Lagos East Senatorial Election: Gbadamosi and PDP appeal against judgment

The Peoples Democratic Party (PDP) and its candidate in the Lagos East Senatorial Bye-Election, Mr. Babatunde Gbadamosi, have appealed against the judgment of the Federal High Court, Lagos, which dismissed their case against the All Progressives Congress and its candidate in the said election, Senator Tokunbo Abiru. Hon Justice Chuka Obiozor had ruled that the case of PDP and Gbadamosi did not disclose grounds for the disqualification of Senator Abiru.

In the notice of appeal containing nine grounds and particulars, filed by their lawyer, Mr. Peter Ekavwo of Ebun-Olu Adegboruwa, SAN’s law firm, PDP and Gbadamosi are contending that the judge erred in law when it declined jurisdiction to entertain Issues 2, 3, 5 and 6; and Reliefs 10 and 11 of Plaintiff’s Originating Summons and struck out same, on the ground that the said issues and reliefs are statute-barred. They claimed further that the judge was wrong to have held that the case of the appellants was anchored on nomination of Senator Abiru, whereas it was about statutory disqualification as envisaged under section 31 (5) of the Electoral Act, based on false information. Furthermore, the appellants claimed that the judge was wrong in striking out the further affidavit of the appellants on the ground that they introduced new issues outside the 14 days allowed by law, whereas the said further affidavit only amplified facts that were already supplied in documents (FORM CF001) frontloaded along with the existing originating summons, especially in relation to the multiplicity of the names of Senator Abiru. They maintained that under Order 27 Rule 4 of the Federal High Court (Civil Procedure) Rules, the appellants were at liberty to file a further affidavit at any time before the hearing of the originating summons.

In addition, PDP and Gbadamosi also faulted the judge for holding that the facts of the multiplicity and inconsistency of the names of Senator Abiru are at variance with the originating summons whereas Relief 12 of the said originating summons specifically sought for an order to disqualify him from contesting the bye-election. The appellants specifically challenged the judgment on the ground that the judge ignored and did not follow the precedent set by the Supreme Court in the case of PDP v. Degi-Eremienyo, in relation to the Bayelsa State Governorship election. The appellants want the Court of Appeal to hold that the judge erred in failing to give a holistic and purposive interpretation to sections 71, 72 and 77 of the 1999 Constitution for the purpose of determining the eligibility of Senator Abiru to contest the bye-election.

They promised to file more grounds of appeal upon the receipt of the certified true copies of the judgment, urging the Court of Appeal to allow their appeal, set aside the judgment of the trial court, cancel the certificate of return issued by INEC to Senator Abiru and direct that same be issued to Gbadamosi, being the candidate that scored the second highest votes cast in the said bye-election.

Below are the complete grounds of appeal contained in the notice of appeal, which was filed at the Registry of the Federal High Court, Lagos, on Thursday, March 4, 2021:

GROUND ONE

1. The learned Trial Court erred in law and misdirected itself upon the facts, when it declined jurisdiction to entertain Issues 2, 3, 5 and 6; and Reliefs 10 and 11 of Plaintiff’s Originating Summons and struck out same, on the ground that the said issues and reliefs are statute-barred.

PARTICULARS:

i. The learned Trial Court came to the wrong conclusion that the said issues are statute-barred, on the basis that Appellants’ case on those issues were anchored on nomination of the 2nd Respondent.

ii. The Court failed to draw a distinction between a challenge to the nomination of a candidate by an aspirant of the same political party and nomination of a constitutionally cum statutorily disqualified candidate by a member of the public, as envisaged under section 31(5) of the Electoral Act, 2010 (as amended).

iii.  Appellants’ challenge to the nomination of the 2nd Respondent as expressed in Issues 2, 3, 5 and 6 and Reliefs 10 and 11 of the Originating Summons, was anchored on the disqualification of the 2nd Respondent to contest the Lagos East Senatorial bye-election, by the facts of false information and other constitutional infractions.

iv. Though the phrase “nomination’ appeared in those issues and reliefs, the real issue submitted therein, has to do with the qualification of the 2nd Respondent to contest the said election, having been so disqualified by virtue of Sections 71, 72, 77 of the Constitution of the Federal Republic of Nigeria and section 31(5) of the Electoral Act, 2010 (as amended), on the grounds of false information.

