APM v. INEC & ORS (2021)

APM v. INEC & ORS

(2021)LCN/15161(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 26, 2021

CA/B/EPT/GOV/03/2021

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

ALLIED PEOPLES’ MOVEMENT (APM) APPELANT(S)

And

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 2. PEOPLES DEMOCRATIC PARTY (PDP) 3. GODWIN N. OBASEKI 4. PHILIP SUAIBU RESPONDENT(S)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This Appeal is as a result of the dissatisfaction of the Appellant against the Judgment of the Edo State Governorship Election Tribunal sitting in Benin, wherein the Tribunal on 29th March, 2021, entered judgment in favour of the Respondents as follows:
“In the light of the foregoing, we are of the view that from the gamut of evidence placed before this Honourable Tribunal, the petition lacks sufficient evidence to warrant the reliefs sought by the Petitioners, we so hold.
Accordingly, we hereby hold that all the three issues in this petition are resolved in favour of the Respondents and against the Petitioner. This petition lacks merit and it is hereby dismissed

The Appellant’s case commenced by a Petition at the Edo State Governorship Election Tribunal filed on 9th October, 2020, challenging the result of the Edo State Governorship election held on 19th September, 2020. Dissatisfied with the decision of the trial Tribunal, the Appellant appealed by a Notice of Appeal filed on 17th April, 2021. See pages 1856- 1880 of the records.

Upon due filing of relevant processes in

accordance with the Rules of this Court, but before the Appeal was ripe for hearing, the 2nd Respondent argued his motion on notice which ruling was reserved to be delivered along with this judgment. When the appeal was called up for hearing, the 3rd and 4th Respondents argued their Preliminary Objections respectively after which the appeal was heard on 19th May, 2021. A. I OSARENKHOE Esq., appeared for the Appellant; ASIWAJU ADEGBOYEGA AWOMOLO, SAN with J. C. OBIECHINA, ESQ., was for the 1st Respondent; CHIEF CHRIS UCHE, SAN with OLAKUNLE LAWAL, ESQ was for the 2nd Respondent; KEN MOZIA, SAN with ROTIMI OGUNESO SAN, for the 3rd Respondent while CHIEF ADENIYI AKINTOLA SAN with OLUSHOLA O. SAMUEL, ESQ represented the 4th Respondent.

A. I OSARENKHOE Esq., referred to and adopted the Appellant’s Brief of argument dated 5th May, 2021 and filed 6th May, 2021, his reply to the 1st, 2nd, 3rd and 4th Respondents dated 10th May, 2021 and filed on 12th May, 2021 respectively in urging the Court to allow the appeal. The learned counsel for the Appellant formulated thirteen (13) issues for determination from the twenty-six (26) Grounds of Appeal filed. The thirteen

issues are as follows:
1. Whether the provisions of Section 97 and 98 of the Sheriffs and Civil Process Act apply to an election petition as to make non-compliance with the provisions render an election petition incompetent?
2. Whether the issue of the non-qualification of the 3rd and 4th Respondents whose elections were questioned under Section 138 (1)(a) of the Electoral Act, 2010 (as amended) is a pre-election matter under Sections 31(5) and (6) of the Electoral Act, 2010 (as amended) and Section 285(14) of the 1999 Constitution (as altered) that ought to have been filed within 14 days at the High Court and not at the Trial Tribunal?
3. Whether the judgments in Petition No. EDS/HA/EPT/12/2014: Philip Oshiomah Sede & Anor v. Philip Shaibu & 3 Ors and Suit No. FHC/B/83/2011; Chief Sylvanus Eruaga v. Shaibu & Anor and the judgment in Suit No. FHC/B/CS/74/2020; All Progressive Congress & Anor v. Godwin N. Obaseki & 2 Ors and Appeal No. CA/ABJ/CV/71/2020; All Progressive Congress & Anor v. Godwin N. Obaseki & 2 Ors respectively, constitutes a res judicata to Appellant’s petition against the 3rd and 4th Respondents?<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether the failure by the Trial Tribunal to consider the arguments, submissions and authorities in the Final address of the appellant is not a discrimination and denial of fair hearing against the Appellant.
5. Whether the trial Tribunal evaluated the oral and documentary evidence of the appellant as prescribed by Law.
6. On the preponderance of the oral and documentary evidence produced by the Appellant, was the trial Tribunal right to hold that the petition lacked sufficient evidence to warrant the reliefs sought by the Appellant in the petition?
7. On the preponderance of the oral and documentary evidence produced by the appellant, was the trial Tribunal right to hold that the three issues for determination in the petition are resolved in favour of the respondents against the appellant?
8. Whether the appellant did not prove on the preponderance of evidence or on balance of probability that the Edo State Governorship Election held on September, 2020 by 1st respondent was not conducted in substantial compliance with the provisions of Electoral Act, 2010 (as amended) and the Regulations and Guidelines for the Conduct of Election?

Did appellant not prove on the preponderance of evidence or balance of probability that the 3rd respondent did not score majority of lawful votes cast in the Edo State Governorship Election conducted on 19th September, 2020 by 1st respondent?
10. Can the constitutional qualification requirements to contest election into the Office of Governor or Deputy Governor of a State under Section 177(c) of the 1999 Constitution (as altered) be presumed or waived under Section 138(1) (a) of the Electoral Act, 2010 (as amended)?
11. Was the Trial Tribunal right to hold that 3rd and 4th respondents for whom the constitutional qualification requirements to contest election into the Offices of Governor and Deputy Governor of Edo State under Section 177(c) of the 1999 Constitution were waived by 2nd respondent and who did not fully participate in all the stages of the elections were eminently qualified to have contested the elections into the Offices of Governor and Deputy Governor of Edo State, respectively?
12. Is presentation of forged certificate by a candidate for an election under Section 182(1)(j) of the 1999 Constitution (as altered) a

criminal case requiring proof beyond reasonable doubt and whether appellant did not prove that 3rd and 4th respondents presented forged certificates to INEC?
13. Was it necessary for the appellant to tender the results of all the polling units in the governorship election conducted in Edo State by 1st respondent on 19/9/2020 and call its polling agents in each polling unit to prove the omission of the scores of the appellant in the polling units result sheets used in the election?

ASIWAJU ADEGBOYEGA AWOMOLO, SAN for the 1st Respondent adopted and relied on their brief of argument dated 8th May, 2021 but filed on 10th May, 2021 and urged the Court to dismiss the appeal. In the said 1st Respondent’s Brief of argument, 5 issues were raised for determination as follows:
1. Whether the trial Tribunal was not right to have struck out the petition, the Appellant having failed to comply with the mandatory requirement of the statute of the National Assembly of the Federal Republic of Nigeria.
2. Whether the Tribunal was right in striking out paragraph B and C of the petition, the Appellant having not complied with the provisions of

Section 285(14) of the 1999 Constitution (as amended)
3. Whether the trial Tribunal was correct to rely on the judgment in petition No. EDS/HA/EPT/12/2014 Philip Oshiomah Sede & Anor. V. Philip Shaibu & Anor and the judgment in Suit No. FHC/B/CS/74/2020; All Progressive Congress & Anor V. Godwin N. Obaseki & 2 Ors and Appeal No. CA/ABJ/CV/71/2020; All Progressive Congress & Anor. V. Godwin N. Obaseki & 2 Ors respectively, to determine the Appellant’s complain against the 3rd and 4th Respondent respectively which were basically on pre-qualification.
4. Whether the Tribunal must pronounce on every argument, submission and authorities that have been covered by other issue determined.
5. Whether the Tribunal was right to have held that the 3rd and 4th Respondents being candidates did not submit a forged certificate to INEC.

CHIEF CHRIS UCHE, SAN for the 2nd Respondent in response adopted and relied on the referred Respondent’s brief of argument dated 7th May, 2021 but filed on 10th May, 2021 in urging the Court to dismiss the appeal. In the said 2nd Respondent’s Brief of argument, 2 issues were raised for determination as follows:

Whether the Tribunal was right in upholding the Preliminary Objection of the Respondents by striking out grounds (b) and (c) of the petition relating to the qualification of the 3rd and 4th Respondents to contest election as being pre-election complaints. (Distilled from Grounds 1, 2, 3 and 9 of the Notice of Appeal).
2. Whether having regard to the state of pleadings and evidence led, the Tribunal was right to hold that the petition was bereft of sufficient evidence to warrant granting the relief sought by the Appellant and consequently dismissing the petition for lacking in merit. (Distilled from Grounds 4, 5, 6, 7, 8, 10, 11, 20, 21, 22, 23, 24, and 26 of the Notice of Appeal).

