Dr. Azeez Olajide Adediran & Anor v. Independent National Electoral Commission & Ors

The appeal herein is against the judgment of the Court of Appeal, Lagos Division delivered on 15th November, 2023, dismissing the Appellants’ appeal against the judgment of the Lagos State Governorship Election Tribunal which had affirmed the return of the 2nd Respondent as the duly elected Governor of Lagos State.

SYNOPSIS OF FACTS
On 18th March, 2023, the 1st Respondent conducted election into the offices of Governor for several states of the Federal Republic of Nigeria, including Lagos State. Inter alia, in Lagos State, the election was contested by the 2nd Respondent on the platform of the 3rd Respondent, the 5th Respondent who contested on the platform of the 6th Respondent and the 1st Appellant sponsored by the 2nd Appellant. At the conclusion of the election, the 1st Respondent, on 20th March, 2023 announced the result and declared the 2nd Respondent winner and consequently returned him as the duly elected Governor of Lagos State. Per the result declared by INEC, the 2nd Respondent garnered 762,134 votes to emerge winner, the 5th Respondent finished second with 312,329 votes, while the

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1st Appellant finished third having scored 62,449 votes.

Being dissatisfied with the outcome of the election, the Appellants filed a Petition challenging same before the Lagos State Governorship Election Tribunal. The Petition was predicated on the following grounds:
“a. The 2nd Respondent, MR. SAMWO-OLU BABAJIDE OLUSOLA and the 3rd Respondent, DR HAMZAT KADRI OBAFEMI were at the time of the election, not qualified to contest the election.
b. The 5th Respondent, ARCH. RHODES-VIVOUR GBADEBO PATRICK declared by the 1st Respondent as having scored the second highest number of votes was, at the time of the election, not qualified to contest the election.”

The following were the reliefs sought by the Appellants in the Petition:
“(a) THAT IT MAY BE DETERMINED AND DECLARED that at the time of the Governorship Election of Saturday, 18th March, 2023, the 2nd and 3rd Respondents were not qualified to have contested the said election.
(b) THAT IT MAY BE DETERMINED AND DECLARED that all the votes recorded for the 2nd, 3rd and 4th Respondents in the said election were wasted votes owing to the non-qualification of the 2nd and 3rd

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Respondents to have participated in that election.
(c) THAT IT MAY BE DETERMINED AND DECLARED that at the time of the Governorship election of Saturday, 18th March, 2023, the 5th Respondent was not qualified to have contested the said election.
(d) THAT IT MAY BE DETERMINED AND DECLARED that all the votes recorded for the 5th and 6th Respondents in the said election as the second highest number of votes cast at the election, were wasted votes owing to the non-qualification of the 5th Respondent to have participated in that election.
(e) THAT IT MAY DETERMINED AND DECLARED that the 5th Respondent having scored the second highest number of votes in the said election, is disqualified from benefiting from the disqualification of the 2nd and 3rd Respondent since the process of his own sponsorship by the 6th Respondent for participation in the 18th March, 2023 Governorship Election in Lagos State was also invalid, null and void.
(f) THAT IT MAY BE DETERMINED AND DECLARED that the Petitioners having scored the third highest number of votes in the 18th March, 2023 Governorship election in Lagos State and having satisfied the provisions of the

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Electoral Act, 2022, is the validly qualified candidate to be returned as the winner of the said election.
(g) THAT IT BE DETERMINED AND DECLARED that the certificate of return given/issued by the 1st Respondent to the 2nd Respondent, as winner of the Governorship Election of 18th March, 2023 in Lagos State conducted by the 1st Respondent is null and void and of no effect whatsoever.
(h) THAT IT DETERMINED AND DECLARED that the 1st Respondent shall forthwith issue the 1st Appellant, DR AZEEZ OLAJIDE ADEDIRAN with a certificate of return as the duly elected Governor of Lagos State.
(i) And such other consequential orders that the honourable tribunal may deem fit to make in the circumstances of this Petition.”

Upon being served with the Petition, each of the Respondents filed their Replies thereto, each Reply incorporating a preliminary objection challenging the competence of the Petition and in turn, the jurisdiction of the trial tribunal. The Appellants in return filed Replies to each of the Respondents’ Replies. Series of applications were also filed by the parties. The applications were heard and ruling thereon reserved until final judgment.

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At the trial of the Petition, the Appellants called five witnesses, two of whom testified on subpoena. The Respondents called a total of four witnesses, with the 1st Respondent, 2nd and 3rd Respondents jointly, 4th and 5th Respondents all calling one witness each. The 6th Respondent did not call any witness.

The case of the Appellants as Petitioners was that the 2nd Respondent was not qualified to contest the election by reason, inter alia, of late submission of his INEC Form EC9 (affidavit in support of personal particulars) to the 1st Respondent, inadequate notification to INEC of the primary election which produced the 2nd Respondent as the candidate of the 4th Respondent, giving false information in his Form EC9 and forgery of his West African Examination Council (WAEC) Certificate. It was the further case of the Appellants that the 5th Respondent who finished second at the election under challenge was, at the time of the election unqualified to contest the election. Consequently, upon disqualification of the 2nd and 5th Respondents who finished winner and runner-up respectively, the 1st Appellant would be the candidate with the

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highest number of votes cast at the election and ought to be declared the duly elected Governor of Lagos State. In short, the case of the Appellants before the trial tribunal was hinged entirely on the disqualification of both the 2nd and 5th Respondents.

The Respondents each denied the case of the Appellants and in addition contended that the 5th and 6th Respondent were not proper parties to the Petition as they were not statutory Respondents by virtue of Section 133 of the Electoral Act, 2022 and that the entire Petition raised pre-election issues. At the conclusion of trial, counsel for the respective parties addressed the tribunal and the matter was adjourned for judgment.

