Yekini Olanipekun & Anor. V. Sulaiman Maito & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
PIUS OLAYIWOLA ADEREMI, J.C.A.
The 1st Petitioner (hereinafter referred to as the 1st appellant was a candidate for the bye-election into the Ondo state House of Assembly. He contested under the umbrella of the Alliance for Democracy, the 2nd Petitioner (hereinafter referred to as the 2nd appellant on the 26th of November 2005 in Akoko North West Local Government Constituency I. The 1st respondent who also contested the same election under the cover of the People’s Democratic Party, the 2nd respondent was returned as the winner by the Independent National electoral Commission (INEC) having, according to INEC, scored 5210 votes as against the votes of 1st Petitioner put at 3460 votes. Other contestants in the said bye election were L.O. Oyewole under NDP; he was said to have scored 9 (nine) votes; while Oloruntoba A.O. who contested under A.A. scored 79 (seventy-nine) votes. Dissatisfied with the result of the election, the appellant challenged the election before The National Assembly, Governor and Legislative Houses Election Petition Tribunal sitting at Akure, Ondo state.
The pleadings filed and exchanged among the parties are (1) petition dated 22nd December 2005 (2) 1st and 2nd respondents reply dated 8th February 2006, (3) petitioners/appellants reply to the 1st and 2nd respondents’ reply dated 20th February 2006 and 3rd – 41st respondents’ reply dated 20th February 2006.
After disposing some notices of preliminary objection, the substantive petition proceeded to hearing at the end of which in a considered judgment delivered of the 6th of April 2006 the lower Tribunal struck out the petition. In so doing, the lower Tribunal held inter alia: –
“Having held that the petition before the Tribunal was filed on 30/1/06, it is obviously outside the 30 days period allowed by the Act i.e. Section 132. The effect is that the petition is statute/time barred…….
As overwhelming as the evidence may seem, we can only say it is also unfortunate that no matter how well the case was presented, looking into whether the petition would have succeeded or not would be a mere academic exercise and an exercise in futility. The question of jurisdiction or lack of it is a serious one there is no compromise.
In conclusion, having held that the petition was irregularly filed and time barred, in consequence we hold that the petition is incompetent and the tribunal lacked the jurisdiction to entertain or hear same, no matter how well presented. There was nothing for the tribunal to adjudicate. The entire exercise of trial was an exercise in futility. In the present situation an order for striking out or dismissal has the same effect.
There is nothing for this tribunal to do than to strike out the petition. This petition is accordingly struck out.”
Being dissatisfied with the said judgment, the Petitioners/appellants appealed to this court by a Notice of Appeal dated 19th April 2006, which contains four grounds of appeal. Distilled from the aforementioned grounds of appeal are four issues which as set out in the appellants’ brief of argument I are in the following terms: –
(1) Was the petition regularly filed and within the competence and jurisdiction of the Tribunal to hear and determine?
(2) In the absence of the Constitution of the Membership of the Tribunal was the presentation for filing receipt and onward transfer of the petition by the High Court Registry and subsequent forwarding to the secretary of the Tribunal on 31/10/2006 valid, regular and in conformity with the expectation of the relevant laws?
(3) If as observed by the Tribunal the petitioners “are not to blame for the underassessment or lateness in payment” (assuming but not conceding that there was underassessment and lateness) was the tribunal then just in the circumstances to strike out a meritorious petition proved with uncontested evidence at the Tribunal because as if (sic) claimed it lacked jurisdiction?
(4) Were the respondent not barred from raising objection to the competence of the petition at the end of hearing?
The 1st respondent incorporated into his brief of argument dated and filed on 23rd June 2006 preliminary objection as to the competency of four grounds of appeal formulated by the appellant and identified only one issue for determination and as set out in his said brief of argument, it is in the following terms: –
“Whether in view of the provisions of section 132 and paragraphs 1, 2, 3 and 36 of the First schedule to the Electoral Act, 2002, there was a valid petition before the lower tribunal over which it ought to have adjudicated upon.”