v. The facts above-stated are such that until the particulars of the candidates, contained in Forms CF001 (EC9) are published by the 1st Respondent (INEC), members of the public would not necessarily be aware, that a political party nominated a constitutionally cum statutorily disqualified candidate.

vi. There is a world of difference between nomination of a candidate who has not emerged from a primary of a political party and nomination of a constitutionally disqualified candidate by a political party.

vii. The facts afore-stated became public with the publication of names of the candidates on September 17, 2020, whereas this suit was filed on September 29, 2020.

viii. The issues canvassed in the listed issues were therefore not statute-barred, having been filed within a period of 14 days allowed by law.

ix. By its decision aforesaid, the learned Trial Court granted the preliminary objections of the 2nd and 3rd Respondents wherein facts were canvassed when the said 2nd and 3rd Respondents are deemed to have accepted the facts contained in the Originating Summons.

x. There was no evidence before learned Trial Court of the date of the purported submission of the nomination form  of the 2nd Respondent to enable the said Court arrive at the conclusion, as it did, that the case of the Appellant was statute barred.

GROUND TWO

2. The learned Trial Court erred in striking out paragraphs 11, 12 and 17 of the Further-Affidavit of the Appellant dated November 9th, 2020 and held that the facts of false information manifested in the multiplicity of names supplied by the 2nd Respondent in his Form CF001 (EC9), is tantamount to introduction of new facts and issues, outside the 14 days allowed by law and same is statute-barred.

PARTICULARS:

i. Relief 12 of the Originating Summons prayed the Honourable Court to disqualify the 2nd Appellant from contesting the Lagos East bye-Election scheduled to hold on 31 October, 2020.

ii. At paragraph 20 of the Originating Summons of the Appellant, he exhibited to the Court Exhibit PDP 2, which is a copy of Form CF001 (EC9) of the 2nd Respondent, containing his certificates with multiple and irreconcilable names.

iii. At paragraphs 11, 12 and 17 of the further-affidavit of the Appellant dated November 9, 2020, he merely extracted from the said Exhibits/documents already before the court, facts of the multiplicity of names in those documents.

iv. Such extraction from the documents already before the court, in the further-affidavit cannot amount to introduction of new facts.

v. Documents attached to an affidavit, forms part of evidence and the documents containing false and multiple names of the 2nd Respondent were already before the court as at September 29, 2020, when the suit was filed and could not amount to new facts barred by statute.

vi. The learned Trial Court erred in holding that the issue of multiplicity of names of the 2nd Respondent was a new fact, introduced only on November 9, 2020 when the further-affidavit was filed.

vii. Under and by virtue of Order 27 Rule 4 of the Federal High Court (Civil Procedure) Rules, the Appellants have a right to file a Further-Affidavit at any time before the hearing of the Originating Summons.

GROUND THREE

3. The learned Trial Court erred when it struck out paragraphs 16 and 17 and issues canvassed thereon in the Appellants’ Further-Affidavit/reply address dated December 7, 2020, filed in response to the 2nd Respondent’s Counter-Affidavit to Appellant’s Originating Summons, on the ground that they introduced new facts and expanded the issues, outside the 14 days for commencement of the suit and thus statute-barred.

PARTICULARS:

i. The Trial Court was in error when it applied the same principle of statute of limitation to the Appellants’ Further and Better-Affidavit in support of the Originating Summons dated November 9, 2020 and the Appellants’ Further-Affidavit filed on December 9, 2020 in response to 2nd Respondent’s counter-affidavit to the Originating Summons, when such is not contemplated under the Rules guiding the practice and procedure of the said Court.

iii. Paragraphs 16 and 17 of the said further-affidavit did not introduce any new issues outside the originating summons, rather they were facts meant to controvert facts deposed in the 2nd Respondent’s counter-affidavit.

iv. At paragraphs 4 (n) of the 2nd Respondent’s counter-affidavit, he deposed thus: “My INEC Form EC9 or other Forms do not contain any false information as all the information supplied by me in the said Form are true and correct.”

v. Paragraphs 16 and 17 of the Appellants’ further-affidavit simply responded to those averments, by showing the facts of false information as it relates to multiplicity of names, as contained in his Form CF001 (EC9), which he submitted to INEC.

vi. Such a response to the allegation contained in the Counter-Affidavit of the 2nd Respondent, does not in any way amount to introduction of new facts and issues as erroneously held by the Trial Court, with due respect.

