Iniobong Titus Okpoido V. Dr. Francis Udoikpong & Ors (1999)
LawGlobal-Hub Lead Judgment Report
EKPE, J.C.A.
This is an appeal from the ruling of that Local Government Election Tribunal, Akwa Ibom State, sitting at Uyo in the election petition No. LGET/AK/31/98, filed by the appellant. The ruling was delivered on the 3rd of February, 1999, and the election petition was struck out. The petitioner now the appellant was a candidate for the chairmanship election for Ika Local Government Council under the platform of Peoples Democratic Party (P.D.P). The election was held on the 5th day of December, 1998. Other candidates who vied in the said chairmanship election were the 1st respondent, Dr. Francis Udoikpong, or the All Peoples Party (A.P.P) who was declared the winner and one Dr. Justin Idiong under the platform of Alliance for Democracy (A. D) who was not made any in the petition. The appellant in his petition complained of electoral malpractices such as corrupt practices, thuggery, irregularities and other electoral offences that made the election inconclusive and a mockery. He also complained that at some wards within the said Ika Local Government Area, electoral materials were not sent resulting in no election thereat. The appellant further complained that at the close of the election on the 5th day of December, 1998, there were no results at all in any of the units throughout the said Local Government Area as none was announced and/or declared for any of the councillorship and/or for the chairmanship election. He asserted that on Tuesday, the 5th of December, 1998, three days after the election, the 3rd respondent purportedly announced the forged results declaring the 1st respondent elected and ordered that bye-election be held for the councillorship candidates in four wards in the Local Government Area. The appellant in his election petition therefore prayed the Election Tribunal that the purported election of the 1st respondent be cancelled or declared nullified as a result of substantial disturbance intervening in the course of the election, and a fresh or bye-election be ordered by the honourable Election Tribunal throughout Ika Local Government Area for the purpose of electing the Chairman. The 1st respondent whose election to the office of Chairman of Ika Local Government Council, Akwa Ibom State, was being challenged by the appellant at the Election Tribunal filed a memorandum of conditional appearance to the election petition and followed up with the filing of motion on notice the Election Tribunal praying for an order dismissing the petition on the ground that it was filed outside the statutory period allowed for filing election petitions pursuant to section 82 of Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. The motion was dated 12th January, 1999 and was filed on the 13th of January, 1999 with an affidavit in support. I shall reproduce the salient paragraphs or the affidavit as follows:
‘”(1) That on the 5th of December, 1998 I was elected Chairman of Ika Local Government Area and I have been served with a petition filed on the 21st of December, 1998, challenging the said election by Iniobong T. Okopido who contested the election on the platform of the PDP.
(2) That the result of the election was announced at INEC office Ika Local Government Area on the night of the 5th December 1998 whereat I was issued with Form EC8E (Declaration of Result of Election or Chairman or Council, Ika Local Government Area) annexed hereto as Exhibit ‘A’.
(3) That my solicitor, Chief Assam, advised me and I believe him that the petition is incompetent having been filed out of time and I verily believe him.”
The appellant filed a counter-affidavit of 9 paragraphs in answer to the 1st respondent’s affidavit in support of his motion. Because of the importance attached to this affidavit, I shall set out the paragraphs wholly:
“(1) I am and (sic) the petitioner/respondent and haw been served with the motion paper of the 1st respondent/applicant herein.
(2) I deny paragraphs 1-5 of the affidavit that elections were held on 5/12/98 in Ika Local Government and the results released and/or declared at INEC Ika Local Government Area or any where else throughout Akwa Ibom State for that matter.
(3) The first batch of results for the 5/12/98 elections were announced on 6/12/98 without that of Ika Local Government Area which had not yet been declared as they were no elections. A copy of the result prepared and announced by INEC, Uyo on 6/12/98 is exhibited hereto and marked ‘AA’.
(4) Exhibit ⢠AA’ was released in a press conference held at the INEC Headquarters, Urban Street, Uyo by the Resident Electoral Commissioner (REC) and widely attended by journalists from media houses in the State.