OGUNESO, SAN handling the proceedings for the 3rd Respondent, adopted the brief of argument filed on 9th May, 2021 and urged the Court to dismiss the appeal. In the said 3rd Respondent’s Brief of argument, he distilled 8 issues for determination as follows:
i. Whether the lower Tribunal was right when it held that the Appellant must comply with the mandatory provisions of Section 97 & 98 of the Sheriff and Civil Process Act when serving a

Petition outside jurisdiction. (Ground 1)
ii. Whether the issue of qualification of the 3rd and 4th Respondents is not a pre-election matter and has become statute barred which robbed the lower Tribunal of the requisite jurisdiction to entertain same. (Grounds 2 & 3)
iii. Whether the judgments in Petition No EDS/HA/EPT/12/2014 Philip Oshiomah Sede & Anor v. Philip Shaibu & 3 Ors delivered on 22nd October, 2011 (Unreported); Suit No. FHC/B/83/2011 Chief Sylvanus Peters Eruaga v. Shaibu & Anor delivered on 13th February, 2014 (Unreported); suit No. FHC/B/CS/74/2020 All Progressive Congress (APC) & Anor v. Godwin Nogheghase Obaseki & 2 Ors and Appeal No CA/ABJ/CV/71/2020 All Progressive Congress (APC) & Anor v. Godwin Nogheghase Obaseki & 2 Ors respectively serves as res judicata on the issues of forged or fake documents presented by the 3rd and 4th Respondent to the 1st Respondent. (Grounds 4, 5, & 16)
iv. Whether in the circumstances of the Petition and the way in which the trial Tribunal resolved the relevant issues for determination, it can be said that the Appellant was denied fair hearing. (Grounds 6, 7,

23, 24 and 26)
v. Whether based on the facts and circumstances of the Petition, there was sufficient evidence to establish non-compliance or irregularities capable of voiding the return of the 3rd Respondent as a winner of the election (Grounds 8, 18, 19, 20 & 21)
vi. Whether based on the evidence adduced at the lower Tribunal, the Appellant was able to rebut the presumption of regularity of election conducted by the 1st Respondent and return of the 3rd Respondent and the sponsorship of the 3rd and 4th Respondents by the 2nd Respondent. (Grounds & 13)
vii. Whether the lower Tribunal was right when it failed to apply the facts of the petition vis-a-vis the decision of the Supreme Court in Modibo v. Usman (2020) 3 NWLR (Pt. 1712) 470 and Peoples Democratic Party (PDP) & Ors v. Biobarakuma Degi-Eremiengo (2020) ALL FWLR (Pt. 1032) 526 regarding the onus of prove when issue of forgery is raised in a Petition.(Ground 10)
viii. Whether having regards to the state of pleadings and evidence proffered and tendered by the parties, the lower Tribunal was right in holding that the evidence of the polling units agent are very material to

prove the allegations of what transpired at the polling units. (Grounds 12, 14 & 22).”

CHIEF ADENIYI AKINTOLA SAN represented the 4th Respondent. He adopted his brief of argument dated and filed on 10th May, 2021 and relied on the same in urging the Court to dismiss the appeal. In the 4th Respondent’s Brief of argument, he raised 6 issues for determination as follows:
1. Whether the provisions of Sections 97 and 98 of the Sheriff’s and Civil Process Act do not apply to originating processes in an Election Petition which was required to be served concurrently both within and outside the state of issue. (Appellant’s Issue 1)
2. Whether the allegation of non-qualification of the 3rd and 4th Respondents which was based on documents attached to Form EC9 is not pre-election matter which ought to have been ventilated at the High Court within 14 (fourteen) days of the occurrence of the cause of action. (Appellant’s Issue 2)
3. Whether the trial Tribunal is bound by the arguments canvassed in the Appellant’s Final Written Address. (Appellant’s Issue 4)
4. Whether the Appellant discharged the burden of proof required of it by

statutes before the trial Tribunal to warrant judgment on its favour. (Appellant’s Issues 5, 6, 7, 8, 9, 12 and 13)
5. Whether the 3rd and 4th Respondents did not participate in all the stages of the election (Appellant’s Issue 10 und 11).
6. Whether the judgments in Petition No EDS/HA/EPT/12/2014; Philip Oshiomah Sede & Anor v. Philip Shaibu & 3 Ors and Suit No. FHC/B/83/2011; Chief Sylvanus Eruaga v. Shaibu & Anor and the judgments in Suit No FHC/B/CS/74/2020; All Progressives Congress & Anor v. Godwin N. Obaseki & 2 Ors and Appeal No. CA/ABJ/CV/71/2020; All Progressives Congress & Anor v. Godwin N. Obaseki & 2 Ors respectively, do not constitute res judicata to the Appellant’s Petition against 3rd and 4th Respondents on the issues of forgery of their education certificate and their qualification to stand for election in Nigeria. (Grounds 4, 5 and 16)

Before I proceed with the appeal, I shall first deliver my ruling on the motion on notice filed by the 2nd Respondent.

RULING ON MOTION ON NOTICE OF THE 2ND RESPONDENT
The 2nd Respondent on 10th May, 2021 filed a Motion on Notice, brought pursuant to

Order 6 Rule 1, Court of Appeal Rules 2016, and under the inherent jurisdiction of the Court. The application prayed for two orders to wit:
(1) An order of this Honourable Court striking out grounds 12, 13, 14, 15, 16, 17, 18 and 19 as contained in the Appellant’s notice of appeal dated 13th April, 2021 and filed on 14th April,2021.
(2) An order of this Honourable Court striking out issues 3, 9, 10, 11 and 13 as contained in the Appellant’s brief of argument dated 5th May, 2021 and filed on 6th May 2021.
The grounds for the application are inter alia:-
A. Grounds 12, 13, 14, 16, 18 and 19 of the Appellant’s Notice of Appeal attacks the Tribunal’s summary of the arguments canvassed by the Respondents’ in their respective final written addresses.
B. The said Grounds 12, 13, 14, 15, 16, 17, 18 and 19 of the Appellant’s Notice of Appeal are not against the ratio of the Tribunal’s judgment,
C. The Appellant’s issues 3, 9, 10, 11 and 13 are incompetent having been formulated from Grounds 12, 13, 14, 16, 18 and 19 which are also incompetent.
D. That no issues for determination were distilled from Grounds 15, 17 and 25 and are deemed abandoned.

In support of the Application is a 4 paragraph affidavit, deposed to by one MR. EMMANUEL TSEBO and a written address.

CHIEF CHRIS UCHE, SAN for the 2nd Respondent raised a sole issue for determination thus:
Whether the delineated grounds of appeal, issues distilled therefrom and arguments predicated thereon are not incompetent and ought to be struck out?

The Appellant in opposition to the motion seeking to strike out some grounds of appeal and issues for determination filed an 8 paragraph counter affidavit on 12th May, 2021, deposed to by one MERCY PIUS. In support of the counter affidavit, is a written address.

The learned senior counsel for the 2nd Respondent argued that Grounds 12, 13, 14, 16, 18 and 19 of the Appellant’s Notice of Appeal are attack on the Tribunal’s summary of the arguments canvassed by the Respondents in their respective final written addresses and that Grounds 12,13,14,15,16,17,18 and 19 of the Appellant’s Notice of Appeal are not against the ratio of the Tribunal’s judgment.

It is a well settled position of the Law that grounds of appeal against a decision must relate to the decision and

should constitute a challenge of the ratio decidendi of the decision. See GTB V. INNOSON NIGERIA LTD (2017) LPELR-42368 (SC); K.R.K. HOLDINGS (NIG) LTD V, FBN & ANOR (2016) LPELR-41463 (SC); OKPONIPERE V. STATE (2013) 10 NWLR (PT. 1362) 209.

I have had a good consideration of the judgment of the trial Tribunal, as well as the Notice and Grounds of Appeal of the Appellant. I have perused the Appellant’s ground 12 as contained at page 1824 of the record of appeal; ground 13 at page 1829 of the record of appeal; ground 14 at page 1831 of the record of appeal; ground 15 at page 1833 of the record; ground 16 at page 1834 of the record of appeal; ground 17 at page 1835 of the record; ground 18 at page 1836 and ground 19 at page 1837 of the record of appeal respectively.

An appeal is not against the obiter dictum of a judgment. Grounds of appeal are the complaints of the Appellant against the judgment which is appealed. For Grounds of appeal to be valid and competent, they must be related to the decision against which the appeal lies and should constitute a challenge against the ratio of the decision on appeal. Where the grounds of appeal as

formulated do not arise from the judgment and purport to raise an attack on issues not decided by the judgment appealed against, such grounds are incompetent and are liable to be struck out. See SANMI V. STATE (2019) LPELR-47418 (SC); MEKWUNYE V. EMIRATES AIRLINE (2019) LPELR-46553 (SC).

In the instant appeal, Grounds 12, 13, 14, 16, 18 and 19 of the Appellant’s Notice of Appeal constitute a challenge of the trial Tribunal’s summary of the case and not the decision of the Tribunal. The Tribunal summarized the facts and submissions of the parties basically at pages 1776 to 1845 of the record of appeal. The resolutions of the issues for determination of the trial Tribunal are contained at pages 1845 to 1854 of the record of appeal. From the records, it is apparent that the referred grounds under attack were raised from the summary of facts and submissions of counsel as against the ratio of the judgment. Consequently, I hold that Grounds 12, 13, 14, 15, 16, 17, 18 and 19 of the Appellant’s Grounds of Appeal are incompetent, the same having failed to challenge the ratio decidendi of the judgment appealed against. Grounds 12,13, 14, 15, 16, 17, 18 and 19 of

the Appellant’s Grounds of Appeal are hereby struck out.

Having struck out Grounds 12, 13, 14, 15,16, 17,18 and 19 of the Appellant’s Grounds of Appeal, I hold that the Appellant’s issues 3, 9,10,11 and 13 are incompetent having been formulated from Grounds 12,13,14,16,18 and 19 which are adjudged incompetent. Issues 3, 9, 10, 11 and 13 of the Appellant’s issues for the determination of the appeal being incompetent are hereby struck out.

The learned counsel for the 2nd Respondent submitted that no issues for determination were distilled from Grounds 15, 17 and 25 and are deemed abandoned. Having held that, Grounds 12, 13, 14, 15, 16, 17, 18 and 19 of the Appellant’s Notice of Appeal are incompetent and the same struck out; the submissions of the learned senior counsel for the 2nd Respondent in respect of Grounds 15 and 17 which have been struck out have become academic.

