Senator Bassey Edet Otu & Ors v. Independent National Electoral Commission (INEC) & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, JCA (Delivering the leading ruling)

By an application filed on 1/11/2023, the 2nd and 3rd respondents/applicants prayed for the following orders:-

(1) An order striking out ground of appeal No: 30 in the appellants/respondents notice of appeal filed in this appeal (appeal No: CA/C/EP/GOV/31/2023) on the 9th day of October, 2023.

(2) An order striking out issues for determination Number 11, 18, 19 and 20 in the appellants brief of argument in this appeal (appeal No: CA/C/EP/GOV/CR/31/2023, filed on the 23rd of October, 2023.

(3) And for such further or other orders as this honourable court may deem fit to make in the circumstances of this case.

The grounds upon which the application is predicated are as follows:-

1. Ground of appeal No: 30 raises two distinct complaints, namely, complaint against the holding of the lower court that even if the 3rd respondent had sworn to oath of allegiance to the United Kingdom, that would not disqualify him from holding public office in Nigeria; and secondly, complaint that the issue of the alleged lying on oath by the 3rd respondent that he did not swear to oath of allegiance to the United Kingdom, is a pre-election matter.
2. The said ground of appeal No: 30 is therefore incompetent for raising the aforesaid two distinct complaints.
3. Issue for determination No: 19 formulated from the said incompetent ground of appeal No: 30, is consequently incompetent and ought to be struck out as well.
4. Issue No: 11 raises two separate and distinct complaints, namely, complaint against the holding of the lower court that the petitioners did not plead facts and lead evidence to show that the falsity was to aid his qualification to contest for the Governorship; and secondly, complaint as to whether the lower court was right in allegedly making an alibi for the 2nd respondent that if the false claims relating to the dates in Forms EC9 (exhibit D52B) were designed to aid his qualifications he would have attached his certificates to the said Forms and that the incorrect dates were clerical errors.
5. By reason of the foregoing, issue No: 11 together with the arguments canvassed thereunder is incompetent.
6. Issue for determination No: 18 is academic and incompetent by reason of the failure of the appellants/respondents to appeal against the finding of the lower court at page 262 of the judgment of the lower court at page 4878 Vol. 7 of the record of appeal.
7. Issue for determination No: 19 is further incompetent for raising two distinct complaints, to wit, whether section 28 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) legalizes the taking of oath of allegiance to a foreign Country by a Nigerian seeking elective position; while the second complaint is Whether lying in the information contained in INEC Form EC9 (exhibit D52B) by the 3rd respondent is a pre-election matter.
8. Issue for determination No: 20 is incompetent for raising two separate and distinct issues, namely, whether the 3rd respondent can be a member of two Political Parties at a time; and the second issue being whether the Membership Register of the 2nd respondent submitted to the 1st respondent (INEC) pursuant to section 77 of the Electoral Act, 2022 is the internal affair of the 2nd petitioner that has no bearing on the 3rd respondents Membership of the 4th respondent.
9. Issue for determination No: 20 is further academic and incompetent for the appellants/respondents failure to appeal against the finding of the lower court at page 270 of the judgment of the lower court at page 4886 Vol. 7 of the record of appeal.
10. It is in the interest of justice to grant this application.
11. The appellants/respondents and other respondents will not be prejudiced by this application.

The application is supported by 4 paragraphs affidavit.

The summary of what is contained in the affidavit are that the appellants/respondents being dissatisfied with the judgment of the lower court filed a notice of appeal in this court and subsequently filed their appellants’ brief of argument.

It was stated that ground No: 30 of the notice of appeal raises two distinct complaints, namely:

Complaint against the holding of the lower court that even if the 3rd respondent had sworn to oath of allegiance to the United Kingdom, that would not disqualify him from holding public office in Nigeria and

Secondly complaint that the issue of the alleged lying on oath by the 3rd respondent that he did no swear to oath of allegiance to the United Kingdom is a pre-election matter.

It was stated further that the said ground of appeal No: 30 is incompetent for raising the aforesaid two distinct complaints.

The issue for determination No: 19 formulated from the said incompetent ground of appeal No: 30 is consequently incompetent and ought to be struck out.

Furthermore that issue No: 11 raises two separate and distinct complaints namely complaint against the holding of the lower court that the petitioners did not plead facts and lead evidence to show that the falsity was to aid his qualification to contest for the Governorship and secondly, complaint as to whether the lower court was right in allegedly making an alibi for the 2nd respondent that if the false claims relating to the dates in Forms EC9 (exhibit D52B) were designed to aid his qualifications he would not have attached his certificates to said Forms and that the incorrect dates were clerical errors.