(5) According to the REC at the press conference, the Ika Local Government Area results were unacceptable because the 2nd respondent brought them in pieces of paper.
(6) The results from Ika Local Government Area were being awaited till 8/12/98 when the applicant in concert with other respondents to this petition finally cooked up same and about mid-day on 8/12/98 the 3rd respondent through the INEC purportedly announced the result for Ika Local Government Area and schedules of elections when: run-off and bye-elections were made. A copy of the press release signed by Bassey Ekanem for the REC is exhibited hereto and marked ‘AB’,
(7) The fact that the Ika Local Government Area chairmanship election result was being awaited till 8/12/98 as announced by INEC, Uyo, was a common knowledge in Akwa Ibom State and beyond and was widely reported in the electronic and print media as shown in Exhibit’ AC’,
(8) The petition was actually assessed and paid for on 18/12/98 but the Registry had run out of receipt and could only issue same on 21/12/98
(9) And I swear to this affidavit in good faith conscientiously believing in its truth in accordance with the Oaths Act.”
In view or the conflicts observed in the paragraphs of both affidavits, the Election Tribunal decided to take oral evidence with the view of resolving the conflicts. The respondent/applicant called the Resident Electoral Commissioner for Akwa Ibom State, the Electoral Officer for Ika Local Government Area and the Returning Officer for Ika Local Government Area as his witnesses. The petitioner/appellant called three witnesses and also testified. At the conclusion of hearing, the Election tribunal delivered a reserved ruling in which it found as a fact that the result of the election was declared on the 5th of December, 1998. It held that the election petition having been filed on the 21st of December, 1998, was filed out of time and was statute-barred pursuant to section 82 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. It consequently struck out the petition as being incompetent. Being dissatisfied with the ruling, the appellant brought this appeal to this court on five grounds of appeal as follows:
(1) The judgment of the honourable tribunal is against the weight of evidence (There were no particulars supplied).
(2) The honourable tribunal erred in law in rejecting and/or refusing to attach weight to Exhibit 6 simply because the press interview which resulted in Exhibit 6 was conducted at No. 62 Nkpa Line, Uyo, outside the office of the petitioner/appellant. (Particulars of error were supplied),
(3) The tribunal erred in law in holding that the presumption of regularity in favour of Exhibits ‘1’ and ‘1A’ was not rebutted.
(Particulars of error were supplied).
(4) The tribunal erred in law in failing to consider the uncontradicted affidavit evidence of the petitioner/appellant that he actually presented the petition on Friday 15/12/98 when it was assessed and the money deposited but no receipt was issued until Monday, 21/12/98, as the cashier had run out of receipt and this has occasioned miscarriage of justice.
(5) The tribunal erred in law in denying the petitioner/appellant his right of action in the very clouded circumstances of this case.”
(Particulars were supplied).
In accordance with the rules of this court, briefs of argument were filed and exchanged by the parties. The appellant in his brief of argument formulated three issues. namely:
(1) Whether the presumption of regularity in favour of Exhibits ‘1’ and ‘1A’ was not dislodged in this case.
(2) Whether the tribunal was in the circumstances of this case, right to strike out the petitioner as being time barred.
(3) Whether the mere fact that the press interview which resulted in Exhibit 6 was conducted at No. 62 Nkpa Line, Uyo and not in Ika Local Government has deprived it of evidential value.
The 1st respondent on his part framed only one issue in his brief of argument, which issue is:
Whether in the circumstances of this case, the Election Tribunal had jurisdiction to adjudicate on the petition filed on the 21st of December, 1998 against an election whose result was declared on the 5th of December, 1998.
Also the 2nd to 4th respondents filed a joint brief of argument and framed one issue to wit:
Whether the petition No. LGET/AK31/98 filed on the 21st December, 1998 complied with the mandatory provision of section 82 of Decree No. 36 of 1998, if not, whether the Local Government Election Tribunal was right in striking out the petition.