GROUND FOUR

4. The Trial Court erred in law and misdirected itself upon the facts, when it held that the facts of multiplicity of and inconsistency of the names of the 2nd Respondent as contained in the documents submitted by him to INEC, are at variance with the pleadings of the Appellant, as there is no relief to sustain those facts, when in their Originating Summons, the Appellants sought a specific relief to disqualify the 2nd Respondent.

PARTICULARS:

i. The facts of multiplicity and inconsistency of names, speaks to the facts of false information, as demonstrated by the Supreme Court in PDP & ORS. V. Degi-Eremienyo & Ors (2020) LPELR-49734 (SC).

ii. Relief 12 of the Appellants’ originating summons reads thus: “AN ORDER disqualifying the 2nd Defendant from contesting the Lagos East Senatorial Bye-Election scheduled to hold on the 31st October, 2020.”

iii. Relief 12 of the Appellants’ originating summons is sufficient to disqualify the 2nd Respondent, if the Court finds that there is false information, flowing from the multiplicity and inconsistency of names in the documents he submitted to the electoral umpire.

iv. The facts of false information vis-à-vis the inconsistency of names of the 2nd Respondent are not at variance with the pleadings of the Appellants rather, they provide a ground to sustain relief 12, which seeks an order of court to disqualify him.

v. The Appellants are entitled to succeed in their Originating Summons on Relief 12 alone, if from the facts and documents submitted, there are sufficient reasons to disqualify the 2nd Respondent.

GROUND FIVE

5. The Trial Court erred when it failed to give a holistic and purposive interpretation to sections 71, 72 and 77 of the 1999  Constitution of the Federal Republic of Nigeria (as amended), for the purpose of determining the eligibility of the 2nd Respondent to contest the Lagos East Senatorial bye-election.

PARTICULARS:

i. The delimitation of Senatorial Districts by virtue of Sections 71 and 72 of the Constitution is meant to confine electoral contest and representation in the senate on a District-to-district basis.

ii. By virtue of Section 77 of the 1999 Constitution of the Federal Republic of Nigeria as amended, it is only a member of a particular senatorial district that is qualified to present himself to contest and represent the other Members of that Senatorial District.

iii. Membership of a Senatorial District requires registration by INEC of that person as a voter in that Senatorial District, to which the 2nd Respondent did not subscribe, necessitating his botched application to INEC to transfer his voter’s registration from Lagos Central to Lagos East Senatorial District.

iv. Whereas indigeneship may not necessarily determine membership of a senatorial district, a person such as the 2nd Respondent, desiring to contest election in such district, must be registered by INEC in that district and his name registered in the voters list of members of that district.

iv. The 2nd Respondent elected to become a member of Lagos Central Senatorial District when he registered at Eti-Osa Local Government Area of Lagos State.

v. The 2nd Respondent having elected to be a member of Lagos Central Senatorial District by the act of his voter’s registration thereat, he is disqualified to represent other members of Lagos East Senatorial District of Lagos State, where he did not register.

GROUND SIX

6. The Trial Court erred in law and misdirected itself upon the facts, when it held that qualification and disqualification of a candidate for election into the Senate is confined and limited to those stated in Sections 65 and 66 of the 1999 Constitution of the Federal Republic of Nigeria.

PARTICULARS:

i. The Trial Court failed to appreciate and to appropriate the full effect of sections 31(5) and (6) of the Electoral Act, 2010 (as amended), which empowers the Court to disqualify a candidate for election where there is evidence of  false information.

ii. The finding and decision of the Trial Court is inconsistent with extant decisions of the superior courts to the effect that persons who gave false information can be disqualified.

iii. Sections 31(5) of the Electoral Act, 2010 as amended is not inconsistent with sections 65 and 66 of the Electoral Act, but was enacted by the National Assembly in furtherance of the powers donated to it by the Constitution.

iv. Section 31 (5) of the Electoral Act, 2010 as amended has expanded factors that can disqualify a candidate for election into the Senate, outside those listed in sections 65 and 66 of the Constitution.

iv. The facts of the false information supplied by the 2nd Respondent in his particulars submitted to INEC constitute legal grounds for his disqualification to contest election as Senator of the Lagos East Senatorial District.

GROUND SEVEN

7. The Trial Court erred when it held that double voter’s registration by the 2nd Respondent is not a ground for his disqualification for election into the Senate of the Federal Republic of Nigeria.

