and misunderstanding of the purport of Section 37 of the Electoral Act 2010 (as amended).
In deciding
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Appellants’ issue 8, I do agree with the counsel to the Respondents and the trial Tribunal that the decision of the 3rd Respondent to seek for nomination under the platform of the 2nd Respondent (PDP) after he was disqualified from participating in the primaries of APC at the screening stage is in consonance with the admonition of the Supreme Court in APC v. LERE (2020) 1 NWLR (Pt. 1705) 254 @ 285.
In other words, “… before a member of the party is cleared, the party has the power to disqualify the member and is answerable to no one, including the Courts. A dissatisfied member’s remedy is to leave the party and seek his political ambitious somewhere else …“ per Rhodes – Vivour JSC.
Finally, I agree with the trial Tribunal that in the circumstances of this case, the 3rd Respondent was not guilty of double nomination as envisaged in Section 37 of the Electoral Act, 2010 (as amended).
Issue 8 is resolved against the Appellants.
The Appellants in this appeal nominated eight (8) issues. Issue 4 based on ground 6 of the Appellants Notice of Appeal was discountenanced as the complaint in ground 6 was based on a non- appealable obiter
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dictum of the Tribunal.
All the other issues formulated for determination of the appeal by the Appellants were resolved against the Appellants. In consequence, this appeal is devoid of merit and it is accordingly dismissed. The judgment of the Edo State Governorship Election Petition Tribunal Coram: Honourable Justice Yunusa Musa (Chairman), Honourable Justice S. Y. Abubakar (Member 1) and Honourable Justice O. O. Stanley (Member 11) delivered on the 29th day of March, 2021 in Petition No. EPT/ED/GOV/01/2020 is hereby affirmed.
Parties to this appeal are to bear their respective costs.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment, just delivered by my learned brother, M.A. Owoade, JCA (PJ) and I agree, completely, with his reasoning and conclusion that the Appeal is bereft of merit, and I equally dismiss it.
I should add that, the entire Petition appeared pretentious and speculatory, being a gamble to use allegation of disqualification and forgery of Certificate to frustrate the victory of the 3rd Respondent, especially as Appellant had performed woefully at the election, and could not qualify to
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be declared winner of the election in the stead of 3rd Respondent. Appellant rather wished the election be nullified and fresh election ordered, which would disqualify the Respondent and his party from taking part.
That means, it was a grand scheme of mischief to undo the 3rd Respondent and his party. I think the law should be reviewed to disallow parties, who performed woefully at election, to bring Petitions just to ventilate their mischief, frustration and waste judicial time, when they know they stood no chance of winning, not being runner up (one who scored the 2nd highest votes) at the election
I also agree with my lord, Owoade JCA, in the lead judgment, that a document which is relevant to the case and had been pleaded by the party seeking to rely on it, is admissible, and cannot be excluded, simply because, it was not frontloaded at the time of filing the processes. See Zarewa & 7 Anor vs Falgore & Ors 2020) LPELR – 50870 CA; INEC vs Yusuf & Ors (2019) LPELR-48890 (SC).
With this and other more elaborated reasons in the lead judgment, I too dismiss this Appeal and abide by the consequential orders in the lead judgment.
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UCHECHUKWU ONYEMENAM, J.C.A.: I have perused before now, the lead judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA.
I agree with the conclusion of my learned brother in the lead judgment. I also hold that the appeal lacks merit and the same is accordingly dismissed. I uphold the judgment of the Governorship Election Petition Tribunal of Edo State in Petition No. EPT/ED/GOV/01/2020; delivered on 29th March, 2021.
AMINA AUDI WAMBAI, J.C.A.: I agree.
ABUBAKAR SADIQ UMAR, J.C.A.: I read in draft, the lead judgment of my brother Mojeed Adekunle Owoade JCA just delivered. I am in agreement with the decision and his conclusion contained therein in the lead judgment.
Having from the detailed reasons contained in the lead judgment of my brother, I too, find no merit in the appeal and also in the cross-appeal. Both appeals stand dismissed, I abide by the consequential order as to cost made in the lead judgment of my brother just delivered.
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Appearances:
Ikhide Ehighelua, Esq. For Appellant(s)
Asiwaju Adegboyega Awomolo, Esq. SAN; with him, Kelvin Uglagbe, Esq. – for 1st Respondent
Adetunji Oyeyipo, Esq. SAN; with him, Rotimi Oguneso, Esq. SAN – for 2nd Respondent
Kenneth E. Mozia, Esq. SAN; with him, O. Jola Awo, Esq. SAN.- for 3rd Respondent For Respondent(s)