At the hearing of the appeal the learned counsel for the parties relied on and adopted their briefs of argument and made oral submissions in furtherance thereto. The learned counsel for the appellant in his submission stressed on the issue of the date of filing the election petition. He referred to paragraph 8 of the counter-affidavit on the date the appellant deposited money with the Registry (Cash Office) of the tribunal for the filing of the petition to be Friday, 18th December, 1998, when the filing fee for the petition was assessed, but was not paid for as the Registry had run out of receipts. It was not until Monday 21st of December, 1998, when the receipt was issued to the appellant. The learned counsel contended that the non-issuance or the receipt in the circumstances or the case should not be visited on the petitioner/appellant as he had no control over the Registry of the court. He cited the case of Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387 at 391. He submitted that the deposit of the money for the filing of the petition on 18/12/98, after the same was July assessed was sufficient compliance with all that the petitioner/appellant was required to do. The learned counsel for the 1st respondent countered the submission of the appellant’s counsel on this issue by submitting that the appellant did not give oral evidence of this fact and did not call the registrar of the tribunal who collected the deposited money to testify on his behalf. He insisted that the only evidence about filing the petition was the receipt for the payment dated 21st December, 1998. He submitted that the affidavits with which evidence was led in his proceedings amounted to pleadings and it is settled law that averments in a pleading on which no evidence is led is deemed abandoned and cited Uwegba v. A.C. Bendel  (1986) 1 NWLR (Pt.16) 303. He also submitted that section 82 of Decree No. 36 of 1998 which provides that an election petition shall be presented within fourteen days from the date on which the result of the election is declared is a mandatory provision and it admits of no discretion and where as in this case the petition was filed outside the time allowed by the Decree, the Election Tribunal had no jurisdiction to try it and was right in striking it out. He referred to Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587.
After carefully considering the issues posited for the determination of this appeal, it is my view that based on the facts and circumstances of this case, the only issue for the determination of this appeal is whether the Election Tribunal was right to have struck not the petition as being time barred. For the determination of this issue it is vitally important to consider the following:
(i) The date of the election in question.
(ii) The law of the declaration of the result of the election
(iii) The date of filing the election petition by the appellant challenging the return of the 1st respondent as the winner.
As for the date of the election, it is common ground that the election in this case was held or conducted until 5th of December, 1998. That being so, therefore, there is no issue of misconception by any of the parties about the date of holding the election. However, in my view, the date of holding an election may not be the date of the declaration of the result of the election as this may depend on logistical reasons. Section 82 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 provides thus:
“An election petition under this Decree shall be presented within fourteen days from the date on which the result of the election is declared,”
It is trite to argue that this provision is mandatory and non-compliance with it will result in the nullification of an election petition presented outside the time limited in this Decree. The question therefore is, on what date was the result of the election in 4uestion in this case declared? This is the crux of the matter. The appellant holds strongly that the result was declared or announced on the 8th of December, 1998. On the other hand, the respondents hold that the election result was declared on the 5th of December, 1998. Now, having regard to the facts before the Election Tribunal which held a hearing to determine the date of the declaration of the result, which of the two opposing views will this court accept. At page 9 of the well considered ruling of the tribunal on the 3rd of February, 1999 the tribunal found as a fact that the result of the election was declared on the 5th of December, 1998. This finding in my view has sealed the dispute as to the date when the election result was declared. Where a court of trial has evaluated the evidence and appraised the facts, it is not the business of a court or appeal to substitute its own views for those of the tribunal court unless the finding of facts arc perverse. Akinloye & Anors. v. Eyilola & Ors. (1968) NMLR 92 at page 95 per Coker J.S.C., Fabumiyi & Ors. v. Obaje & Ors. (1968) NMLR 242 at 247 (Supreme Court), Maduekwe v. Okoroafor (1992) 9 NWLR (Pt.263) 69 at page 83. The finding of fact in this issue by the tribunal cannot be said to be perverse or arbitrary, not based on the evidence before it. Even then, the issue is being made as to whether declaration and announcement or publication of the election result are the same thing. After reading paragraphs 32 and 39 of Schedule 4 to the Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 or 1998, I am of the calm view that declaration on the one hand and publication or announcement on the other, of the election result are not the same or mutually interchangeable exercise. Here the declaration of the result of the election is the statutory duty of the returning officer who declares the winner at the last collation centre for the ward or the constituency where the result of the election is declared. But the announcement or publication of the result of the election is another kettle of fish. This exercise is performed by the Resident Electoral Commissioner or the Electoral Officer by posting a notice at the State or Local Government Area Office of the Commission. Therefore, in my view. Exhibit “1” i.e.. Form EC.8E, signed by the Returning Officer on 5/12/98 is the declaration of the result of the election based on Exhibit “1A” i.e.. Form EC.8C, the summary of result from the wards signed by the Returning Officer and party agent on the same 5/12/98. On the other hand, Exhibit II, the press release, dated 8/12/98 and signed by one Bassey Ekanem who is said to be a public relations officer in the office of the Resident Electoral Commissioner, is not the declaration of the election result. The argument of the appellant’s counsel to the contrary on this issue fails.