Rulings on the respective applications filed by the parties were delivered together with the judgment. The tribunal struck out the names of the 5th and 6th Respondents from the Petition for not being statutory Respondents, without determining the merit of the allegation that the 5th Respondent was not qualified to contest the election. The tribunal also held that the issues raised in the Petition were pre-election issues and that the Appellants were unable to prove the

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allegations made in the Petition.

Miffed by the decision of the trial tribunal, the Appellants appealed to the Court below. At the lower Court, respective counsel for the 2nd and 3rd Respondents, the 5th Respondent and 6th Respondent filed notices of preliminary objection against the appeal, while also urging the Court to strike out the appeal against the 5th and 6th Respondents. In determining the objections, the lower Court struck out the 5th and 6th Respondents from the appeal, and struck out the grounds of appeal and issues for determination in relation to them. Hence, the Court determined the appeal before it only on the basis of the issues relating to the 1st – 4th Respondents. The Court further held that the issues raised in the Petition were not fit to be decided in an election petition and the issue concerning the 2nd Respondent’s WAEC Certificate was not proved.

Further dissatisfied, the Appellants have instituted this further and final appeal by filing a Notice of Appeal predicated on 24 grounds.

At the hearing of the appeal on 19th December, 2023, respective counsel for the parties identified and adopted their briefs of argument

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and urged their respective dispositions on the Court. Learned silk, Clement Onwuewunor, SAN who led the team of counsel for the Appellants, identified and adopted the Appellants’ brief as well as the Appellants’ reply briefs to each of the 1st, 2nd and 3rd, 4th, 5th and 6th Respondents’ briefs, all settled by Raphael Adakole, Esq. Learned senior counsel then urged the Court to allow the appeal. The following issues were formulated for determination in the Appellants’ brief:
“1. Whether the lower Court was right in striking out the names of the 5th and 6th Respondents and the appeal against them notwithstanding the provisions of Paragraph 49 of the First Schedule to the Electoral Act, 2022 and Section 136(2) of the same Act. (Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal).
2. Whether the lower Court was right in affirming the decision of the tribunal which struck out paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Petitioners’ Reply to the 2nd and 3rd Respondents’ Reply and has not occasioned a miscarriage of justice (Grounds 6, 7 and 8 of the Notice of Appeal)
3. Whether the lower Court was right in affirming the decision

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of the tribunal which raised suo motu the issue of the competence of PW5’s evidence and struck out his witness statement on oath and Exhibits P149 – P152 tendered by him without affording the Appellants an opportunity to be heard on the point. (Grounds 9, 10 and 11 of the Notice of Appeal).
4. Whether the lower Court was right when it held that the grounds of the Appellants’ Petition on disqualification were based on pre-election matters and declined jurisdiction to entertain it. (Grounds 12, 13, 14, 15 and 21 of the Notice of Appeal)
5. Whether by the pleadings, oral and documentary evidence tendered at the trial, the Appellants did not prove the Petition. (Grounds 16, 17, 18, 19, 20, 22, 23 and 24 of the Notice of Appeal)”

In urging the Court to dismiss the appeal, Nas Ogunsakin, Esq., adopted the 1st Respondent’s brief, settled by the same counsel. Five issues were formulated for determination in the brief thus:
“1. Whether the learned Justices of the Court below were right when they held that the Court had no jurisdiction to consider the case of the Appellants against the 5th and 6th Respondents whose names and all pleadings and

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evidence related to them were preliminarily struck out by the trial tribunal for not being necessary parties to the Petition. Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal.
2. Whether the learned Justices of the Court below were right when they affirmed the decision of the trial tribunal striking out paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Petitioners’ Reply to the 2nd and 3rd Respondents’ Reply to the petition and the Witness Statement on Oath of PW3 as well as expunged Exhibits P149 – P152 from the record for being in contravention of Paragraphs 16(1) and 4(5) (a) (b) and (c) of the Electoral Act 2022 and that same does not constitute a breach of the Appellants right to fair hearing. Grounds 6, 7, 8, 9, 10 and 11 of the Notice of Appeal.
3. Whether the learned Justices of the Court below were right when they held that the issue of sponsorship of the 2nd and 3rd Respondents by the 4th Respondent which the Appellants admitted in their Petition is a pre-election matter by virtue of Section 285(14) of the Constitution and which the Appellants lacked the locus standi to challenge and which also by Section 285(9) of the Constitution

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has become statute barred and therefore not open to the Appellants to litigate. Grounds 12, 13 and 14 of the Notice of Appeal.
4. Whether the Court below was right when it held that the Appellants failed to prove their case of non-qualification against the 2nd and 3rd Respondents when all the facts alleged in support of their case were all pre-election matters outside the jurisdiction of the Election Petition Tribunal, and the Appellants failed to adduce any admissible or credible evidence before the trial tribunal. Grounds 15, 16, 17, 18, 19, 20, 21 and 24 of the Notice of Appeal.
5. Whether the Court below was right when it held that the Appellants did not raise any specific grounds of appeal on the dismissal of the Petition by the trial tribunal on the basis of the preliminary objection filed by the 2nd and 3rd Respondents. Grounds 22 and 23 of the Notice of Appeal.”