The 3rd – 41st respondents for their part raised two issues for determination: and as set out in their brief they are as follows: –
“(1) Was the issue of the lack of competence of the Tribunal to hear the petition properly raised at the lower tribunal; and
(2) Was the tribunal right in declining jurisdiction and striking out the petition considering all the facts and circumstances of this case?”
When this appeal came before us for argument on the 28th of September 2006 Dr. Abayomi, learned Counsel for the appellants, referred to, adopted and relied on his clients’ brief of argument deemed to be properly filed and served on the 28th of September 2006; he emphasised the argument as it relates to issues Nos. 1 and 2 on pages 6 to 9 of the brief and submitted that there was no irregularity in the processing of the petition in the registry of the lower tribunal. He urged that the appeal be allowed.
Mr. Olatubora, learned Counsel for the 1st and 2nd respondents referred to, adopted, and relied on the 1st respondent’s brief of argument filed on the 23rd of June 2006. In expatiating on the said brief, learned Counsel submitted that the Election Tribunal that is capable of entertaining an election petition arising from a House of Assembly is the one envisaged by section 131 (2) (b) of the electoral Act 2002; he further submitted that the Electoral tribunal in Akure before whom they appeared was illegally constituted in violation of the law; he referred to page 14 of the record of proceeding and pointed out that there are two endorsement of payment of fees in the registry; he referred to the evidence of RW1 and RW2 on the issue of filing of the petition; paragraph 1 to the 1st Schedule to the electoral Act – for the definition of “Registry”; he further went on to submit that there was under payment of filing fees on 23/12/2005 by the petitioners/appellant; while paragraph 2 of the 1st Schedule to the electoral Act stipulates that a petitioner in an election petition must deposit with the Registry not less than N15,000.00 as security for cost only N3,000.00 was paid; he concluded his argument by submitting that there was no petition nor was there a panel properly constituted; he urged that the appeal be dismissed. Mrs. Saseyi, learned counsel for the 3rd to 41st respondents relied on her clients’ brief of argument and urged that the appeal be allowed but that an order for a fresh election be made.
On points of law only Dr. Abayomi while urging that this court can and ought to declare the results of the election held on the validly cast votes, he submitted that issue of illegality of the Tribunal was never raised before the lower tribunal nor was the issue of the constitution of the lower tribunal ever challenged before that tribunal and while referring to the 1st schedule, paragraph 49 sub-section 2 and, he finally urged this Court to reverse the decision of the lower tribunal and declare the 1st appellant as duly elected.
On the preliminary objection as to the grounds of appeal, learned counsel while reciting the decision in (1) HAMBA v. HUEZE (2001) 2 S.C.C. 26 at 34, (2)ADEROUNMI v. OLOWU (2000) 4 NWLR PAGE 253 and (3) ALIE v. UDAGBAE GBE (1995) 6 NWLR (PT. ) 423 he finally submitted that there was a gross misunderstanding of the nature of the grounds; contending that a careful reading of them (the grounds of appeal) will show that they are pure grounds of law.
I shall start the consideration of this appeal by treating the preliminary objection as to the competence or validity of grounds of appeal. I must quickly bear in mind that the judgment complained was a final one as opposed to an interlocutory one.
Again, the only evidence before the lower tribunal was that led by the petitioners/appellants.
The grounds of appeal less their particulars are thus: –
“GROUND 1
The Honourable Election Petition Tribunal erred and misdirected itself when instead of giving judgment to the petitioner on the uncontroverted evidence presented by the petitioners in the petition held as follows: –
“In conclusion, having held that the petition was irregularly filed and time-barred, in consequence we hold that the petition is incompetent and the tribunal lacked the jurisdiction to entertain or hear same, no matter how well presented.”
GROUND 2
The honourable tribunal erred and misdirected itself when it held inter alia: –
“By these definitions therefore the petition has two options for the purposes of filing a petition under the Act with either the secretary of the Tribunal or the Registrar of the Court of Appeal.”
