Mr. Olasunkanmi Kazeem Shittu v. Independent National Electoral Commission (INEC) & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO, JCA (Delivering the leading judgment)

The appellant and 2nd respondent were aspirants at the 3rd respondents primary election for the selection of candidate to fly the flag of the 3rd respondent in the forthcoming 2023 general election for the election of member representing Surulere Constituency II in the Lagos State House of Assembly.

The 2nd respondent won the primary election and was nominated by the 3rd respondent as its candidate for the election and her name and particulars forwarded to the 1st respondent by the 3rd respondent.

As enjoined by the Electoral Act, the 1st respondent published, at its Lagos Office, the 2nd respondents affidavit In support of personal particulars (Form EC9). Consequent upon the publication, the appellant became aware that the 2nd respondents nomination is invalid in view of false information supplied by her in the affidavit (Form EC9) concerning her academic qualifications as well as the forgery of Higher National Diploma Certificate of Yaba College of Technology and NYSC exemption certificate.

The appellant challenged the nomination of the 2nd respondent before the Federal High Court, Lagos (the lower court), by taking out a writ of summons, in which he sued the respondents, respectively as 1st, 2nd and 3rd defendants, claiming declaratory reliefs that the information contained in Form EC9 is false; that the HND Certificate and NYSC exemption certificate presented by the 2nd respondent are forged; that the 2nd respondent is disqualified from contesting the election on account of false information and forgery; an order declaring the appellant as the candidate of the 3rd respondent and perpetual injunction mandating the 1st respondent to remove the name of the 2nd respondent and replace it with that of the appellant.

The 1st respondent on one hand and the 2nd & 3rd respondents jointly, on the other, filed their respective statements of defence wherein they denied the claim of the appellant. At the conclusion of trial, the lower court, in a considered judgment delivered on 12/01/2023 by Justice I. N. Oweibo, dismissed the claim of the appellant.

Peeved by the decision, the appellant approached this court vide a notice of appeal filed on 13/01/2023, predicated on seven grounds of appeal.

As required by the rules of court and Practice Direction on Election Matters, parties filed and exchanged briefs of argument. In the appellants Brief, settled by Dr. Kemi Pinheiro, SAN, leading a team of Lawyers, though signed by Adebowale Kamoru, Esq., filed on 01/02/2023, six issues were distilled for determination, as follows:

1. Whether, having regards to the issues joined by the parties in their respective pleadings and the evidence led, the learned trial Judge was right in holding that the appellant failed to establish that the certificate in exhibit P13 was forged? (Ground 3)
2. Whether, having regards to the issues joined by the parties in their respective pleadings and the evidence led, the learned trial Judge was right in holding that the 2nd & 3rd respondents did not submit the 2nd respondent’s alleged academic certificates, including the certificate in exhibit P13 to the 1st respondent? (Ground 6)
3. Whether having regards to the issues joined by the parties in their respective pleadings, the learned trial Judge was right in holding that the Higher Educational Qualification referred to in the 2nd respondent’s Form EC9 and/or submitted to the 1st respondent is a National Diploma different and distinct from the Higher National Diploma upon which the case of the appellant was founded? (Grounds 4 and 5).
4. Whether the learned trial Judge was right in holding that the 2nd respondent’s Form EC9 is not an affidavit envisaged under the law? (Ground 7)
5. Whether having regard to the totality of the appellant’s pleading (particularly paragraph 12(a) of the statement of claim and the evidence led thereon, the learned trial Judge was right in holding that the 2nd respondent did not give false information relating to the constitutional requirements in section 106 of the Constitution in her Form EC9? (Grounds 1 and 2 of the notice of appeal).
6. Whether on the preponderance of evidence, the learned trial Judge was right to have dismissed the appellant’s (sic: case?) as having not been proved? (Ground 8)

The 1st respondents brief, settled by Sulayman Olawale Ibrahim, SAN, with 6 other counsel, was filed on 06/02/2023. The 1st respondent adopted the six issues distilled by the appellant, with slight modifications. Babatunde John Kwame Ogala, SAN, leading 8 other counsel, settled and filed the brief of argument of the 2nd and 3rd respondents on 06/02/2023, wherein he adopted the six issues presented for determination by the appellant.

The 2nd & 3rd respondents Brief was signed by Adebisi Oridate, Esq. On the said 06/02/2023, the 2nd & 3rd respondents filed a separate notice of preliminary objection which they argued at pages 4 – 9 of their brief of argument. The appellants response to the objection occupies pages 2 – 4 of the appellants reply brief to the Brief of the 2nd & 3rd respondents. The appeal was argued on 15/02/2023, with learned senior counsel for the parties adopting and relying on their respective briefs of argument.

The preliminary objection

As the first judicial duty in this appeal, it is pertinent to dispose of the preliminary objection raised by the 2nd & 3rd respondents. The necessity of determining the objection first before examining the issues in the appeal is underscored by the fact that if the objection is sustained, it terminates the hearing of the appeal and disposes of it in limine. See First Bank of Nig. Plc v. Agbara & Ors. (2020) LPELR-50632 (SC), Nasko & Anor. v. Bello & Ors. (2020) LPELR-52530 (SC).

In their notice of preliminary objection, the 2nd & 3rd respondents prayed the court for an order dismissing or striking out this appeal in its entirety, for being statute barred, incompetent and therefore the court lacks jurisdiction to hear same. The objection was predicated on the following grounds:

i. Pre-Election matter is sui-generis and section 285(9) Constitution of the Federal Republic of Nigeria, 1999 (as amended) mandatorily provides that a pre-election matter shall be filed within 14 days of the occurrence of the act complained of.