Now, on whether any issue was distilled from Ground 25, I have carefully inspected the Appellant’s brief of argument particularly at pages 1 and 2, the Appellant did not distill any issue for determination from Ground 25 of the grounds of appeal and the same is deemed

abandoned. I so hold.

In all, I hold that the application of the 2nd Respondent has merit. The same is granted in terms of my holdings above.
I shall now proceed to the appeal.

APPEAL
In line with the rules of this Court, I will determine the Preliminary Objections of the 3rd and 4th Respondents before proceeding to determine the main appeal.

3RD RESPONDENT’S PRELIMINARY OBJECTION
OGUNESO, SAN for the 3rd Respondent in his preliminary objection challenged the competence of the Appellant’s brief of argument contending that the same was filed outside the 10 days prescribed by the Election Tribunal and Practice Directions of the Court. The learned senior counsel submitted that election petitions are sui generis and hence, defaults in the time of filing process is not an irregularity that can be regularized. He relied on: BUHARI V. INEC (2003) 6 SC (PT. 11) 15; BENSON V. ALLISON (1955-56) WRNLR 58; EMERUE V. NKERENWEN (1966) 1 ALL NLR 63; IGE V. OLUNLOYO (1984) 1 SCNLR 158.

The learned senior counsel relying on the record of appeal dated 24th April, 2021 submitted that the Appellant’s brief of argument filed on 6th May, 2021

is incompetent, the same having been filed outside the 10 days prescribed by Law. He relied on YAKI & ANOR V. BAGUDU & ORS (2015) LPELR-25721 (SC) and urged the Court to strike out the appeal for being incompetent.

A.I OSARENKHOE ESQ., in his reply to the preliminary objection dated 10th May, 2021 and filed on 12th May, 2021, submitted that the Preliminary Objection lacks merit. The learned counsel argued that the Record of Appeal was served on the Appellant on 27th April, 2021 and the Appellant’s brief of argument was filed on 6th May, 2021 which is within the period prescribed by Law and urged the Court to discountenance the frivolous objection.

Primarily, election matters are sui generis and time is of essence in the doing of any act stipulated to be done in an election matter. Therefore, in an election matter, the time stipulated by the Constitution, the Electoral Act with its Schedules and or the Practice Directions is sacrosanct and immune from violation. There is no statutory provision for the elongation of time within which processes in election matters can be filed. Thus, the Court has no discretion to grant enlargement of time even when

sought for by a party who failed to file a process within the allowed time.
Accordingly, failure to appropriately comply with the provisions of the relevant Laws, rules or practice directions in an election matter as regards time for filing processes is fatal to the case of the defaulting party. See: LOKPOBIRI V. A.P.C (2021) 3 NWLR (PT.1764) 538 (SC), OMISORE V. AREGBESOLA (2015) LPELR – 24803 (SC); OBIORAH V. EMEKA & ORS (2015) LPELR — 41575 (CA); OLUFEMI V. INEC (2009) 32 WRN 105 @ 138; OHOCHUKWU V. EMEREGWA (1999) 5 NWLR (PT. 602) 179; PDP V. INEC (2014) 17 NWLR (PT. 1437) 525@ 553 – 554.

There is no controversy that an Appellant in a pre-election appeal has 10 days from the date the record of appeal is served on him to file and serve his Appellant’s brief of argument on the Respondent. See Paragraph 10 of the Election Tribunal and Court Practice Directions, 2011. It is the contention of the 3rd Respondent that the Appellant who filed his brief on 6th May, 2021, filed the same outside the 10 days provided for by the Election Tribunal and Court Practice Directions, 2011. The contention of the learned senior counsel for the 3rd

Respondent that the record of appeal was served on the Appellant on 24th April 2021 is not backed with any prove. No proof of service of the bailiff of this Court is placed before the Court to prove his assertion. The mere assertion that the Appellant was served on 24th April, 2021 does not in any way prove service of the Records on the Appellant on the date alleged. The Appellant on her own deposed to an affidavit of service to establish when service was effected on her. While this is commendable, it is not the settled absolute proof of when the Appellant was served. The Court recognizes affidavit of service by a Court bailiff who served the process as the absolute proof of service of the said process.

Howbeit to settle the dispute, I have peeped into the Court’s file and found that the record of appeal was transmitted on 26th April, 2021 and served on the Appellant on 27th April, 2021 at about 08:11 am. Flowing from the Court’s records therefore, I hold that the record of appeal was served on the Appellant on 27th April 2021. Accordingly, the Appellant’s brief of argument filed on 6th May, 2021 being the 10th day from the date of service of the record of

appeal was filed within time.

The preliminary objection of the 3rd Respondent therefore lacks merit and the same is hereby discountenanced. I hold that the Appellant’s brief filed on 6th May, 2021 is competent.

PRELIMINARY OBJECTION OF THE 4TH RESPONDENT
The learned senior counsel for the 4th Respondent in the 4th Respondent’s brief of argument filed on 10th May, 2021 raised a Preliminary Objection on the following grounds:
1. All the Grounds of Appeal did not arise or flow from the ratio decidendi of the Tribunal’s judgment appealed against herein by the Appellant.
2. Grounds of Appeal in appellate proceedings must strictly arise/flow from, challenge or attack the ratio decidendi of a judgment or decision appealed against by an Appellant to be competent or valid.

He urged the Court to strike out the Appellant’s brief for being incompetent. In the Appellant’s reply to the 4th Respondent’s brief of argument filed on 12th May, 2021, he submitted that the objection of the 4th Respondent is misconceived and should be overruled and dismissed. The argument contained in the Preliminary Objection of the 4th Respondent is similar to

the arguments in the 2nd Respondent’s Application which I had earlier determined in this judgment. Upon due consideration of the objection of the 4th Respondent, I adopt my earlier holding on Grounds 12,13,14,15,16,17,18 and 19 of the Appellant’s Notice of Appeal; Issues 3, 9, 10, 11 and 13 of the Appellant’s issues for determination; and my holding that the Appellant did not distill any issue for determination from Ground 25 of the Grounds of appeal. From the judgment of the Tribunal and the Grounds of Appeal of the Notice of appeal, I do not agree with the learned senior counsel for the 4th Respondent that all the other grounds of appeal and issues raised therefrom are incompetent for any reason.

I hold that the Preliminary Objection of the 4th Respondent succeeds in part only to the extent that Grounds 12,13,14,15,16,17,18 and 19 of the Appellant’s Notice of Appeal and Issues 3, 9, 10, 11 and 13 of the Appellant’s issues for the determination of the appeal are struck out while Ground 25 of the grounds of appeal is deemed abandoned.

Consequently, having overruled the preliminary objection by the 3rd Respondent for lacking in merit and having

held that grounds 12,13,14,15,16,17,18 and 19 of the Grounds of appeal are incompetent for not emanating from the ratio of the judgment of the trial Tribunal and struck out issues 3, 9, 10, 11 and 13 distilled there from, I shall proceed to the main appeal based on the remaining grounds of appeal and issues arising from them.

MAIN APPEAL
I have carefully perused all the issues raised by the Appellant and all the Respondents and I am of the view that adopting the issues raised by the Appellant who is the initiator of the appeal would determine the appeal. However, having struck out issues 3, 9, 10, 11 and 13 of the issues raised by the Appellants for being incompetent, I shall adopt the remaining competent issues, which are: Issues 1, 2, 4, 5, 6, 7, 8, 9 and 12 for the determination of the appeal. Howbeit, while issues 1, 2, and 12 shall stand on their own respectively, issues 4,5,6,7 and 8 shall be rephrased as one issue. Therefore, the four issues for determination shall read thus:
1. Whether the provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act apply to an election petition as to make non-compliance with the provisions

render an election petition incompetent?
2. Whether the issue of the non-qualification of the 3rd and 4th Respondents whose elections were questioned under Section 138 (1)(a) of the Electoral Act, 2010 (as amended) is a pre-election matter under Section 31(5) and (6) of the Electoral Act, 2010 (as amended) and Section 285(14) of the 1999 Constitution (as altered) that ought to have been filed within 14 days at the High Court and not at the Trial Tribunal?
3. Whether the Trial Tribunal adequately evaluated both the oral and documentary evidence of the Appellants so as not to breach his right to fair hearing.
4. Whether presentation of forged certificate by a candidate for an election under Section 182(1)(j) of the 1999 Constitution (as altered) a criminal case requiring proof beyond reasonable doubt and whether Appellant did not prove that the 3rd and 4th respondents presented forged certificates to INEC?

SUBMISSIONS ON ISSUES
ISSUE ONE
Whether the provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act apply to an election petition as to make non-compliance with the provisions render an election petition incompetent?

I OSARENKHOE, ESQ for the Appellant on this issue submitted that election petition is sui generis with a unique practice and procedure different from the practice of ordinary civil proceedings. He relied on BUHARI V. YUSUF (2003) 14 NWLR (PT. 841) 446 AT 514 – 515; NWANKWO V. YAR’ADUA (2010) 12 NWLR (Pt. 1209) 158 AT 588; SECTION 145(1) OF THE ELECTORAL ACT, 2010.
The learned counsel submitted that where a legislation lays down a procedure for doing a thing, as it is in the instant case, there should be no other method for doing it, for the express mention of one thing is the express exclusion of others. He relied on UDE V. NWARA (1993) 2 NWLR (PT. 278) 638 AT 661 PARA D (SC); IBRAHIM V. INEC (1999) 8 NWLR (PT. 614) 334 AT 352 (CA); OGBUNYIYA V. OKUDO (1979) 6-9 SC 32; UDOH V. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (1993) 7 NWLR (PT. 304) 139.