Chief Wole Olanipekun, SAN, CFR adopted the 2nd and 3rd Respondents’ brief of argument as well as the 2nd and 3rd Respondents’ Notice of Preliminary Objection, both settled by Bode Olanipekun, SAN. Learned silk urged the Court to dismiss the appeal. The following

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issues were submitted for the Court’s determination in the 2nd and 3rd Respondents’ brief:
“i. Whether the lower Court was not right when, in dismissing the appeal, it found that Appellants did not appeal against critical findings of the Tribunal. (Grounds 22 and 23).
ii. Was the lower Court right in affirming the decision of the trial tribunal that the case presented by the Appellants in the Petition before it robbed the trial tribunal of jurisdiction. (Grounds 13, 14 and 15).
iii. Did the lower Court rightly resolve issues relating to the 5th and 6th Respondents before it. (Grounds 1, 2, 3 and 4).
iv. In view of the state of pleadings and evidence before the trial tribunal, whether the lower Court was not right when it affirmed the decision of the trial tribunal that Appellants did not prove their case against the Respondents and were not entitled to the reliefs sought in the Petition. (Grounds 9, 10, 11, 12, 16, 17, 18, 19, 20, 21 and 24).
v. Considering the provisions of paragraph 16 of the First Schedule to the Electoral Act, 2022, was the lower Court right when it affirmed the trial tribunal’s decision striking out

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paragraphs 2 – 14 of the Petitioners’ Reply to the 2nd and 3rd Respondents’ Reply to the Petition. (Ground 6, 7 and 8).”

The 4th Respondent’s brief which was settled by Omotayo Olatunbosun, Esq., was identified and adopted by Dr Muiz Banire, SAN, the lead counsel for the 4th Respondent, who urged that the appeal be dismissed. The following issues were formulated for determination in the brief:
“2.1. Whether the lower Court was right when it held that the failure of the tribunal to determine the validity or otherwise of the Appellants’ complaints against the 5th and 6th Respondents within the 180 days stipulated by law robbed the lower Court of the jurisdiction to determine the Petition against the 5th and 6th Respondents, and thereby rendered the appeal against the 5th and 6th Respondents academic. (Ground 2, 3, 4 and 5).
2.2 Whether the lower Court was right when it affirmed the decision of the tribunal striking out paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Appellants’ Reply to the 2nd and 3rd Respondents’ Reply to the Petition together with PW1’s Witness Statement. (Grounds 6, 7 and 8).
2.3. Whether the lower Court

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was right when it affirmed the decision of the tribunal that declared PW5 an incompetent witness and consequently struck out his witness statement on oath and expunged Exhibits P149 – P152 tendered through him. (Grounds 9, 10 and 11);
2.4. Whether the lower Court was right when it held that the Appellants admitted that the 2nd and 3rd Respondents were sponsored by the 4th Respondent and, thereby, caused the Petition to fail on pleadings. (Ground 12)
2.5. Whether the lower Court was right when it held that the ground of the Petition in paragraph 23(a) of the Petition is a pre-election matter and not matters falling within the scope of Sections 177 and 182 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), which, thereby, robbed the tribunal of jurisdiction to hear and determine the Petition. (Grounds 13, 14, 15)
2.6. Whether the Appellants were able to prove the allegations in the Petition as to enable the grant of the reliefs sought therein. (Grounds 16, 17, 18, 19, 20, 21 and 24)”

The 5th Respondent’s brief of argument and Notice of Preliminary Objection were both settled and adopted in Court by Olagbade Benson,

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Esq. For the 6th Respondent, both its brief of argument and Notice of Preliminary Objection were settled and adopted by I. O. Benson, Esq. Both counsel formulated the same lone issue for determination in their respective briefs thus:
“Whether from the facts and circumstances of the case, the Court of Appeal was right to have struck out the names of the 5th and 6th Respondents from the Appeal. (Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal)”

The 2nd and 3rd Respondents, the 5th Respondent and the 6th Respondent have challenged the competence of the appeal by filing Notices of Preliminary Objection. I will now consider the different objections of the said Respondents.

2ND AND 3RD RESPONDENTS’ PRELIMINARY OBJECTION
The 2nd and 3rd Respondents’ preliminary objection was brought pursuant to Sections 6(6) and 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Order 2 Rule 9 of the Rules of this Court and under the inherent jurisdiction of this Court. The Respondents/Objectors sought for an order striking out/dismissing the entire appeal on the following grounds:
“i. The judgment of the lower Court

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appealed against by the Appellants is rooted in concurrent findings of the lower Courts.
ii. There is/are no allegation(s) of perversity of the concurrent findings of the two lower Courts in any of the grounds contained in Appellants’ Notice of Appeal filed on 27th November, 2023.
iii. Further to (i) and (ii) supra, the jurisdiction of this Honourable Court to determine the appeal before it has not been invoked.
iv. The entire appeal is academic and cannot activate the jurisdiction of this Honourable Court.
v. The case of the Appellants as the Petitioners before the trial Tribunal was that the 1st Appellant who came third at the Lagos State Governorship election held on 18th March, 2023 should be declared as the winner of the said election on the basis that 2nd Respondent (who came first) and the 5th Respondent (who came second) were not qualified to contest the election.
vi. Appellants made separate cases of non-qualification against the 2nd Respondent and 5th Respondent respectively.
vii. The name of the 5th and 6th Respondents were struck out from the petition before the trial tribunal and all the paragraphs relating