GROUND 3
The tribunal erred and misdirected itself when it struck out the Petition even considering the rationale of its decision especially having observed inter alia at page 29 of judgment: –
“It is an unfortunate situation more especially where the petitioners are not to blame for the underassessment or lateness in payment of the necessary statutory fees. It is the evidence that the Secretary did not report until 30/1/06 when the assessment was done. It may seem absurd, but the provisions of paragraphs 33 and 36 of the 1st Schedule are clear and unambiguous as well as Section 132 of the Act.”
GROUND 4
The Court erred and misdirected itself when instead of dismissing the objection of the 1st and 2nd respondents upheld it when:
(a) It was not pleaded or raised in their defence.
(b) It was not raised timeously before making defence or taking further steps in the proceedings.
(c) When it related merely to technical competence instead as wrongly accepted by the court jurisdiction.
(d) When the tribunal had earlier held that it had jurisdiction against the objection of the 1st and 2nd respondents
(e) When the objection against the proven violation was not meritorious or important.”
As I have said, it is the above grounds of appeal that are attacked, on the ground that they are incompetent. Generally in civil matters, where the judgment appealed against is one that is final in nature; an appellant can incorporate into his Notice of Appeal grounds of law and mixed facts or grounds of facts alone – and provided the Notice of Appeal is filed in the Registry of the court within the time prescribed an attack on such grounds will be a futile exercise particularly when the purport of each ground is clear. See (1) OJEMEN & ORS v. R.R.R MOMODU (1983) 3 S.C.1 and (2) ALAMIEYESIEGHA v. C.J.N. (2005) 1 N.W.L.R. (PT.906) 60.
However in an interlocutory matter where the substantive case has not come to an end, an aggrieved party by the ruling delivered can file his Notice of Appeal, as of right, if the grounds are purely of law only; but where the grounds of appeal in an interlocutory appeal are of mixed law and facts or facts alone, leave of Court must be sought and obtained before such a Notice of Appeal is filed. That such Notice of Appeal must be filed within the time stipulated by the rules of Court and even where such a Notice of Appeal is filed within the time prescribed but it carries grounds of appeal which require the leave of court and such leave was not obtained, that Notice of Appeal is incompetent. See (1) IGIDI v. IGBA (1999) 6 S.C. (PT. 1) 14
(2) ATAT v. OKORO (1991) 7 NWLR (PT.203) 260 AND
(3) ABIDOYE v. ALAWODE (2001) 6 NWLR (PT.709) 463.
It therefore follows that no appeal can stand if there is no valid Notice of Appeal to animate and sustain it. The trend nowadays is to examine the wordings of any particular ground of appeal and see what is its purport. If a ground of appeal questions the exercise of discretion by a lower court such a ground of appeal is of fact or at best, a ground of mixed law and facts. But if a ground of appeal shows a misunderstanding by the lower court of the law applicable or a misapplication of the law to facts already proved or admitted such a ground of appeal is one of law, simpliciter: See (1) OGBECHIE v. ONOCHE (1986) 2 NWLR (PT.23) 484, (2) METAL CONST. (W.A.) LTD v. MIGLIORE (1990) 1 NWLR (PT.126) 299 and (3) P.N. UDAH TRADING CO. LTD v. ABERE & Anor (2001) 11 N.W.L.R (PT. 723) 114.
It is no longer necessary to quote the particulars upon which a ground of law is predicated if, ex facie, it is clear that the ground is one of law simpliciter. See OGBECHIE case supra. I have had a careful reading of the grounds of appeal upon which this appeal is founded each of those grounds is questioning the application by the court below of laws to accepted facts, in order words, each of them is saying no more than that there is a misunderstanding by the lower court of the law applicable or a misapplication of the law to the admitted facts in this matter. Each of them is, in my judgment, valid. The preliminary objection is consequently dismissed as to order otherwise will amount to over-straining the words employed in concluding the said grounds of appeal and that will be doing injustice.