He argued that if it were the intention of makers of the Electoral Act 2010 to make the provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act applicable to the service of processes and proceedings of election petitions in general, they would have stated so expressly.

He argued that by the mode of commencement and nature of election petitions Sections 97 and 98 of the Sheriffs and Civil Process Act are not applicable to election petitions. He relied on Section 133 (1) of the Electoral Act, 2010.

The learned counsel contended that Paragraph 6 of the First Schedule is very simple, straightforward and clear and thus draws no distinctions among boundaries of the States of the Federation of Nigeria for the purpose of service and the Court cannot interpret otherwise where the provision is unambiguous. He relied on BUHARI V. YUSUF (SUPRA); NYESOM V. PETERSIDE (2016) 7 NWLR (PT. 1512) 452 AT 511 K-F.

The learned counsel contended that all the cases cited by the Respondents’ counsel, which the trial Tribunal, without any study or analysis, applied to strike out the petition for non-endorsement as prescribed by Sections 97 and 98 of the Sheriffs and Civil Process Act were non-election petition cases but cases decided on writs of summons in ordinary civil proceedings by High Courts and not decided by election Tribunals.

He finally submitted that the jurisdiction of the trial Tribunal can be said to be similar to or

even coordinate with the territorial jurisdiction of the Federal High Court by reason of the application of the Civil Procedure Rules of the Federal High Court to the processes and proceedings of the Trial Tribunal. Thus, no leave is required to issue and serve an election petition from one State to another State as the jurisdiction of the Federal High Court is nationwide, and so is that of the trial Tribunal. He referred to AKEREDOLU V ABRAHAM & ORS (2018) LPELR – 44067 (SC); PARAGRAPHS 8(2) AND 54 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010.

The learned counsel finally urged the Court to set aside the rather pedestrian, unserious, thoughtless and highly simplistic ruling of the trial Tribunal striking out the petition.

The learned senior counsel for the 1st, 2nd and 4th Respondents submitted that there is no Law that differentiates between ordinary civil matter and election matter in the applicability of Sections 97 and 98 of the Sheriffs and Civil Process Act Cap 407, Laws of the Federation of Nigeria, 2004. It was further submitted that the petition challenging the declaration and return of the 3rd Respondent as Governor of Edo

State consequent to his being declared the winner of the election held on 19th September, 2020 is not a petition which has its effect all over the federation.

The learned senior counsel for the 3rd Respondent submitted that the Respondent at the trial Tribunal contested the service of the Petition on the 1st Respondent at its Abuja office without any evidence to show that the leave of the trial Tribunal was sought to serve the petition outside Abuja. He however conceded to the argument of the Appellant that the leave of Court is not required in order to serve the Petition on the 1st Respondent in Abuja. He relied on NYESOM V. PETERSIDE (2016) 7 NWLR (PT. 1512) 452 AT 511 E-F.

The learned senior counsel though argued that it is not every error in a Court’s judgment that would lead to the setting aside of a judgment or decision. He submitted that it must be material and germane before such an error would have the nullifying effect. He relied on the cases of AMASIKE V. REGISTRAR GENERAL CAC (2010) 7 MJSC 86, MOBIL PRODUCING (NIG) UNLTD V. JOHNSON & ORS (2018) LPELR- 44359 (SC); ONTARIO OIL & GAS LTD. V. F.R.N (2018) 13 NWLR (PT. 1636)

197 @ (P. 224, PARA. C); (EZEOKE V. NWAGBO (1988) 1 NWLR (PT. 72) 616; MORA V. NWALUSI (1962) 2 SCNLR 73; UDEZE V. CHIDEBE (1990) 1 NWLR (PT. 125) 141 REFERRED TO). (P. 256, PARIS. C-D).
The Respondents urged that the issue be resolved in their favour.

RESOLUTION OF ISSUE ONE
The well settled principle of Law that proceedings in election petitions are sui generis is cast on stone. That is, election petitions are in a class of their own. They are not identical with civil or criminal proceedings, hence, are governed by their own statutory provisions which regulate their practice and procedure. See OKECHUKWU V. OBIANO (2020) 8 NWLR (PT. 1726) 276 (SC); EZENWO V. FESTUS (2020) 16 NWLR (PT. 1750) 353 (SC); MATO V. HEMBER (2018) 5 NWLR (PT. 1612) 258 (SC); NYESOM V. PETERSIDE (2016) 7 NWLR (PT.1512) 452 AT 509.
There is a great distinction between election matters and regular matters in Court. Election matters, unlike most ordinary civil suits, are time-bound. Time is of great essence. Accordingly, the general principle of Law in civil matters is not always applicable. See NYESOM V. PETERSIDE (2016) 7 NWLR (PT.1512) 452 AT 509 (SC);

A.P.C. V. P.D.P. (2015) 15 NWLR (PT. 1481) (SC); SECTION 285(6) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED). The whole concept of election petitions being sui generis is to project the peculiarity of election matters in terms of the reliefs sought, the time element and the peculiar procedure adopted for the hearing of the petition and all that. See BUHARI V. INEC (2008) 19 NWLR (PT. 1120) 246 (SC). As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs. See OKECHUKWU V. OBIANO (2020) 8 NWLR (PT. 1726) 276 (SC).

Principally, the Law applicable to election petitions is the Electoral Act, 2010 (as amended). For the purpose of the practice and procedure to be followed and adopted in election petitions, the First Schedule (Rules of Procedure for Election Petitions) to the Electoral Act 2010 (as amended) was enacted as a subsidiary legislation under the Act. Also the President of the Court of Appeal may issue practice directions to election Tribunals. See NYESOM V. PETERSIDE (2016) 7 NWLR (PT. 1512) 452 AT 509; SECTION 145 OF THE ELECTORAL ACT.

In Section 145 (1) of the Electoral Act, 2010, it is specifically and specially provided that: ‘The rules of procedure to be adopted for election petitions and appeals arising therefrom shall be as set out in the First Schedule to this Act.” This provision in my view is mandatory having employed the peremptory word “shall”. See NWANKWO V. YAR’ADUA (2010) 12 NWLR (PT. 1209) 158 AT 588. In UDE V. NWARA (1993) 2 NWLR (PT. 278) 638 AT 661 PARA D, the Supreme Court held that: “It is trite that once the Law has prescribed a particular method or exercising a statutory power, any other method of exercise of it is excluded”. See also IBRAHIM V. INEC (1999) 8 NWLR (PT. 614) 334 AT 352.

I note the fact that the Electoral Act 2010 itself permissively made the Federal High Court (Civil Procedure) Rules applicable, mutatis mutandis, where there appears to be a lacuna or inadequate provisions as to the practice and procedure for any issue in an election petition under the First Schedule. Therefore Paragraph 54 of the First Schedule provides:
“Subject to the provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition

shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.”
Accordingly, and in my view, by the provisions of Paragraph 54 of the First Schedule to the Electoral Act 2010, the only other legislation on practice and procedure applicable to the proceedings of an election petition is the Federal High Court (Civil Procedure) Rules and no other. I hold that the express mention of one thing is the express exclusion of others. The maxim exclusio unius est alterius exclusion is followed. See OGBUNYIYA V. OKUDO (1979) 6-9 SC 32; UDOH V. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (1993) 7 NWLR (PT. 304) 139.

I further hold the view that if it was the intention of the Law makers of the Electoral Act 2010 to make the provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act Cap. S6. Laws of the Federation of Nigeria

applicable to the processes and proceedings of election petitions, they would have stated so expressly in the provisions of the Act or the Schedule thereto.
Let me also herein note and express opinion on Sections 97 and 98 of the Sheriffs and Civil Process Act as it relates to this issue. The referred sections provide thus:
Section 97:
“Every writ of summons for service under this part out of the State or the Capital Territory which it was issued shall, in addition to any endorsement or notice required by the Law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say) –
“This summons (or as the case may be) is to be served out of the State (or as the case may be) and in the State (or as the case may be)”.
Section 98
“A writ of summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or the Capital Territory and shall in that case be marked as concurrent.”
The above provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act clearly

relate only to writ of summons and not to election petitions. The Electoral Act, 2010 (as amended) and the First Schedule thereto as shown above did not make the provisions of the Sheriffs and Civil Process Act applicable to the service of processes or proceedings of election petitions heard and determined by Election Tribunals neither did the Sheriffs and Civil Process Act make its provisions applicable to the service of processes or proceedings of election petitions heard and determined by Election Tribunals. Furthermore, by Sections 2, 19 and 95 of the Sheriffs and Civil Process Act, the Act expressly made the provisions of the Act applicable only to the processes and proceedings of a High Court and a Magistrate’s Court without the contemplation of an Election Petition Tribunal.
Driving the point home is the fact that actions are not commenced at Election Tribunals by writ of summons but by an election petition. See Section 133(1) of the Electoral Act, 2010. I therefore hold that since under and by virtue of Section 133(1) of the Electoral Act 2010, the process by which an election is questioned is known as “election petition” and not a “writ of