PARTICULARS:

i. The fact of double voter’s registration by the 2nd Respondent will constitute a ground for his disqualification, where as in this case, he concealed this fact in his Forms CF001 submitted to INEC, amounts to false information.

ii. The 2nd Respondent in completing his INEC Forms on oath, is expected to state his correct voter’s registration status in full particulars, in the column provided therefor.

iii. The failure of the 2nd Respondent to disclose in his INEC Forms on oath that he registered twice as a voter, amounts to false information and deliberate concealment of material facts, all which constitute grounds for his disqualification under section 31(5) of the Electoral Act, 2010 (as amended).

iv. Any incorrect information on the Forms CF001 (which is same with Forms EC9), is a ground for disqualification of the 2nd Respondent.

GROUND EIGHT

8. The Trial Court erred in law when it preferred the decision of the Supreme Court in Joe Agi v. PDP decided in 2017 to that PDP V. Degi (supra) decided in 2020, in dismissing the case of the Appellants and thereby occasioning a miscarriage of justice.

PARTICULARS:

i. Cases decided by the Courts are limited only to what it decided.

ii. In the 2017 case of Joe Agi v. PDP the Supreme Court based its decision upon the fact that the candidate of the PDP was still within age requirements at law to contest the election and thus could not be disqualified, even if the years in contention were removed from his age.

iii. In the 2020 case of PDP v. Degi, the Supreme Court held that ANY information which is found to be false in the particulars deposed to on oath by a candidate in his CF001 (EC9/EC13) form, constitutes a valid ground for his disqualification.

iv. The Trial Court ought to have followed and hold itself bound by the recent Supreme Court decision on the point.

v. The failure of the Trial Court to follow the latest decision of the Supreme Court on the issue in contention, led it to decide same against the Appellants, albeit erroneously.

GROUND NINE

9. The Trial Court erred when it failed to make a finding on the allegation of the offence of double voter-registration made by the Appellants against the 2nd Respondent, for which he should have been disqualified from contesting the Lagos East Senatorial District bye-election.

PARTICULARS:

i. The Appellants made a case of double voter-registration against the 2nd Respondent, which was confirmed in documents released and certified by the 1st Respondent, INEC.

ii. The Trial Court failed to make a finding on whether there was double voter registration by the 2nd Respondent or not, as alleged by the Appellants.

iii. The Trial Court ought to on the basis of documents submitted to it, make a pronouncement on the effect of the said double voter-registration by the 2nd Respondent, being an issue vigorously canvassed by the Appellants.

iii. The onus of proof of allegation of crime in election related disputes is different from those in a criminal matter, properly so called.

iv. The Trial Court had the duty to examine and determine the fate of the uncontroverted exhibit of double voter-registration by the 2nd Respondent and make a pronouncement thereon.

v. Failure by the Trial Court to make a finding on the issue of double voter registration denied the Appellants their right to fair hearing, when their case was dismissed thereby.

10. The judgment and decision of the trial court is against the weight of evidence.

11. Additional grounds may be filed upon receipt of the certified true copy of the judgment.

4. RELIEFS SOUGHT FROM THE COURT OF APPEAL:

1. AN ORDER allowing this appeal.

2. AN ORDER setting aside the judgment of the Federal High Court, Lagos Judicial Division, delivered on the 1st day of March, 2021, by the Honourable Justice C.A. Obiozor in Suit No. FHC/LA/CS/1361/2020.

3. AN ORDER granting the reliefs contained in the Originating Summons of the Appellants dated 26th September, 2020.

4. AN ORDER disqualifying the 2nd Respondent from representing Lagos East Senatorial District in the Senate of the Federal Republic of Nigeria.

5. AN ORDER nullifying the Certificate of return issued by the 1st Appellant to the 2nd Respondent, on the ground of his non-qualification to have contested the election into the Lagos East Senatorial District by-election which held on December 5, 2020.

6. A CONSEQUENTIAL ORDER directing the 1st Respondent, to withdraw the Certificate of Return issued to the 2nd Respondent, with respect to the office of Senator representing Lagos East Senatorial District.

5. A CONSEQUENTIAL ORDER directing the 1st Respondent to issue a Certificate of return to the 2nd Appellant, who scored second highest votes case in the December 5, 2020 Lagos East Senatorial District Bye-election.

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