Issues Nos. 1 and 2 set out in the appellants’ brief, the only issue identified by the 1st respondent and issues Nos. 1 and 2 in the 3rd – 41st respondents’ brief all centre on issue of jurisdiction. It has been judicially decided that issue of jurisdiction is the threshold of adjudication; it is so fundamental that when it is raised, a court must pause and consider whether it (the court) is clothed with any legal power to adjudicate in the matter brought before it. So important is the issue of jurisdiction that it can be raised at any stage of the proceedings, even for the first time at the appellate level, suffice it to say that a court which includes an appellate court, can raise it suo motu. See (1) SULE v. NIGERIAN COTTON BOARD (1985) 6 S.C. 62, (2) TIMITIMI & ORS v. AMABEBE 14 W.A.C.A. 374, (3) OLORIODE v. OYEBI (1984) 1 S.C. N.L.R 390 and (4) PELFACO LTD v. NAOS (1992) 50 NWLR (PT.524) 222.
The fundamental issue on which this appeal therefore rests is whether as the petition stood before the lower tribunal, did that adjudicating body have the legal right to embark on the hearing and the determination of the petition.
The appellants in their brief of argument submitted that under Section 285 (2) of the Constitution at least, a Governorship and Legislatives Houses Election Tribunal is established in each of the states of the Federation. That tribunal, it was further submitted has a perpetual existence as distinct from perpetual membership; reference was made to section 131 of the Constitution under Section 132 of the electoral Act, 2002, it was further submitted that an election petition must be presented within 30 days from the date the result of the election was declared. The result having been declared on 28th November 2005, a valid petition must be presented not later than 29th December 2005.
The petition in this case, which was presented on the 23rd of December 2005 having been presented within the stipulated time is valid, it was further submitted.
The bone of contention in this appeal is the variation in the filing fees paid and their timing. While the first assessment of N3,330.00 was paid instantly on 23/12/05 that is the date the petition was presented; upon the constitution of the tribunal a second assessment of N13, 000.00 was instantly paid on 30/1/2006. They again argued that having paid the amount assessed by the appropriate authority – the Tribunal, the appellants must be taken to have discharged their own duties and they should not be blamed for the mistakes of others, particularly the Tribunal which is the body that has exclusive right to determine what fees to pay, the decision in REMI v. SUNDAY (1999) 8 NWLR (PT. 613/92 was relied upon. On issue NO.3, it was their argument that having presented the petition within the prescribed statutory period of course with the required fees paid, the petition must be regarded as duly presented the decisions in OZOBIA VS. and OLANIYONU VS. AWAH (1989) 5 NWLR (PT.122) 493 where founded upon. On issue No. 4 all the appellants are expressing a grouse against is the permission granted to the 1st and 2nd respondents to raise a preliminary objection after evidence had been concluded; that, they say, is a grave manifestation of injustice; the decision in KURFI VS. MUHAMMED (1993) 2 NWLR (PT.277) 602 was prayed in aid of this submission.
For his part, the 1st respondent’s main argument is that having violated the provision of section 132 paras. 1,2,3 and 36 of the 1st Schedule to the electoral Act 2002, there was no valid petition filed at the registry of the lower tribunal within 30 days, from the date of the declaration of the results of the bye-election held on 26th November 2005 in Akoko North west State Constituency 1 of Ondo state – this was hinged on the non-payment of the security for cost within the prescribed period; issue of non-payment of the appropriate fees is no matter of technicality; it strikes at the very foundation of the petition it was contended and many authorities the like of MODIBBO VS. HARUNA (2004) 1 E PR 64 were relied upon. It was finally urged on this court that the appeal be dismissed. The 3rd to the 41st respondents in their brief that the 1st and 2nd respondent having failed to raise the issue of lack of competence to hear the petition due to the lateness in presenting the petition and filing in wrong forum in any of their pleadings, they are now estopped from raising same particularly when they voluntarily led no evidence to counter the case of petitioners/appellants before the lower tribunal; they placed reliance on the decision in (1)JAMES v. MID MOTORS (1978) 11-12 S.C. 31 and (2) DZENGWE v. GBISHE (1985) 2 NWLR (PT.8) 528. They also argued that non-payment of the correct filing fees if not traceable to the petitioner, he (petitioner) cannot be held responsible. They finally urged that the appeal be allowed pursuant to section 16 of the court of Appeal Act and order a repeat of election.