summons”; the process (election petition), is presented at an appropriate and competent Election Tribunal and not at the High Court or a Magistrate Court and in accordance with the provisions of the Constitution or of the Electoral Act and not in accordance with the provisions of the Sheriffs and Civil Process Act, the inapplicability of Sections 97 and 98 of the Sheriffs and Civil Process Act is thus firmed.
Furthermore, by the Law governing election petitions, which Law allows recourse to the Federal High Court (Civil Procedure) Rules, such recourse must be subject to the express provisions of the Electoral Act. Thus, it is only where the Electoral Act or its First Schedule does not provide for a particular procedure, that is, where there is a lacuna in the Electoral Act as regards practice and procedure in any election petition that reference would be made to the Federal High Court (Civil Procedure) Rules with necessary modifications. See: NYESOM V. PETERSIDE (2016) 7 NWLR (PT.1512) 452 AT 509, PARA C-G; PARAGRAPH 54 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010; ABUBAKAR V. I.N.E.C (2020) 12 NWLR 99.
Again, even where the applicability or

otherwise of Sections 97 and 98 of the Sheriffs and Civil Process Act was not foreclosed by the provisions of the Sheriff’s Act itself by restricting itself to be applicable only to writ of summons filed in the High Court or Magistrate Court, there is no lacuna in the Electoral Act as regards service of election petitions to accommodate the Sheriffs Act. This is for the fact that Paragraphs 6-8 of the First Schedule of the Electoral Act adequately provided for the issuance and service of election petitions. Consequently, it is not necessary to resort to the Federal High Court (Civil Procedure) Rules let alone the provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act. See NYESOM V. PETERSIDE (2016) 7 NWLR (PT. 1512) 452 509-511, PARA H-, ABUBAKAR V. I.N.E.C (2020) 12 NWLR 99.
Flowing from the above, it is my view and I so hold that Sections 97 and 98 of the Sheriffs and Civil Process Act are not applicable to election petitions. The learned trial Judge was wrong to strike out the Petition for incompetence on ground of failure to comply with the provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act.

I resolve issue 1 in favour of the Appellant.

SUBMISSIONS ON ISSUE TWO
Whether the issue of the non-qualification of the 3rd and 4th Respondents whose elections were questioned under Section 138 (1)(a) of the Electoral Act, 2010 (as amended) is a pre-election matter under Section 31(5) and (6) of the Electoral Act, 2010 (as amended) and Section 285(14) of the 1999 Constitution (as altered) that ought to have been filed within 14 days at the High Court and not at the Trial Tribunal?

A. I OSARENKHOE, ESQ for the Appellant on this issue submitted that one of the grounds that the Appellant contested the election is that the 3rd and 4th Respondents whose election is questioned were at the time of the election not qualified to contest the election by virtue of Section 166(1)(a) of the Electoral Act 2010 (as amended) He submitted that same is a post-election matter and thus not statute barred as ruled by same Tribunal in a sister case.

A. I OSARENKHOE, Esq., further submitted that the determination of whether or not an action is statute barred is determined by the writ of summons and statement of claim. He referred to OBA J. A. AREMO V. S. E ADEKANYE

(2004) 11 MJSC 11 AT 27 PARAS B – G (SC); BELLO V. YUSUF (2019) 15 NWLR (PT. 1695) 250 AT 283 PARAS E-H.

The learned counsel submitted that in an election petition, the cause of action arises on the date of the Final Declaration of the Results of the Election in the instant case was on 20th September, 2020 and that the petition herein which was filed on 9th October, 2020 was definitely within 21 days as required by the Law. He relied on Section 285(5) of the 1999 Constitution.

He further submitted that the action was initiated under Section 133(1) of the Electoral Act, 2010 and Section 285(2) of the 1999 Constitution and not under Section 31(5) of the Electoral Act 2010 and/or Section 285(14) of the 1999 Constitution as to constitute a pre-election matter, thus, the High Court has no jurisdiction to entertain the same. see: MOHAMMED DAN ANGO V. ALIYU SHEHU ACHIDA (1999) 7 NWLR (PT. 594) 2237; BALEWA V. MUAZU (1999) 5 NWLR (PT. 604) 636; TSOHO V. YAHAYA (1999) 4 NWLR (Pr. 600) 657; PETERS V. DAVID (1999) 5 NWLR (PT. 603) 486. He urged the Court to resolve the issue in favour of the Appellant.

The learned senior counsel for the Respondents

submitted alike contrary to the Appellant’s position. Mozia, SAN for the 3rd Respondent in particular on this issue submitted that the contention of the Appellant is misplaced as this issue bothers on qualification of a candidate to contest an election, and same is expected to be filed within fourteen days of submission of the purported false/forged information to the 1st Respondent at the Federal High Court; State High Court or the FCT High Court as a pre-election matter, and not via a Petition. He relied on Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 285 (14) (c) of the Constitution (supra).

The learned counsel contended that the Appellant submitted that the trial Tribunal delivered a similar ruling on the same issue wherein it was held that issues of non- qualification is a pre-election and post-election matter. He submitted that the fact that a Tribunal committed an error in a case does not mean it should persevere in that error.

The learned senior counsel for the Respondents urged the Court to resolve the issue in their favour.

RESOLUTION OF ISSUE 2
In deciding this issue, it is

vital to reproduce the relevant Sections of the Law that are pivot to its resolution. Necessary sections are reproduced as follows;
Section 285 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
(2) There shall be established in each State of the Federation one or more election Tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.
Section 133 (1) of the Electoral Act, 2010 provides thus:
“(1) No election and return at an election under this Bill shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Bill referred to as an “election petition”) presented to the competent Tribunal or Court in accordance with the provisions of the Constitution or of this Bill, and in which the person elected or returned is joined as a party.”

It is the Appellant’s contention that the suit was initiated at the trial Tribunal under Section 285 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 133 (1) of the Electoral Act, 2010, reproduced above and therefore does not fall within the definition of pre-election matter.

For proper resolution of this issue, reference would also be made to the pleadings of the Appellant at the trial Tribunal, particularly the under reproduced paragraphs as contained at pages 96 to 108 of the records thus:
126. “The 4th Respondent was not the owner of the Birth Certificate presented to the 1st Respondent as reflected in form EC9 of the 4th Respondent. The purported Birth Certificate submitted along with the 4th Respondent form EC9 is forged certificate and not genuine.
131. The Petitioner will at the trial rely on the 4th Respondent form EC9, Certificate of Bachelor of Science (Accounting), Birth Certificate, Voter’s Card, PDP Membership Card, Notification of High Degree Examination Result, Certificate of Primary School, Senior School Testimonial at the trial. The 4th Respondent’s Income Tax Clearance Certificate No. 18526 was

forged and same submitted to the 1st Respondent contrary to Section 182(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
132. Your Petitioner avers that the 4th Respondent falsified his tax certificate No. 18526 with a forged total assessable income of 2017, 2018 and 2019 in order to invade the appropriate amount due to pay by him. Before the Edo Governorship Election, he was an elected Governor of Edo State and at some time a civil servant under the employment of Edo State Government. The 4th Respondent being an active civil servant did not resign, withdraw or retired from the employment of the Edo State Government before the Edo State Governorship Election conducted on the 19th of September, 2020 which he had a joint ticket with the 3rd Respondent.
133. The Petitioner will at the trial rely on the 4th Respondent form EC9, Certificate of Bachelor of Science (Accounting), Birth Certificate, Voter’s Card, PDP Membership Card, Notification of High Degree Examination Result, Certificate of Primary School, Senior School Testimonial at the trial. The 4th Respondent’s Income Tax Clearance Certificate No. 18526 was forged and

same submitted to the 1st Respondent contrary to Section 182 -(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
134. Your Petitioner avers that the 4th Respondent falsified his tax certificate No. 18526 with a forged total assessable income of 2017, 2018 and 2019 in order to invade the appropriate amount due to pay by him. Before the Edo Governorship Election, he was an elected Governor of Edo State and at some time a civil servant under the Employment of Edo State Government. The 4th Respondent being an active civil servant did not resign, withdraw or retired from the Employment of the Edo State Government before the Edo State Governorship Election conducted on the 19th of September, 2020 which he had a joint ticket with the 3rd Respondent.
135. Your Petitioner avers that the 4th Respondent submitted his income tax assessment certificate to the 1st Respondent which same shows his total assessable income as a civil servant under the Employment of Edo State Government and did not retire, resign or withdraw from the Edo State civil service and at the same time contested the aforesaid election.
136. The 4th Respondent

contrary to the 1999 Constitution was an elected Deputy Governor of Edo State and at some time Directorate of Administration Governors Office of Edo State and did not resign, retire or withdraw from both Executive office before the Edo State Governorship Election held on the 19th of September, 2020 which he contested with a joint ticket with the 3rd Respondent.
137. Your Petitioner avers that the 4th Respondent occupied two executive offices as reflected in tax income certificate of the 4th Respondent submitted to INEC by the 4th Respondent. He also works as a full-time employee of Edo State Government and collected salaries and allowances from the two executive positions only him occupied contrary to the 1999 Constitution of the Federal Republic of Nigeria (as amended). The Petitioner will at the trial rely on all the receipt of payment of salaries and the allowances receipt by the 4th Respondent as a civil servant in Edo State as reflected in the 4th Respondent’s income tax certificate submitted to INEC by the 4th Respondent as an employee of Edo State Government and Elected Deputy Governor of Edo State.
138. The 4th Respondent falsified INEC