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to them for misjoinder.
viii. The trial tribunal did not determine Appellants’ case of non-qualification against the 5th Respondent on the merit, after striking out his name.
ix. The lower Court struck out the names of the 5th and 6th Respondents from the appeal as well as all the grounds of appeal and issues related to them because the Tribunal did not determine the merit of the allegation of disqualification against them within the 180 days time frame donated by the Constitution for the Tribunal to exercise jurisdiction.
x. Further to (ix) above, the lower Court did not also determine Appellants’ case of non-qualification against the 5th Respondent on the merit.
xi. The judgment of the trial tribunal was delivered on 25th September, 2023.
xii. By the provision of Section 285(7) of the Constitution, the lower Court had 60 days from the date of the delivery of the judgment of the trial tribunal to determine an appeal before it.
xiii. The sixty-day period constitutionally allowed the lower Court to determine the appeal before it has lapsed.
xiv. Further to (xiii) above, the lower Court no longer has jurisdiction to

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determine the allegation made in the petition relating to the 5th Respondent’s disqualification
xv. Further to (xiii) and (xiv) above, this Honourable Court is bereft of the vires to do what the lower Court lacks the jurisdiction to do.
xvi. In the absence of jurisdiction to issue an order disqualifying the 5th Respondent, the Appellants who came 3rd at the election have nothing to legitimately urge on this Court.
xvii. Further to (xv) above, the vires to grant any relief in favour of the Appellants is contingent on the vires to disqualify the 5th Respondent which is non- existent.
xvii. A fortiori, this Honourable Court lacks jurisdiction to reliefs (c), (f) (g), (h), (i) and (k) in the Notice of Appeal and consequently is also without jurisdiction to grant all the subsequent reliefs sought, thus making the entire appeal academic.
xix. It is in the interest of justice for this Honourable Court to grant this application.”

ARGUMENTS ON THE 2ND AND 3RD RESPONDENTS’ PRELIMINARY OBJECTION
Learned silk for the 2nd and 3rd Respondents submitted that where there are concurrent findings by the two lower Courts, this Court will

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only disturb those finding where they are found to be perverse. Reliance was placed on CHUBUIKE V. F.R.N. (2023) 4 NWLR (PT. 1875) 573. It was submitted that an Appellant who desires that the concurrent findings of two lower Courts be set aside has a duty to allege and demonstrate perversity of those concurrent findings in his Notice of Appeal and advance same in his brief of argument. Learned senior counsel submitted that the non-inclusion of any allegation of perverseness or fundamental issue such as jurisdiction in the Appellants’ Notice of Appeal clearly indicates that there is no challenge anchored upon the only ground that will activate the jurisdiction of this Court to intervene. He therefore submitted that the Appellants have not activated the jurisdiction of this Court in a manner that will warrant the Court to investigate their complaints against the concurrent findings of the two lower Courts and make a determination one way or the other. The case of ADELEKAN V. ECU-LINE NV (2006) 12 NWLR (PT. 993) 33 was cited in support. It was further submitted that the Appellants have also not made out any argument in their brief, demonstrating that any of the

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concurrent findings of the two lower Courts is perverse, for which this Court should assume jurisdiction.

Arguing further, learned senior advocate submitted that the lower Court found that the trial tribunal did not determine the merit of the case against the 5th and 6th Respondents in relation to their qualification within 180 days, and subsequently struck out their names, the grounds of appeal and issues for determination that related to them, from the appeal. He pointed out that the lower Court, just like the trial tribunal rightly refused to interrogate whether the 5th and 6th Respondents were qualified, as they were not proper parties to the Petition. He submitted that the tribunal had 180 to determine all the issues raised in the Appellants’ Petition, while the lower Court had 60 days to do the same. He submitted that both timespans have since lapsed, with the implication that this Court is without the jurisdiction to determine the merit of the case of alleged disqualification made in the Petition against the 5th and 6th Respondents. Reference was made to the cases of TOFOWOMO V. AJAYI & ORS (2023) LPELR – 61379 (SC); APPEAL NO. SC/CV/935/2023

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BETWEEN: ABUBAKAR V. INEC delivered on 26th October, 2023. Relying on SHETTIMA & ANOR. V. GONI & ORS. (2012) ALL FWLR (PT. 609) 1007; DANLADI V. UMAR (2022) 9 NWLR (PT. 1834) 185, it was submitted that this position of the law remains applicable, even in the face of relief contained in Notice of Appeal seeking the invocation of the provision of Section 22 of the Supreme Court Act. Learned counsel submitted that the consequence of the foregoing is that, in the absence of jurisdiction to evaluate evidence and consider the merit of the case of non-qualification against the 5th Respondent by the two lower Courts, this Court cannot grant reliefs (c), (f) (g), (h), (i) and (k) targeted at the said Respondent and the subsequent reliefs by which 1st Appellant aspires to leapfrog the 5th Respondent so as to assume office of winner is not available to the Appellants, thereby rendering the entire appeal academic. He finally urged the Court to allow the objection and strike out the appeal peremptorily.

In response, learned counsel for the Appellants submitted that the jurisdiction of this Court to entertain the instant appeal is donated by

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Section 233(1)(e)(iv) of the Constitution, while in regular civil appeals, the procedure of invoking the jurisdiction of this Court is as provided in Order 2 Rules 2(5) and 4 of the Supreme Court Rules. He further submitted that by Paragraph 2 of the Supreme Court Pre-Election and Election Appeals Practice Directions, 2023, an Appellant competently invokes the jurisdiction of the Court once he files his notice and grounds of appeal within 14 days from the delivery of the judgment challenged. It was submitted that the Appellants’ Notice of Appeal fulfilled all the required conditions and there is no requirement that a ground or grounds must allege perversity against concurrent findings before this Court’s jurisdiction can be activated. He submitted that the case ofCHUBUIKE V. F.R.N. (supra) relied on by the 2nd and 3rd Respondents is not in support of the position canvassed by them. Counsel submitted that it is an Appellant’s ability to demonstrate substantial error(s) in the judgment appealed against, in his issues for determination distilled from grounds of appeal, that will determine whether this Court will set aside the decision appealed against. Reference was

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made to SOKOTO V. INEC (2022) 3 NWLR (PT. 1818) 588.