The whole gamut of this appeal centers on non-payment of the filing fees within the prescribed time. The law is now well settled that payment of the correct fees for reliefs claimed is a condition precedent for the entertainment of the case brought before the court for adjudication. Therefore, non-payment of the correct fees is fatal to the case unless exempted by the rules of Court. See ONWUGBUFOR & ORS v. OKOYE & ORS (1996) 1 NWLR (PT.424) 252 and (2) OKPALA v. IKU (1993) 8 NWLR (PT.309) 1.
So also it is mandatory that by the provision of section 132 of the electoral Act 2002, an election petition must be filed within thirty days from the date the result of the election is declared; a valid presentation of the petition presumes payment of the correct filing fees within the prescribed period.
Section 36 (1) of the 1st Schedule to the electoral Act 2002 stipulated: –
“The fee payable on the presentation of an election petition shall not be less than N1,000.00.”
Section 2 (1) (2) and 3 to the said 1st schedule provides:-
Section 2(1)
“At the time of presenting an election petition, the petitioner shall give security for all costs which may become payable by him to a witness summoned on his behalf or to a respondent.”
Section 2(2)
“The security shall be of such amount not less than N5, 000.00 as the Tribunal or court may order and shall be given by depositing the amount with the Tribunal or court.”
Section 2(3)
“Where two or three persons join in an election petition, a deposit as ordered under sub-paragraph (2) of this paragraph of this Schedule shall be sufficient.”
Without resorting to a strained interpretation of their words, it is clear to me that the determination of the exact sum to be paid as security rests squarely with the officials of the Tribunal or the Court as the case may be.
It is not in contention that at the presentation of the petition on the 23rd of December 2005, which is within the time prescribed for filing, the petitioners paid the sum of N3, 330.00 assessed by the officials designated to assess the fees payable. Of course, the High Court Registry, Akure was used as the collecting agent. On the 30th of January 2006, a date outside the period allowed for the presentation of an election petition, RW2, One Celestina Omavuezi called by the 1st and 2nd Respondent testified that she issued the Notice of Presentation of Petition on that day; she tendered the process as Exhibit R2 while on Exhibit R1, the petition earlier tendered by RW1 – Olugbenga Shodemide – an official of the Ondo State Judiciary, was also handed over to her on 30/1/06. The confirmed that the second assessment of N13, 000.00 in Exhibit R1 was done by her and that the assessed sum of N13,000.00 was immediately paid on that day by the petitioners vide receipt No. 2004205901. It is also common ground that no objection was taken against the validity of the petition as a preliminary point before the lower tribunal or at any before that tribunal. Our attention has been drawn to the decision in OLANIYONU supra; the facts of that case are not on all fours with the facts of the present case; there, the petition was presented outside the statutory period allowed, the security for cost was not paid; and objection to the validity of the petition was taken by way of preliminary objection. That case is therefore not relevant for the consideration of this appeal. As pointed out by me, no petitioner has the right to determine what filing fee or deposit for security cost shall be paid, the ultimate decision on this rest squarely on the officials of the respective court or tribunal. If the officials of court, as in the instant case, failed to do a proper assessment of the fees payable; must an innocent litigant, in this case the petitioners, be made, liable for the delinquency of the officials? I think not. It has long been a standing principle of true justice that no one shall be punished for the wrong committed by another person particularly when he did not instigate nor cause the wrong doing; the maxim is NEMO PUNITURPRO ALIENO DELICTO.