Form EC9 not indicating that he is a Deputy Governor of Edo State as at the time he contested the Edo Governorship Election held on the 19th of October, 2020. The Petitioner pleaded same and shall rely on the same Form EC9 at the trial. The 4th Respondent also falsified his voter’s card.
139. The 4th Respondent did not attach a valid voter’s card certificate to INEC (1st Respondent). The voter’s card attached to the 4th Respondent Form EC9 is falsified. The 4th Respondent indicated that he is a public servant and did not indicate that he is a Deputy Governor of Edo State. He falsified same to aid his qualification to vote and be voted for in Edo Governorship election conducted on the 19th of September, 2020.
140. Your Petitioner avers that contrary to the 1999 Constitution of the Federal Republic of Nigeria, all the certificates he attached to his Form EC9 in order to aid his qualification contest Edo Governorship Election on the 19th of September, 2020 are falsified by the 4th Respondent. The Form EC9 of the 4th Respondent being a certificate itself was corrupted by forged income tax certificate to aid the qualification of the 4th Respondent in

contesting the Edo Governorship Election conducted on the 19th of September, 2020.
141. Your Petitioner will at the trial of this case rely on the evidence and all documents from the Federal Inland Revenue Services. He deceived the Federal Inland Revenue Services of the Federation that he is a Deputy Governor of Edo State and also an employee of Edo State Government and did not disclose his income tax and that enable the Federal Inland Revenue Services to issue him a fraudulent and forged tax certificate and same was submitted to INEC (1st Respondent) contrary to 1999 Constitution of the Federal Republic of Nigeria (as amended).
142. The 4th Respondent Form EC9 being a certificate itself was corrupt or tainted with forged tax certificate to aid the qualification of the 4th Respondent as the Edo State Deputy Governorship Candidate of the 2nd Respondent. He did not present any evidence of resignation or retirement as a public servant before he contested the aforesaid election on the 19th of September, 2020.
143. Your Petitioner avers that every document submitted to the 1st Respondent along with the 4th Respondent form EC9 that is not genuine

or forged is a certificate and a disqualifying factor. The 4th Respondent was not qualified. He was a civil servant and a Deputy Governor of Edo State and did not resign any of his job before the 19th September, 2020 Edo Governorship Election contrary to the 1999 Constitution of the Federal Republic of Nigeria (as amended). (Emphasis underlined is mine).

A close look at the pleadings of the Appellant reproduced above is a clear show that the Appellant’s complaint is on the ground that the 3rd and 4th Respondent’s submitted false information to the 1st Respondent in their Form EC9. The Law as set down by the Supreme Court in ABUBAKAR V. INEC (2020)12 NWLR (part 1737) is that:
“The disqualification of a candidate on grounds of false information in his Form CFOO1 is a pre-election matter by virtue of Section 285(14) of the 1999 Constitution. The procedure for ventilating any grievance on this is statutorily provided in Section 31 of the Electoral Act, 2010 (as amended). Any party aggrieved that a candidate, inconsequence of any false information in his FormCFOO1 published by the Independent National Electoral Commission has been wrongly placed on the

ballot by the Independent National Electoral Commission should first and foremost avail himself of the procedure under Section 31 of the Electoral Act by inviting the High Court to issue ‘an order disqualifying the candidate from contesting the election’ pursuant to Subsection of Section 31 of the Electoral Act. In the instant case, this procedure(c) was not followed. (P, 161, paras C- E)”

On Court with jurisdiction over alleged false declaration in Form EC9, the Supreme Court held that:
“By virtue of Sections 138 and 31 of the Electoral Act, the Court of Appeal and the High Court appear to share concurrent jurisdiction on whether a candidate by his alleged false declaration in his Form CFOO1 shall be disqualified for the election. However, the jurisdiction vested in the High Court by Section 31 of the Electoral Act is a special jurisdiction. The jurisdiction vested in the Court of Appeal by Section 138 (1) of the Electoral Act is largely a general one. By common judicial convention such as Order 6 Rule 4 of the Court of Appeal Rules, 2016, where two Courts have concurrent jurisdiction over a matter, unless special circumstances exist, redress

over such matter shall first be sought in the inferior Court. That is, the High Court. In this case, the issue of disqualification of the 2nd respondent should have been ventilated at the High Court by virtue of Section 285(9) of the Constitution and Section 31 of the Electoral Act. (P.162, paras. B-E)”. See ABUBAKAR V. INEC (supra).
Section 31(5) and (6) of the Electoral Act provides thus:
“(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 High Court of a State or Federal High Court 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 or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.”
Where a legislation lays down a procedure for doing a thing, there should be no other method of doing it. See: C.C.B (NIGERIA) PLC. V. A.G., ANAMBRA STATE (1992) 8 NWLR (PT. 261) 528.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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This Court in HON. MOMOH ABDUL-RAZAK & ANOR V. ALL PROGRESSIVE CONGRESS & 3 ORS delivered by Hon. Justice Uchechukwu Onyemenam, JCA on 18TH FEBRUARY, 2021, in APPEAL NO: CA/ABJ/CV/20/2021 (unreported), held thus:
“For a suit to fall within the meaning of “pre-election matter” as defined under Section 285 (14) of the 1999 Constitution (supra), such suit must be instituted or commenced before the conduct of the election in question and by either an aspirant or a political party. The provisions of Section 31 (5) and (6) of the Electoral Act are not in conflict with the provisions of Section 285 (14) of the 1999 Constitution. This is firmed by the decisions of the Apex Court in the cases of ABUBAKAR V. INEC and AKINLADE V. INEC (supra); where it was that: “the disqualification of a candidate on grounds of false information in his Form CFOO1 is a pre-election matter by dint of Section 285 (14) of the Constitution. The procedure for ventilating any grievance on this is statutorily provided in Section 31 of the Electoral Act, as amended.” See also ATIKU ABUBAKAR & ANOR V. INEC & ORS (2020) 12 NWLR (PT. 1737) 37.
Therefore the herein suit

subject of this appeal which was brought under Section 31 (5) and (6) seeking for the disqualification of the 3rd Respondent as the Deputy Governorship Candidate of the 1st Defendant in the September, 2020 Edo State Governorship Election by reason of the 3rd Defendant presenting false information to the 2nd Defendant (INEC) in support of his nomination contrary to Section 31 (5) and (6) of the 2010 Electoral Act (as amended) is a pre-election matter.”
With the position of the Law stated above and the pleadings of the Appellant which is a glaring challenge of the 3rd and 4th Respondents’ qualification to contest the Edo State election on the ground that they gave false information in their Form EC9 submitted to the 1st Respondent, the complaint of the Appellant I hold, falls within the definition of a pre-election matter and it is either the Federal High Court, FCT High Court or the High Court of a State that has the jurisdiction to entertain the suit. See ABUBAKAR V INEC (supra) and AKINLADE V. INEC (supra).

Having held that the Appellant’s complaint is a pre-election matter, it follows by Section 285 (14) of the 4th Alteration to the Constitution of the Federal of Nigeria, 1999 (as amended);

that the Petition filed by the Appellant is statute barred. Accordingly, I cannot fault the findings and decision of the trial Tribunal that:
“Grounds B and C of the Petition is predicated on the qualification of the 3rd and 4th Respondents. Upon submissions of Forms CFOO1 and EC9 to the 1st Respondent and the 1st Respondent published same, the petitioner ought to have taken step upon discovery that 3rd and 4th Respondents submitted false information as to their qualification.
From the foregoing, we find merit in the 2nd Respondent’s application. We hold that the petition is statute barred having not complied with the provisions of Section 285(14) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). On this ground, we hold that this grounds B and C of the petition is incompetent and it is accordingly struck out.”

Furthermore, it is expedient to mention here that the judgments in Petition No: EDS/HA/EPT/12/2014; Philip Oshiomah-Ede & Anor V. Philip Shaibu & 3 Ors and suit No. FHC/B/83/2011; Chief Sylvanus Eruaga V. Shaibu & Anor and the judgments in

Suit No. EHC/B/CS/74/2020; All Progressives Congress & Anor V. Godwin N. Obaseki & 2 Ors and Appeal No. CA/ABJ/CV/71/2020; All Progressives Congress & Anor V. Godwin N. Obaseki & 2 Ors contrarily argued on by the Appellant and Respondents respectively constitute judgment in rem to the Appellant’s petition against the 3rd and 4th Respondents on the issues of forgery of 3rd and 4th Respondent’s educational certificates and qualifications to stand for election in Nigeria. The same subject matter having been pronounced upon and the decision of the trial Court upheld by the Court of Appeal.
In OKOROCHA V. PDP (2014) 7 NWLR (PT. 1406) 214, the Supreme Court on meaning and implication of judgment in rem held as follows:
“A judgment in rem denotes a judgment that affect not only interest in a thing but also all persons’ interest in a thing. In the instant case, the successive judgments of the three Courts over which the 1st Respondent had litigated were judgments in rem. The effect of the ruling by the Court of Appeal to re-litigate an existing judgment in rem was tantamount to a breach of the principle of res- judicata which should operate as an

estoppel. Such gross abuse of Court process will certainly subject the judicial system to ridicule. (P. 278, paras G-H)”

Having held that the instant suit which gave rise to this appeal is a pre-election matter and ought to have been filed at the High Court of a State or Federal High Court or FCT High Court within 14 days as prescribed by Law and having said that the decisions of the Courts in the above mentioned cases constitute judgment in rem to the Appellant’s petition against the 3rd and 4th Respondents on the issue of forgery of 3rd and 4th Respondent’s educational certificates and qualifications to stand for election in Nigeria. I find no reason to reverse the decision of the trial Tribunal that the allegation of the Appellant ought to be ventilated at the High Court of a State or Federal High Court or FCT High Court and not at the Election Petition Tribunal.

Finally, I resolve this issue against the Appellant and in favour of the Respondents.