Counsel further submitted that the grounds contained in the Appellants’ Notice of Appeal show the perversity of the judgment appealed against and the Appellants’ five issues formulated for determination in the Appellants’ brief clearly demonstrate the grievous errors in the lower Court’s judgment.

On the 2nd and 3rd Respondents’ contention that the appeal is academic, counsel submitted that the 5th and 6th Respondents are represented by counsel in this appeal, thus the 2nd and 3rd Respondents have no locus standi to make arguments on their behalf. OHAKIM V. AGBASO (2010) 19 NWLR (PT. 1226) 172 was cited in support. He submitted that the case of SHETTIMA & ANOR. V. GONI & ORS. (supra) relied on by the 2nd and 3rd Respondents, supports the Appellants’ case as all the materials needed to decide the 5th and 6th Respondents’ disqualification are before this Court. It was submitted that the Appellants did everything expected of them and it will amount to injustice if the dereliction of duty by the two lower Courts, becomes the basis of this Court’s refusal to invoke its powers under Section 22 of the Supreme Court Act.

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ARGUMENTS ON THE 5TH AND 6TH RESPONDENTS PRELIMINARY OBJECTIONS
For the 5th Respondent by his preliminary objection prayed for an order dismissing/striking out the appeal against the 5th Respondent. The objection was brought pursuant to Section 285(2) and (6) of the Constitution, Order 2 Rule 9 of the Rules of this Court and under the inherent jurisdiction of this Court. The grounds of the objection are set out below:
“1. The Appellant made a case of non-qualification against the 5th Respondent to the Petition before the Tribunal.
2. The 5th Respondent filed a Motion on Notice on 8th June, 2023 to strike out his name from the Petition on the ground that he was not one of the statutory Respondents recognized by virtue of Section 133 of the Electoral Act 2022 nor a necessary party to the Petitioners’ Petition.
3. The Tribunal granted the 5th Respondent’s application and in a separate ruling preliminary (sic) and struck out the 5th Respondent’s name from the Petition and in a separate ruling struck out the paragraphs of the pleadings traversed against the 5th and 6th Respondents in the Petition.
4. The

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Tribunal did not determine Appellants’ case of non-qualification against the 5th Respondent on merit after striking out his name and pleadings against him and the 6th Respondent.
5. 180 days provided for the Tribunal by virtue of Section 285 of the 1999 Constitution (as amended) to determine the merits of the Petition as relating to disqualification against the 5th Respondent have lapsed.
6. This Court cannot step into the shoes of the tribunal to determine the merit of the Petition against the 5th and 6th Respondents.
7. This Court lacks jurisdiction to grant reliefs (f), (g) and (h) made against the 5th and 6th Respondents in the Notice of Appeal. Consequently, the appeal against the 5th and 6th Respondents is academic and should be dismissed.
8. It is in the interest of justice for the Court to grant this application.”

The 6th Respondent’s preliminary objection was brought pursuant to Order 2 Rule 9 of the Rules of this Court and under the inherent jurisdiction of the Court. The prayer was for an order dismissing/striking out the appeal against the 5th and 6th Respondents. The objection was predicated on the following grounds:

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“1. The Appellant made a case of non-qualification against the 5th Respondent and joined the 6th Respondent to the Petition before the Tribunal.
2. The 5th Respondent filed a Motion on Notice on 8th June, 2023 to strike out his name from the Petition on the ground that he was not one of the statutory Respondents recognized by virtue of Section 133 of the Electoral Act 2022.
3. The Tribunal granted the reliefs sought by the 5th Respondent and in a separate ruling preliminarily struck out the 5th & 6th Respondents’ names from the Petition and struck out the paragraphs of the pleadings traversed against the 5th and 6th Respondents in the Petition.
4. The Tribunal did not determine Appellants’ case of non-qualification against the 5th Respondent on merit after striking out his name and pleadings against him and the 6th Respondent.
5. 180 days provided for the Tribunal by virtue of Section 285 of the 1999 Constitution (as amended) to determine the merits of the Petition as relating to disqualification against the 5th Respondent have lapsed.
6. This Honourable Court cannot step into the shoes of the Tribunal to determine the

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merit of the Petition against the 5th and 6th Respondents.
7. This Honourable Court lacks jurisdiction to grant reliefs (f), (g) and (h) made against the 5th and 6th Respondents in the Notice of Appeal. Consequently, the appeal against the 5th and 6th Respondents is academic and should be dismissed.
8. It is in the interest of justice for the Court to grant this application.”

The grounds of the respective objections of the 5th and 6th Respondents as well as the arguments canvassed in support of same are similar, if not identical. I will therefore summarize the arguments and the Appellants’ reply arguments thereto, together.

Respective counsel for the 5th and 6th Respondents formulated the same single issue for determination in their separate preliminary objections. The issue is reproduced below:
“Whether this honourable Court has jurisdiction to determine the appeal against the 5th and 6th Respondents on merit in view of the provision of Section 285(6) of the 1999 Constitution (as amended) which limits the period for the hearing and determination of the election petition to 180 days.”

Most of the arguments made by the 5th

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and 6th Respondents mirror those of the 2nd and 3rd Respondents. There is no point repeating those here. I will therefore focus only on those arguments that have not been canvassed by the 2nd and 3rd Respondents’ counsel.