As for the date of tiling the election petition, the submission of the learned counsel for the appellant is wholly misconceived. In law, there is only one date as to when a process is filed in the registry of the court or tribunal as the case may be. There cannot be two dates on a document or process indicating when it is filed in the court. That is a document or process cannot bear two separate dates as the dates of filing in the court. A document or process is only properly filed in the court when it is presented to the registrar, assessed for the tiling fee, the fee is paid and receipt is issued by the court official in-charge. The argument by the learned counsel for the appellant that the riling fee was deposited on 18/12/98 after the assessment, while payment “as made on 21/12/98 when receipt was available does not attract me. In the first place, there is no evidence at the hearing before the tribunal, called by the appellant to corroborate his paragraph 8 or his counter-affidavit evidence that the petition was actually assessed and paid for on 18/12/98, but the registry ran out of receipt which could only be issued on 21/12/98. He did not call the registrar or secretary of the tribunal to confirm this deposition of his. In the second place, if the payment of 18/12/98 was a deposit until a receipt was available to be issued for it as the tiling fee as submitted by the appellant’s counsel, such was not stated by the registrar of the tribunal in the document titled “Receipt of Petition” on which the said assessment was entered or recorded, signed and dated by the rcgistrar on 21/12198. In fact, the document titled “Receipt of Petition” at page 1 of the record of proceedings is quite clear on its face that the registrar received the petition of the appellant on 21/12/98, and it was on that date that it was paid for and receipt was issued.
Furthermore, by Exhibit “A”, the revenue collectors receipt, dated 21/12/98, which this court received from the learned counsel for the appellant at the hearing, it is quite clear that the petition was filed on 21/12/98 and paid for. I cannot ignore this fact. The presentation of election petition to the registrar of the tribunal and payment of the requisite riling fees constitute the filing or an election petition. See paragraph 8(1) of Schedule 5 to Decree No. 36 of 1998 aforesaid. The tribunal found as a fact that the election petition was filed on the 21st December, 1998, and I agree with that finding. Having found as a fact that the date of the declaration of the result of the election was on the 5th December, 1998 and the date of the filing or presentation of the election petition was on the 21st December, 1998, the question is whether the election petition was filed in accordance with section 82 of Decree No. 36 of 1998. My answer is in the negative. Indeed there was no compliance with section 82 by the appellant. The result therefore is that the election petition was incompetent having been filed or presented in derogation from section 82 of the Decree. I agree with the tribunal that the election petition was time-barred and the tribunal lacked the competence to adjudicate over it. In my view, the election petition was rightly struck out.
In the final result therefore, I find no merit in this appeal. I hereby dismiss it with cost assessed at N3,000.00 to the 1st respondent and the sum of N2,000.00 to the 2nd to 4th respondents.
Other Citations: (1999)LCN/0483(CA)