SUBMISSIONS ON ISSUE THREE
Whether the Trial Tribunal adequately evaluated both the oral and documentary evidence of the Appellants so as not to breach his right to fair hearing.

A.I OSARENKHOE, ESQ submitted on the mode and purport of evaluation of evidence by a trial Court or tribunal. He relied on MOGAJI V. ODOFIN (1978) 4 SC 91; OKULATE V. AWOSANYA (2000) 1 WRN 65; TINUBU V. KHALIL & DIBBO TRANSPORT LTD. (2000) 11 NWLR (PT. 677) 171 SC; NADI V. OSENI (2003) 48 WRN 12 AT 33 LINES 5 – 15.

It is the contention of the learned counsel that the Tribunal in the instant case failed to follow the laid down procedures and did not ascribe probative value to the oral and documentary evidence of PW1. He added that the Tribunal did not evaluate and ascribe any probative value to the oral and documentary evidence of PW2 which was to the effect that the polling units result sheets of 142 polling units were not available with the 1st Respondent but they rather went on to conclude that the election was conducted in substantial compliance with the provisions of the Electoral Act 2010 and the Guidelines for the election. The learned counsel further submitted that where a trial Tribunal fails to evaluate evidence, it becomes the responsibility of the appellate Court to so do. He referred to: BELLO V. FRN (2019) 2 NWLR (PT. 1656) 193 AT

206; FATAI V STATE (2013) 10 NWLR (PT. 1361) 1.

On whether the Appellant proved on the preponderance of evidence and/or balance of probability, that the Edo State governorship election held on 19th September, 2020 by the 1st Respondent was not conducted in substantial compliance with the provisions of the Electoral Act, 2010 (as amended) and the Regulations and Guidelines, the learned counsel submitted that the Appellant tendered in evidence as exhibits the polling units results of 1,600 polling units out of 2,627 polling units across the 18 Local Government Areas of Edo State in which the scores of the Appellant were unlawfully omitted from the polling units result sheets. He also contended that the 1st Respondent has a statutory requirement to enter every score by every candidate including zero scores, adding that “dash” or “nil” as a way of entering scores in Form EC8A is unknown to the Electoral Act. He relied on NWANKWO V. YAR’ADUA (2010) 12 NWLR (PT. 1209) 158 AT 588; 63(1) AND 76 OF THE ELECTORAL ACT; CLAUSE 22 (A) (V) OF THE REGULATIONS AND GUIDELINES.

The learned counsel urged the Court to hold that the election was not conducted in

substantial compliance with the provisions of the Electoral Act and the guidelines for the conduct of the election and that the 3rd Respondent did not score the majority of lawful votes cast at the election.

The learned senior counsel for the 3rd Respondent in particular submitted that the trial Tribunal at page 1844 of the record of appeal, unequivocally stated that it was not going to restate the arguments of the Appellant, despite restating that of the Respondents. He contended that the trial Tribunal howbeit considered all the issues of Law raised and resolved the same arguing that it is not mandatory in a judgment for the Court or Tribunal to rehash al! the arguments of the parties. He cited the cases of: EKASA V. ALSCON PLC. (2014) 16 NWLR (PT. 1434) 542 @ 564 PARAS D-H, PER NWEZE J.C.A (AS HE THEN WAS); CIROMA V. ALI (1999) 2 NWLR (PT. 590) 317 CA.

Mozia of senior counsel further submitted that the refusal of the trial Tribunal to rehash the Appellant’s argument does not amount to a denial of fair hearing, as there is nothing before the Court which demonstrates incidence of denial of fair hearing as argued by the Appellant’s Counsel.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The learned senior counsel submitted that the trial Tribunal evaluated the totality of evidence placed before it, ascribed probative value to it, placed same on the imaginary scale of justice to determine the party in whose favour the balance tilts, and consequently made the necessary findings of fact flowing there from, which was to the effect that the Appellant failed to adduce sufficient evidence in support of the grounds upon which the election was premised.

The learned senior counsel for the 1st, 2nd and 4th Respondents argued in line with the 3rd Respondent’s counsel on this issue. They urged the Court to resolve the issue in favour of the Respondents.

RESOLUTION OF ISSUE 3
Evaluation of evidence is the primary responsibility of the trial Court. Once there is proper evaluation of evidence by the trial Court, an appellate Court has no business interfering unless the decision is perverse and has occasioned a miscarriage of justice. Where, however, evaluation of evidence does not involve the credibility of witnesses but the complaint is against the non-evaluation or improper evaluation of evidence by the trial Court, an appellate Court

is in a good position as the trial Court to do its own evaluation. See F.B.N. PLC V. OZOKWERE (2014) 3 NWLR (PT. 1395); BALOGUN V. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66 REFERRED TO (P. 466, PARAS B-D); NWOKORO V. NWOSU (1994) 4 NWLR (Pt. 337) 172 REFERRED TO] (P. 319, PARAS. E – F).

When the question of evaluation of evidence involves credibility of witnesses, an appellate Court cannot do much since it was the trial Court that saw them, heard them and watched their appearances, the trial Court in the circumstance is in the position to believe or disbelieve witnesses and this can never be captured by an appellate Court, which only has the cold printed record to contend with. See STATE V. RABIU (2013) 8 NWLR (PT. 1357) 585; NWACHUKWU V. STATE (1986) 2 NWLR (PT. 25) 765; STATE V. ISAH (2019) NWLR (PT. 1652) 139; JIBRIN V. F.R.N. (2018) 13 NWLR (PT. 1635) 20 REFERRED TO. (PP. 245-246, PARAS G-F; 247, PARAS.C-E); F.R.N. V. KAYODE-BECKLEY (2020] 6NWLR (PT 1750) 219.

It is the contention of the Appellant that there is no where in the entire judgment the trial Tribunal referred to the arguments, issues, submissions or any authority cited by the Appellant’s

counsel in support of the petition.

A trip to the judgment of the trial Tribunal, specifically at page 1844 of the record of appeal will reveal the trial Tribunal stating as follows:
“The Petitioner’s final address also argued extensively on the three issues formulated in the pre-hearing report. We do not intend to restate them in details here because of the pressure of time on us and more particularly, that they form part of record of this Tribunal. Suffice to say that we have carefully considered the submissions.”

The trial Tribunal at page 1845 to 1486 on the Petitioners pleading stated thus:
“the petitioner devoted substantial part of the pleadings to non-compliance paragraph 46 to 71 of the petition which ran through pages 31 to 79 and 107 to 127 of the petition contain various allegation of non-compliance with the Electoral Act, 2010 (as amended).”
The trial Tribunal at pages 1847 to 1848 on the evidence of the Petitioner’s witness stated thus:
“PW1 in the instant case has not demonstrated the non-compliance alleged in the petition, PW2 subpoena witness from INEC gave evidence that the election was in substantial

compliance with provisions of the Electoral Act, 2010 (as amended).”

The trial Tribunal clearly stated as seen above, that it carefully considered the submissions of the Appellant but because of time, it did not rehash the Appellant’s arguments and submissions. The Tribunal went further to make pronouncement on their findings based on the evidence presented before them by the parties. The trial Tribunal is not duty bound to reproduce, rehash, summarize or mention all the arguments of the Appellant before resolving them. The Law is that a Court of Law has the duty to consider and pronounce on all material issues properly committed to it for determination by contending parties. See TRANSNAVP N. LTD. V. VELCANE H.D. LTD. (2020) 7 NWLR (pt. 1723) 295; HONEYWELL FLOUR MILLS PLC V. ECOBANK (2019) 2 NWLR (1665) 35; GARBA V. MOHAMMED (2016) 16 NWLR (PT. 1537) 114; UKOH V. UKOH (2021) 7 NWLR (PT. 1775) 305.
The fact that a particular style, mode or manner was not employed in the appraisal, assessment or evaluation of evidence by a trial Court does not mean that evidence was not properly assessed or evaluated or was not evaluated at all before or in

reaching a decision. See SOLOLA V. STATE (2005) NWLR (PT. 937) 460. It is only where and when it is demonstrated on appeal and the appellate Court is satisfied, that a trial Court either failed to properly evaluate all or some relevant and material parts or portions of the evidence before it that the appellate Court would have not only valid reason(s) but the duty to intervene to re-evaluate or evaluate the evidence in question for the purpose of ascription of the deserved probative value and reaching the appropriate decision in the case. See the cases of ALI V. STATE (1988) 1 NWLR (PT. 68) 1; OGUNLEYE V. ONI (1990) 2 NWLR (PT.135) 745; ADUSEI V. ADEBAYO (2004) 4 NWLR (PT. 802) 44; STATE V. AJIE (2000)11 NWLR (PT. 678) 434; BASHAYA V. STATE (1998) 5 NWLR (PT. 550) 351; SALEH V. B.O.N. LTD (2006) 6 NWLR (PT. 976) 316; GABRIEL V. STATE (2010) 6 NWLR (PT. 1190) 280; IGAGO V. STATE (1999) 6 NWLR (PT. 608) 568 REFERRED TO.] (P. 179, PARAS C-H; ADENEKAN V. THE STATE OF LAGOS (2021) 1 NWLR (1756) 131.

Flowing from above, I disagree with the learned counsel for the Appellant on his position that there is no where in the entire judgment in the petition the trial

Tribunal mentioned the arguments, any issue discussed, submissions or any authority cited by the Appellant’s counsel in support of the petition as same is not correct. I am of the opinion that the trial Tribunal evaluated the totality of material evidence placed before it, ascribed probative value to it, placed same on the imaginary scale of justice to determine the party in whose favour the balance tilts, and consequently made the necessary findings. There was no breach of fair hearing against the Appellant and I so hold.