Respective counsel for 5th and 6th Respondents submitted that by virtue of Section 285(2) of the Constitution, it is only the trial tribunal that has original jurisdiction to determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State. It was submitted that the tribunal having struck out the names of the 5th and 6th Respondents from the Petition and having not considered the disqualification or otherwise of the 5th Respondent, this Court cannot sit as a Court of first instance to determine the issue without leave having been first sought and obtained. They submitted that there is a concurrent decision of the trial tribunal and the lower Court on the striking out of the names of the 5th and 6th Respondents from the Petition as not being necessary parties for the determination of the Petition and appeal before the tribunal and the lower Court respectively. It was further

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submitted that the implication of seeking reliefs against the 5th and 6th Respondents is an invitation to this Court to sit as a trial tribunal and extend the time circumscribed by the Constitution which this Court does not have the power to do. Reliance was placed on MARWA & ORS V. NYAKO & ORS (2012) LPELR-7837 (SC). They finally urged the Court to strike out or dismiss the appeal against the 5th and 6th Respondents as the appeal against them has become an academic issue.

In response, the Appellants’ counsel submitted that the 5th and 6th Respondents’ contention that this Court lacks jurisdiction to entertain the Appellants’ appeal against the 5th and 6th Respondents, undermines the status of this Court as the highest Court of the land. He submitted that the argument overlooks the fact that the Appellant led evidence at the trial and tendered several documents to prove their case of disqualification against the 5th and 6th Respondents, who also defended the action by calling a witness and tendering several documents. It was submitted that all that was left for the tribunal to do was to pronounce on the disqualification or otherwise of the 5th

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and 6th Respondents. Counsel submitted that the tribunal failed to apply the provisions of Paragraph 49 of the First Schedule to the Electoral Act and Section 136(2) of the same Act, but rather struck out the names of the 5th and 6th Respondents for not being necessary parties. He urged this Court to overrule the preliminary objection.

Although the 2nd and 3rd Respondents’ preliminary objection raised an issue which was not raised by the 5th and 6th Respondents in their respective preliminary objections, most of the issues raised in the respective preliminary objections under consideration are similar. I will thus determine them together.

RESOLUTION OF ALL THE PRELIMINARY OBJECTIONS
The object of a preliminary objection is to terminate an action or appeal at its infancy, such that where it succeeds, there will be no need to consider the appeal or action on the merit. See BANK OF INDUSTRY LTD V. AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR – 43812 (SC), PDP V. SHERRIF & ORS (2017) LPELR-42736 (SC), ADEJUMO & ORS V. OLAWAIYE (2014) LPELR – 22997 (SC). This has the advantage of saving precious and scarce judicial time and energy which

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are better expended on more productive ventures.

The respective preliminary objections under consideration are challenging the jurisdiction of this Court. Simply put, jurisdiction is the power and authority of a Court of law or tribunal to adjudicate over a dispute or controversy. It has been defined as the authority which a Court has to decide matters before it or take cognizance of matters presented before it for its decision. Hence, it cannot be gainsaid that the jurisdiction of a Court forms the foundation of any proceedings. Once the foundation is found to be faulty or non-existent, the Court must bring the proceedings to an end. Any proceedings conducted, including the judgment or decision rendered, without jurisdiction amount to a nullity and a time-wasting exercise. In order to avoid undertaking an exercise in futility, a Court should always first consider and determine the question of its jurisdiction before delving further into the dispute submitted to it. If it is found that the Court has jurisdiction, it can proceed with the resolution of the dispute submitted to it, otherwise the case or appeal before it comes to an end

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.See UNIVERSAL PROPERTIES LTD V. PINNACLE COMMERCIAL BANK & ORS (2022) LPELR – 57808 (SC), AKERE & ORS V. GOV OF OYO STATE & ORS (2012) LPELR – 7806 (SC), DINGYADI & ANOR V. INEC & ORS (2010) LPELR – 40142 (SC), SHELIM & ANOR V. GOBANG (2009) LPELR – 3043 (SC), NDIC V. CBN & ANOR (2002) LPELR-2000 (SC).

The objections to the jurisdiction of this Court raised in the present appeal are on two broad grounds. Firstly, the objection to jurisdiction raised by the 2nd and 3rd Respondents on the ground that the Appellants have not validly invoked the jurisdiction as they did not allege that the concurrent findings grounding the judgments of the two lower Courts were perverse. Secondly, the objection to the jurisdiction of the Court raised by the 2nd and 3rd Respondents, 5th and 6th Respondents on the ground that the appeal has become academic. I will now consider the objection on the ground that the appeal is academic.

Before I proceed further, let me quickly address the Appellants’ counsel’s contention that the 2nd and 3rd Respondents cannot canvass arguments in relation to the trial tribunal and lower Court’s non-consideration of the 5th

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Respondent’s alleged non-qualification. Learned Appellants’ counsel contended that since the 5th and 6th Respondents are represented by counsel, the 2nd and 3rd Respondents cannot canvass arguments on their behalf. This contention does not hold water for two reasons. To begin with, the issue borders on the fundamental issue of the jurisdiction of the Court to adjudicate over this appeal. Secondly, the success of the issue is not simply to the benefit of the 5th and 6th Respondents. In fact, it benefits the 2nd and 3rd Respondents more than anyone else as it is their election that is under challenge and their return as the Governor and Deputy Governor of Lagos will remain if this Court declines jurisdiction to entertain the appeal.

