CORAM

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SIR. BIOBELE A. GEORGEWILL JCA

BALKISU BELLO ALIYU JCA

FOLASADE AYODEJI OJO JCA

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PARTIES

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1. UDENSI EKEA ULU

2. PEOPLES DEMOCRATIC PARTY (PDP)

APPELLANTS 

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1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

2. LABOUR PARTY (LP)

3. NWOKE KALU MBA

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The 1st Appellant was the candidate of the 2nd Appellant in the election for member Abia State House of Assembly, representing Ohafia South State Constituency of Abia State that was conducted by the 1st Respondent (INEC) on the 18th March 2023. The 3rd Respondent also contested the said election sponsored by the 2nd Respondent, the Labour Party (LP). At the conclusion of the election, the 1st Respondent declared the 3rd Respondent winner of the election having scored the highest number of the lawful votes cast and thereby returned him elected.

The Appellants disagreed with the return of the 2nd and 3rd Respondents as winners of the election and they filed a petition claiming that the 3rd Respondent was at the time of the Election not qualified being a person disqualified to contest the said election, the election was invalid by reasons of non-compliance with the provisions of the Electoral Act, 2022, and that he was not duly elected by majority of lawful votes. The basis of the contention that he wasn’t qualified was his First School living Certificate (FSLC) which the Appellants claimed was a forged certificate. The Respondents raised some preliminary objections which were pronounced upon along with the final judgment.

The Tribunal upheld the objections of the Respondents. On the merit, the Tribunal found in favour of the Respondents and dismissed the Petition.

Aggrieved by the decision, the Appellants filed the instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1.  Whether in the circumstances of the Petition before the lower Tribunal, the Learned Judges of the Tribunal did not err in law when they struck out ground 2 of the petition?

2.  Whether the learned Judges of the Tribunal did not err in law when they held that Paragraph 54 of the 1st Schedule to the Electoral Act, 2022 which allows recourse to the Federal High Court Rules does not render any process filed by parties or any act done incompetent for not being in strict compliance with the provisions of the Federal High Court Rules, 2019?

3.  Whether in the circumstances of the case before the lower Tribunal, the learned Judges of the Tribunal were right to strike out the witness statement on oath of the PW1 and all documents tendered through him?

4.  Whether the findings of the learned Judges of the Tribunal, which was directed at Counsel and not his position of law on the evidence of PW2 was not wrongful and should be discountenanced?

5.  Whether the learned Judges of the Tribunal were right when they held that the Appellants failed to prove that the 3rd Respondent did not win the majority of the lawful votes cast and all facts needed for the success of the petition?

 

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RATIONES DECIDENDI

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GROUNDS OF APPEAL – WHERE THE COMPETENCE OF THE GROUNDS OF APPEAL IS CHALLENGED

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A challenge to the competence of the grounds of appeal, regardless of how raised, is an attack on the jurisdiction of this court to determine the appeal; for if the grounds are incompetent, the issues for determination will also be incompetent. – Per B. B. Aliyu, JCA

 

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GROUND OF APPEAL – WHERE GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION RISE FROM

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The position of the law, as rightly stated by the 2 nd Respondent is that a ground of appeal and issues raised for determination therefrom must relate to and arise from the judgment appealed against. See MAIGANA VS. I.T.F. (supra). Where it is found that a ground of appeal does not arise from the judgment appealed against, or not against issue decided by the trial Court, such a ground is incompetent and liable to be struck out. See OKONKWO VS. EZEAKU (2020) 5 NWLR (PT. 1718) 477 (SC). – Per B. B. Aliyu, JCA

 

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‘OR’ – THE EFFECT OF THE WORD OR IN S.134 OF THE ELECTORAL ACT, 2022

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Under the extant provisions of the Section 134 of the Electoral Act, 2022, there is no similar provision with paragraph (1)(d) of the 2006 Act. The word “or” which is also used disjunctively to indicate that a Petitioner was free to rely on any of the three grounds, or all of them as the case maybe. The word ‘or’ used in the provision is in the alternative, depending on which ground(s) the petitioner is questioning the election in issue. I find the case of ABUBAKAR VS. INEC (2020) 12 NWLR (PT. 1737) 37 at 108 B-F and LEDO VS. MASARI (2021) 13 NWLR (PT. 1793) 334 (SC) as more appropriately applicable to the present facts of this case. – Per B. B. Aliyu, JCA

 

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JURISDICTION – WHETHER AN ISSUE OF COMPETENCE OF AN ORIGINATING PROCESS IS A JURISDICTIONAL ISSUE – WHEN JURISDICTIONAL ISSUES CAN BE RAISED

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The issue of competence of an originating process is a jurisdictional issue and it is settled law that it can be raised at any time and by any mode. – Per B. B. Aliyu, JCA

 

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DEPOSITION – WHERE DEPOSITION ON OATH IS NOT SIGNED IN THE PRESENCE OF THE PERSON AUTHORISED TO ADMINISTER OATHS

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In the case of ASHIRU VS. I.N.E.C. (2020) 18 NWLR (PT. 1751) 416 at 441-442 (SC), EKO JSC held thus: The law is that deposition on oaths must be signed by the deponent in the presence of the person authorized to administer oaths…. Depositions on oaths, like affidavits, must be sworn to before the person authorized to administer oaths on the deponent himself before the said person authorized to administer oaths. The issue in Chidubem v. Ekenna (supra) is that the petitioner’s witnesses admitted that they did not sign their depositions on oath before the person authorized to administer the oaths and who did sign the depositions purporting that the deponents were physically before him. It is on these pieces of evidence that Kekere-Ekun, JCA (as he then was) held that; From the evidence of these witnesses, it is clear that none of them signed the depositions before the person authorized to administer oaths…. The requirement of the law is that the depositions on oaths must be signed in the presence of the persons authorized to administer oaths…

See also FCMB PLC VS. SUNDAY & ANOR. (2022) LPELR-58197 (CA) PER GEORGEWILL, JCA. – Per B. B. Aliyu, JCA

 

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EDUCATIONAL QUALIFICATION – WHETHER A CANDIDATE IS REQUIRED TO ATTACH HIS EDUCATIONAL QUALIFICATION CERTIFICATES TO INEC’S FORM

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The Tribunal also correctly found that neither the Constitution nor the Electoral Act requires a candidate for an election to attach his educational qualification certificates to INEC’s form before he can qualify to contest. This finding is in line with the Supreme Court’s decision in ABUBAKAR VS. INEC (2020) 12 NWLR (PT. 1737) 37 at 108, para. B-F. – Per B. B. Aliyu, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Federal High Court Rules, 2019

3. Electoral Act, 2022

4. Electoral Act 2006

5. Electoral Act 2010

6. Court of Appeal Rules, 2021

7. Oaths Act

8. Evidence Act 2011

 

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