I consequently resolve this issue in favour of the Respondents and against the Appellant.

SUBMISSIONS ON ISSUE FOUR
Is presentation of forged certificate by a candidate for an election under Section 182(1)(j) of the 1999 Constitution (as altered) a criminal case requiring proof beyond reasonable doubt and whether Appellant did not prove that the 3rd and 4th respondents presented forged certificates to INEC?

A. I OSARENKHOE, Esq., for the Appellant on this issue submitted that by the doctrine of stare decisis, the trial Tribunal and this Court are under obligation to follow, apply and abide by the decision of the

Supreme Court on similar issues, causes and matters. Hence, the Supreme Court having interpreted Section 182 (1) (j) of the 1999 Constitution, the Tribunal ought to follow suit. He relied on PEOPLES DEMOCRATIC PARTY (PDP) & ORS V. DEGI-EREMIENYO (2020) AH FWLR (PT.1032) 526; ALEKE V. COP (2021) 4 NWLR (PT. 1766) 384 AT 396 PARAS B – C

The learned counsel further submitted that constitutional provisions are not criminal legislations, thus, does not contain criminal provisions and does not require proof beyond reasonable doubt. A Constitution contains normative rules of conduct, policies and rights of the citizens in relation to the State. He further submitted that the standard of proof required of the appellant to prove its petition was on preponderance of evidence or balance of probability, an election petition being a specie of civil causes and matters. He referred to SECTION 134 OF THE EVIDENCE ACT, 2011 (AS AMENDED); AGALA V. EGWERE (2010) ALL FWLR (PT. 532) 1609 AND KWALI V. DOBI (2010) ALL FWLR (PT. 506) 1883.

The learned counsel finally submitted that the appellant proved that the 3rd and 4th Respondents presented forged certificate to INEC

under Section 182 (1) (j) of the 1999 Constitution and urged the Court to resolve the issue in favour of the Appellant.

In response, the learned counsel for the 3rd Respondent submitted that contrary to the argument of the Appellant’s Counsel, there is no evidence placed before the trial Tribunal to support any of the averment of non- compliance with the provisions of the Electoral Act. It was further submitted that the arguments canvassed in paragraphs 8.02-8.05 at pages 18 – 19 of the Appellant’s Brief of Argument is misplaced because there is no evidence to buttress any of the allegations of non- compliance contained therein.

The learned counsel submitted that the Appellant has woefully failed to establish on the preponderance of evidence and or balance of probability that the Edo State Governorship Election held on 19th September, 2020 by 1st Respondent was not conducted in substantial compliance with the provisions of the Electoral Act 2010 (as amended) and the Regulations and Guidelines for the conduct of election.

The learned senior counsel submitted that the Appellant is an outsider and a stranger without the right to ask questions on

the propriety or otherwise of the waiver granted to the 3rd and 4th Respondents. He relied on TARZOOR V. IORAER (2016) 3 NWLR (PT. 1500) 463 @ PG. 505-506 PARAS F-B; SHINKAFI & ANOR V. YARI ORS (2016) LPELR-26050 (SC).

The learned senior counsel for the 1st, 2nd and 4th Respondent’s arguments were in consonance with the 3rd Respondent’s counsel submissions on this issue.

RESOLUTION OF ISSUE 4
As I had earlier stated in this judgment, election petitions are sui generis (of its own kind). They are neither like ordinary civil proceedings or ordinary criminal proceedings. See NYESOM V. PETERSIDE (supra) AND ABUBAKAR V. I.N.E.C (2020) 12 NWLR 99.

It is the argument of the learned counsel for the Appellant herein that election petitions are civil proceedings and thus, every proof required therein is on preponderance of evidence or balance of probability. With deference to learned counsel, this is an erroneous conception. An allegation that a party presented forged certificates is firmly rooted in criminality, which must be proved beyond reasonable doubt. It is not enough to make such allegation. The party so alleging must go further to

lead credible evidence to prove such allegation in accordance with the provisions of the Evidence Act. See ABUBAKAR V. I.N.E.C. (2020) 12 NWLR 99; AGI V. P.D.P. (2017) 17 NWLR (PT.1595) 386; YUSUFU V. OBASANJO II (2003) 16 NWLR (PT. 847) 554; WAZIRI V. GEIDAM (2016) 11 NWLR (PT.1523) 230; SECTIONS 131 AND 135 OF THE EVIDENCE ACT, 2011.

However, as I had earlier stated in this judgment, the judgments in Petition No: EDS/HA/EPT/12/2014; Philip Oshiomah Sede & Anor V Philip Shaibu & 3 Ors and Suit No. FHC/B/83/2011; Chief Sylvanus Eruaga V Shaibu & Anor and the judgments in Suit No. EHC/B/CS/74/2020; All Progressives Congress & Anor v Godwin N. Obaseki & 2 Ors and Appeal No. CA/ABJ/CV/71/2020; All Progressives Congress & Anor V Godwin N. Obaseki & 2 Ors constitute judgment in rem on the issues of forgery of the 3rd and 4th Respondents’ educational certificates and qualifications to stand for election in Nigeria and binds the whole world until set aside by a Court of competent jurisdiction.

This Court having in Appeal No. CA/ABJ/CV/71/2020; All Progressives Congress & Anor V Godwin N. Obaseki & 2 Ors affirmed that the

3rd and 4th Respondents did not forge the certificates they submitted to the 1st Respondent in Edo State Governorship Election of October, 2019, I lack the requisite competence to make any pronouncement on whether or not the said issue or forgery was proved beyond reasonable doubt as it has become academic to so do for the fact that this Court cannot in the circumstance of the case review its earlier judgment in rem particularly as the Appellant has not shown that he is referring to documents and certificates different from the ones challenged and pronounced upon in Appeal No. CA/ABJ/CV/71/ 2020; All Progressives Congress & Anor V Godwin N. Obaseki & 2 Ors.

This Court cannot therefore in the circumstance pronounce on this issue. The said issue is accordingly struck out.

Having resolved the two material issues against the Appellant, I hold that the Appellant’s appeal lacks the required merit to sustain it. Appeal is therefore dismissed. The decision of the EDO STATE GOVERNORSHIP ELECTION PETITION TRIBUNAL delivered on 29th March, 2021 in PETITION NO: EPT/ED/GOV/04/2020 dismissing the Petition of the Appellant on its merit is hereby affirmed.

I award costs of N50,000 in favour of the Respondents severally against the Appellant.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother UCHECHUKWU ONYEMENAM, JCA.

I agree and abide with the conclusion reached therein that the appeal be dismissed.
I abide with order as to costs.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my Lord, Onyemenam, JCA, that the Appeal lacks merit.

Even by the preliminary objection, the Appeal was due for striking out, but for the conflicting dates of service of the transmitted Records of Appeal on Appellant. The Records were transmitted to this Court on 24/4/2021 but Appellant said it was served on 27/4/2021 with the Records, which is strange as the Records are normally served on parties before transmission to Appellate Court!

Appellant had 10 days of service of the Records of Appeal on it to file brief. It filed the brief on 6/5/2021. That would be 12 days after the service of the Records of Appeal, if counted from 24/4/2021. But we have to base it on the 27/4/2021, which

Appellant claimed to have been serve.

In Yaki & Anor vs Bagudu & Ors (2015) LPELR – 25721 SC, the Supreme Court held:
“In a purely civil matter, the filing of a process a day after the period prescribed for the filing can be regularized on the application of the defaulting party. But in election matter, even a slight infraction of the rules, particularly those relating to time, can be fatal to the process filed. See Buhari vs Yusuf (2003) 6 SC (Pt.11) 156.” Per Ngwuta JSC (of blessed memory).

The preliminary objection was therefore defeated, only by resort to 27/4/2021 as the date of service of the Records of Appeal on Appellant. However, despite that narrow escape from the preliminary objection, the Appeal was still doomed as ably articulated by my Lord, Onyemenam, JCA, in the lead judgment, which I adopt.

I also add that the resolution of the issue, whereof the Tribunal wrongly applied the provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act to the Petition, became of no significant, since the Tribunal had proceeded to entertain and consider the Petition on the merits before dismissing it.

Of course, it is not every error in a Court’s judgment that would lead to the setting aside of a judgment or decision. See Amasike vs Registrar General CAC (2010) 7 MJSC 86; Mobil Producing Nig. Unltd Vs Johnson & Ors (2018) LPELR – 44359 (SC); Ogar & Ors vs Igbe & Ors (2019) LPELR – 4899 (SC).

I too dismiss the Appeal and abide by the consequential orders in the lead judgment.

AMINA AUDI WAMBAI, J.C.A.: I agree.

ABUBAKAR SADIQ UMAR, J.C.A.: I have read the draft judgment of my learned brother Onyemenam, JCA. I entirely agree with the reasoning and conclusions therein. My Lord has exhaustively dealt with all issues in this appeal.

I too dismiss this appeal and abide by the consequential orders in the lead judgment.

Appearances:

A.I Osarenkhoe, Esq. For Appellant(s)

Asiwaju Adegboyega Awomolo, SAN; with him, J. C. Obiechina, Esq. – for 1st Respondent
Chief Chris Uche, SAN; with him, Olakunle Lawal, Esq. for 2nd Respondent
Kenneth E. Mozia, SAN; with him, Rotimi Oguneso, SAN for 3rd Respondent

Chief Adeniji Akintola, SAN; with Olushola O. Samuel, Esq. for the 4th Respondent. For Respondent(s)