It has been stated and restated in a legion of decisions of this Court that Courts of law are not academic institutions and therefore do not embark on academic exercises. What this means is that Courts do not interpret the law or entertain cases brought before them just to offer insights into principles of law. Courts of law or tribunals do not entertain matters in a vacuum or on moot points. Courts are to decide live issues

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and disputes that are capable of conferring benefits on the successful party. Where the decision of a Court will be of no benefit to a successful party, the matter before Court is said to be academic. An academic issue is a defunct issue, it is spent, moribund, devoid of any practical or utilitarian value and of no benefit to anyone. Merriam-Webster Dictionary contains different definitions of the word “academic”, but in relation to the preliminary objection being considered the following definitions are relevant:
“3 a: THEORETICAL, SPECULATIVE
b: having no practical or useful significance.”
In KOKO V. KOKO (2023) 13 NWLR (PT. 1901) 249 at 280, Paras. A – D, this Court elucidated thus:
“An academic issue is one which would neither confer benefit on, nor injure any of the parties, but merely propound the law. A suit or appeal becomes academic when the questions placed before the Court for determination are no longer live issues in the subject matter of the suit. See Ebebi v. Esemokumor (2022) 1 NWLR (Pt. 1812) 463, Ebebi v. Ozobo (2022) 1 NWLR (Pt. 1810) 165, Agbakoba v. I.N.E.C. (2008) 18 NWLR (Pt. 1119) 489. It is trite law that Courts

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do not act in vain. Courts are urged not to dissipate scarce judicial energy on the consideration of academic, hypothetical or moot issues/points. If no purpose will be served by an action or appeal or any issue raised in it other than its mere academic interest, the Court will not entertain it. Put in other words, Courts have no jurisdiction to entertain academic issues.”
See also P.D.P. V. JARIGBE (2021) 14 NWLR (PT. 1796) 239, MIN., W.T., ADAMAWA STATE V. YAKUBU (2013) 6 NWLR (PT. 1351) 481, MACAULAY V. R.Z.B., AUSTRIA (2003) 18 NWLR (PT. 852) 282.
An academic issue, suit or appeal is therefore one which is incapable of conferring any benefit on a successful party.

The grouse of the objectors is that in the event that this Court finds that the 2nd Respondent was not qualified to contest the election in question, the Appellants would nevertheless be unable to reap any benefit from their success as this Court is precluded from interrogating the non-qualification or otherwise of the 5th Respondent who came second in the election.

At the trial tribunal, all the Respondents incorporated preliminary objections against the Petition in their

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replies filed in response to the Petition. The 2nd and 3rd Respondents also filed a separate application seeking the striking out or dismissal of the Petition. The 5th Respondent equally filed an application seeking the striking out of his name as well as all pleadings in relation to him, from the Petition. The tribunal obliged by dismissing the Petition and striking out the 5th and 6th Respondents, the pleadings relating to them as well as the evidence given in relation to them, from the Petition as they were not statutory Respondents as prescribed in Section 133 of the Electoral Act. The Court however considered the merit of the Petition, but without determining the qualification or otherwise of the 5th Respondent to contest the election.

Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) has delimited the period within which an election tribunal must dispose of a Petition to 180 days, while Section 285(7) of the Constitution circumscribed the time within which an appellate Court shall dispose of an appeal arising from an election Petition to 60 days. Both subsections are reproduced below:
“(6) An election

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tribunal shall deliver its judgment in writing within 180 days from the date of filing of the petition;
(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal.”
It is settled that when the Constitution has prescribed a time frame for the doing of a thing, that time limit must be strictly complied with. No person or authority has the power to extend such time limit except as may be prescribed by the Constitution itself, not even this Court, the supreme adjudicatory institution of the land. See UGBA & ORS V. SUSWAM & ORS (2012) LPELR – 9726 (SC), OGBORU & ANOR V. UDUAGHAN & ORS (2012) LPELR – 8287 (SC), PDP V. CPC & ORS (2011) LPELR-2909 (SC). It is therefore not in doubt that the time frame prescribed by the Constitution for the disposal of election petitions and appeals arising therefrom is immutable, ironclad and carved in stone.

Despite the fact that neither the trial tribunal nor the Court below determined the non-qualification of the 5th Respondent to contest

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the election, the Appellants have by relief (c) contained in their Notice of Appeal urged this Court to invoke its powers under Section 22 of the Supreme Court Act to determine the entire Petition. In responding to the various preliminary objections under consideration, learned counsel for the Appellants argued that the conditions for the exercise of this Court’s powers under Section 22 of the Supreme Court Act are present in this appeal. There is no doubt that this Court is vested with wide powers under Section 22 of the Supreme Court Act, which include the power to step into the shoes of the lower Court or the trial Court where necessary and the power to make any order necessary for determining the real question in controversy in the appeal. The powers exercisable by this Court by virtue of the said section are however guided by certain well-settled parameters that have been subject of judicial pronouncements in a number of decisions. In AGBAKOBA V. INEC & ORS (2008) LPELR – 232 (SC) at page 80, paras B – G, Chukwuma-Eneh, JSC outlined the conditions for the exercise of the powers conferred on this Court by Section 22 of the Supreme Court Act thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”>

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“In the case of Peter Obi v. INEC & Ors. (supra), this Court per Aderemi, JSC., has at pages 639-640 H-B, set out the conditions, I go on to scrutinize the conditions for bringing the provisions of Section 22 into play and they are summarized as follows:
1. The lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it;
2. The real issue raised by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal;
3. All necessary materials must be available to the Court for consideration;
4. The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and
5. The injustice or hardship that will follow if the case is remitted to the Court below, must be clearly manifest itself.
These conditions as enunciated above have informed important landmark decisions in the cases cited above in this connection. See Peter Obi v. INEC & Ors. (supra), Amaechi v. INEC & Ors. (supra) and Inakoju v. Adeleke & Ors. (supra).”

