ALLIED PEOPLES’ MOVEMENT (APM) V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS

“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. –

GROUNDS OF APPEAL – CRITERIA FOR THE VALIDITY OF GROUNDS OF APPEAL “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-4741S (SC); Mekwunye V. Emirates Airline (2019) LPELR-46553 (SC)”. –

“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 (PL1764) 538 (SC)r 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 (PI, 602) 179; PDP V. INEC (2014) 17 NWLR (PT. 1437) 525 @ 553 – 554”. –

“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 AT509. 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) and 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 A T 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. Inude V. Nwara (1993) 2NWLR (PT. 278) 638 at 661 PARA D. the Supreme Court held that: “It is trite that once the law has prescribed a particular method of 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 exdusio unius est aitertus exclusion, is followed. See: OGBUA Yinya V. Okudo (1979) 6-9 SC 32; Udo V. Orthopaedic Hospital Management Board (1993) 7NWLR (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 he 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, when 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. INEC (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 ATS09-S11, PARA H-F. 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 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 CFOO1is 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 Form CFOOl 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 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 CF001 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 This court in Hon. Momoh Abdul -Razak & Anor V. All Progressive Congress & 3 Ors delivered by Hon Justice Uchechukwu Onyemenam, JCA on IS™ FEBRUARY, 2021, in APPEAL NO: CA/ABJ/CV/20/2021 (unreported), held thus: “For a suit to fail 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 held 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) & (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 K INEC (supra); Akinlade V. INEC (supra)-

“In Okorocha V. PDP (2014) 7NWLR(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 lst 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 certainty 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”.-

“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. Isam (2019) 1 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[2020J16 NWLR (PT 1750) 219. –

“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) 11 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) 5NWLR (PT. 550} 351; Saleh V. B.O.N. Ltd. (2006)6 NWLR (PT 976) 316; Gabriel V. State (2010) 6NWLR (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]1NWLR (1756)131”. –

“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); Abubakar V. LN.E.C. (2020) 12 NWLR 99. –

“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. –

“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.ll) 156.” Per Ngwuta JSC (of blessed memory). –