Again by not taking this point as a preliminary issue in the lower tribunal, the 1st and 2nd respondent must be taken to have waived their right to so do. This is so, because the provision relating to the payment of court fees or security cost inures to the benefit of a respondent to an election petition. If a person is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit, but he either neglects to exercise his right to the benefit ab initio, he must be taken to have waived that right. By participating in the proceedings from the beginning without taking the objection, the 1st and 2nd respondents assuming that the underpayment of the fees as opposed to payment of certain fee is that of the petitioners, by their conduct have led the petitioners to believe that the strict rights emanating from the under payment’ would not be insisted upon. The (1st and 2nd respondents) would therefore not, in equity and law, be allowed afterwards to insist on the strict rights; it would be most inequitable for them to so do. See ARIORI & Ors vs. ELEMO & ORS (1983) 1 S.C. 13.
It was again, argued in the 1st respondent’s brief that the petition filed on the 23rd of December 2005 in the Ondo state High Court Registry was not the type of election petition envisaged by the provision of section 132 paragraphs 1,2,3(4) and 36 of the electoral Act, 2002; a valid petition, according to them, is the one presented to the Secretary of the Tribunal. It must always be remembered that the Constitution of the Electoral Tribunal’ and its location and other logistics to facilitate the take off of election cases is under the exclusive control of the President of the Court of Appeal. Where he (the President) directs that the filing of a petition be done in the interim, in the Registry of a State High Court, that is the only reasonable option that he could take then. Nobody can query him and such an act, cannot be the foundation on which the blame of the petitioner can properly be hinged. With due respect, the argument of the 1st and 2nd respondents in this wise is tenuous. I only need to add that a judge must always refrain from construing the provisions of an act or a rule of court in a manner that will result in absurdity.
Issues Nos. 1 and 2 on the appellants’ brief are answered in the affirmative; issue No. 3 thereof is answered in the negative; while I resolve issue No. 4 in favour of the appellant. The, only issue raised for determination by the 1st respondent is, consequent upon all I have been saying supra, answered in the affirmative. The two issues raised in the brief of the 3rd to 41st respondents are having regard to what I have said supra answered in the negative.
In concluding their arguments, the appellants in their brief urged that in view of the findings of the lower tribunal that the petitioners/appellants have proved their case, judgment ought to be entered in their favour; they therefore urge this court to return the 1st respondent as having been duly elected. The 3rd to 41st addition urged that an order for a repeat of the election be made.
Of course, the 1st and 2nd respondent prayed that the appeal be respondents while urging that the appeal be allowed they in dismissed. The evidence remains unchallenged. Indeed, the lower tribunal pronounced that the evidence led by the petitioners was overwhelming. An appeal is a re-hearing of the case. An unchallenged evidence must be accepted and acted upon by a trial judge. Had the lower tribunal discharged its duty according to law, it would have found in favour of the petitioners. We note that relief No 1 is devoid of any proof and infact, it was later withdrawn. In view of the fact that reliefs 3 and 4 have support in the evidence led; this appeal is hereby allowed. Judgment of the court below striking out the petition is hereby set aside. In its place judgment is hereby entered in favour of the petitioners/appellants in the following terms:-
(1) It is hereby declared that the 1st respondent (Sulaiman Maito) was not duly elected or returned by a majority of lawful votes cast at the election held on the 26th November 2005, for the vacant position of the Akoko North West Constituency 1 of the Ondo State House of Assembly.
(2) It is hereby ordered that the 1st Petitioner, (Yekini Olanipekun) was duly elected returned and declared as the winner of the said election held on the 26th November 2005 for the vacant position of the Akoko North West Constituency 1 of the Ondo state House of Assembly having won the majority of the lawful votes cast at the bye-election.
The appellants are entitled to the cost of this appeal, which assess and adjudge in their favour at N5, 000.00 against the 1st and 2nd respondents only.
Other Citations: (2006)LCN/2079(CA)