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The very first condition stated in the above decision is that the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it. I have stated earlier that the time limit prescribed by the Constitution for both the trial tribunal and the lower Court to dispose of the Petition and appeal before them respectively, have lapsed. In essence, both the tribunal and the Court below have, by operation of Sections 285(6) and (7) respectively, lost or been stripped of the jurisdiction to entertain the Petition of the Appellants or any aspect thereof. The jurisdiction or power of this Court vested by Section 22 of the Supreme Court Act is entirely and completely dependent on the competence of the trial Court or lower Court, as the case may be, to exercise jurisdiction. The loss of the jurisdiction of both Courts automatically translates to the incapability of this Court to step into their shoes pursuant to Section 22 of the Supreme Court Act, since by dint of that provision, this Court can only do what the trial or lower Court can do, not what they cannot do. See P.D.P. V. I.N.E.C. (2023)

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13 NWLR (PT. 1900) 89, TOFOWOMO V. AJAYI & ORS (2023) LPELR – 61379 (SC), SAMUEL V. APC & ORS (2023) LPELR- 59831 (SC), EZENWANKWO V. APGA & ORS (2022) LPELR-57884(SC). Thus, the question of the non-qualification or otherwise of the 5th Respondent cannot be adjudicated upon in this appeal.

It should be borne in mind that the 1st Appellant finished third at the election, behind the 2nd and 5th Respondents who came first and second respectively. The two grounds of the Appellants’ Petition have been reproduced earlier in this judgment. Ground (a) is to the effect that the 2nd Respondent and the 3rd Respondent, who ran alongside him as his Deputy Governorship candidate at the election, were at the time of the election, not qualified to contest. Ground (b) challenged the qualification of the 5th Respondent to contest the election. The Appellants did not complain against the conduct of the election either on the ground of corrupt practices or non-compliance with the provisions of the Electoral Act, 2022. Similarly, the Appellants did not complain that the 2nd Respondent did not score the highest number of lawful votes cast or that the 5th

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Respondent did not score the second highest number of lawful votes cast at the election. The implication of this is that the success of Appellants’ Petition was hinged solely, sheerly, completely and entirely on the disqualification of both the 2nd and 5th Respondents. If the Appellants succeed in moving the tribunal or this Court to disqualify the 2nd Respondent alone, they would only have succeeded in assisting the 5th Respondent.

Since the 5th Respondent cannot be disqualified, the Appellant cannot derive any benefit from the appeal. In other words, the appeal as it is, is academic as it is merely theoretical, makes empty sound, and of no practical utilitarian value to the Appellants even if judgment is given in their favour. See Per Niki Tobi, JSC in PLATEAU STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2006) 3 NWLR (PT.67) 346. The academic nature of the appeal has robbed this Court of the jurisdiction to entertain it.

Learned counsel for the Appellants contended that it would amount to “monumental injustice” if this Court declines jurisdiction. With due respect, I strongly disagree with this position. There can be no justification whatsoever

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for the exercise of jurisdiction by a Court where it is clearly non-existent. In OLOBA V. AKEREJA (1988) 3 NWLR (PT. 84) 508 at 520, para. E – F, this Court per Obaseki, JSC reasoned thus:
“There is no justice in exercising jurisdiction where there is none. It is injustice to the law, to the Court and to the parties so to do. I am therefore unable to accept appellant’s Counsel’s submission that the Court of Appeal should not have entertained ground 1 (b) which raised the issue of jurisdiction simply because it was not so raised in the High Court. Once an issue of jurisdiction is raised, it should be examined in all its ramifications. It should not be compartmentalised and subjected to piecemeal examination and treatment. The very many faces of jurisdiction should come under the searchlight and pronounced upon.”

Before I round off, I have to say that having studied the Appellants’ Petition, I am appalled about the nature of the issues raised therein. The issues are a clear manifestation and continuation of the ugly trend of Petitioners who have no legitimate complaint against the conduct of an election resorting to raising pre-election and

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non-justiciable issues before Election Petition Tribunals. Candidates who have no complaints within Sections 65, 66, 106, 107, 131, 137, 177 or 182 of the Constitution should desist from piling up the case loads of our Judges and Justices with watery claims under the guise of election petitions.

In the Appellants’ case of non-qualification against the 2nd Respondent, they complained about the conduct of 4th Respondent’s primary election that produced the 2nd Respondent as its governorship candidate for Lagos State, including allegation of insufficient notice to INEC (even though INEC admitted monitoring the primary election) and non-compliance with the requirements of the Electoral Act in the conduct of the primary election.
These are issues of sponsorship and nomination, which the Appellants not only lacked the locus standi to raise, but are also pre-election matters that only a member of the party who was an aspirant at the impugned primary election can complain about. Assuming arguendo that the Appellants had locus standi to complain about the conduct of the primary election, the complaints are statute barred by virtue of Section 285(9) of the Constitution

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which provides that such an action must be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit. The allegation of forgery levelled against the 2nd Respondent was laughably unproved to the standard required of a criminal allegation. In fact, the testimony of PW5 who was subpoenaed at the instance of the Appellants comically contradicted their case so much so that the Appellants’ counsel tried, albeit in vain, to move the trial tribunal to declare the witness a hostile witness in order to cross- examine him. It is therefore clear that the Appellants’ Petition was fatally beset by multiple irreparable defaults and fractures.

All in all, the 2nd and 3rd Respondents’ preliminary objection, the 5th Respondent’s preliminary objection and the 6th Respondent’s preliminary objection all succeed and they are hereby sustained.

The appeal is academic, thereby depriving this Court of the jurisdiction to adjudicate thereon. Same is hereby dismissed. There will be no order as to costs.
Appeal dismissed.