Lagos East Senatorial Election: Gbadamosi And PDP Appeal Against Judgment

The Peoples Democratic Party 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 Progressive 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 appelalnts 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 anytime
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.
Please find below 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.

The Peoples Democratic Party 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 Progressive 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 appelalnts 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 anytime
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.
Please find below 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.