Mr. Blessing Agbebaku V. Felix Olushola Unuigbe & Ors. (2009)
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CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.
The Appellants filed this appeal against the judgment of the Governorship and Legislative Houses Election Tribunal sitting in Benin Edo State delivered on the 7th of April, 2008 by their Lordships Hon. Justice N. C. Umeadi, Hon. Justice A. S. Tahir, Hon. Justice O. Ogbuinya and Hon. Justice S.M. Anjor. The Appellant in Appeal No.CA/B/EPT/129/08, Mr. Blessing Agbebaku was the 1st Respondent at the trial tribunal. He was the Candidate of the Peoples Democratic Party (PDP) for the Owan West Constituency in Edo State held on the 14/4/07.
The 1st Respondent in the same appeal Felix Olushola Unuigbe was the Candidate of the 2nd Respondent, the Action Congress (A.C.). The 3rd – 5th Respondents in the Appeal were the Independent National Electoral Commission, (INEC) and its officials whose responsibility it was to conduct the said election.
The 6th Respondent was the Peoples Democratic Party. At the Conclusion of the election, the Appellant was declared victorious and returned as elected. Dissatisfied with the declaration and Return, the 1st & 2nd Respondents, as Petitioners in the lower tribunal, commenced proceedings by way of an election petition by which they questioned the election on two grounds namely:
- “AN ORDER invalidating the 13,990 votes or such part of the votes scored or allocated to the 1st and 2nd Respondents by the 3rd, 4th and 5th Respondents as may be found to be invalid in Owan West Constituency election held on 14/4/07 on the ground of corrupt practices or non compliance with the provisions of the Election act, 2006.
- AN ORDER declaring the Petitioners as validly elected and Returned as winners of the Owan West Constituency election of Edo State House of Assembly conducted on 14/4/07 having scored the highest number of lawful votes of the total valid votes Cast in the said election after removing the invalid votes allegedly scored or allocated to the 1st and 2nd Respondents.”
The Respondents filed their various replies to the Petition. Thereafter, the petition proceeded to trial, at the Conclusion of which the lower tribunal in its Judgment at page 427 of the record of appeal held that the Petitioners had proved their case.
“Overall, going by the reasons marshaled in this Judgment, we hold that the Petitioners Petition flies high and their prayers gramed. Accordingly, we hereby order:
(a) that the 1st Petitioner, Felix Olushola Unuigbe, won the election to the House of Assembly of Edo State for Owan West state Constituency held on 14th April, 2007.
(b) that the 1st Petitioner, Felix Olushola Unuigbe, be and is hereby declared duly elected and Returned as the elected representative for Owan West Local Government Area in the Edo State House of Assembly;
(c) that the Certificate of Return issued to the 1st Respondent Blessing Agbebaku, by the 3rd Respondent (INEC) be withdrawn from him forth with.
(d) . that the 3rd Respondent, INEC issues the 1st Petitioner, Felix Olushola Unuigbe, with a Certificate of Return forth with; and
(e) that the parties bear their respective costs of prosecuting this petition.”
It then went ahead to nullify the election and Return of the Appellant (1st Respondent at the trial tribunal) and declared the 1st Respondent (1st Petitioner at the lower tribunal) as winner. Dissatisfied with the Judgment, the Appellant appealed to this Court. From the Appellants Grounds of Appeal, they distilled Five issues for determination as follows:
- Whether the learned Chairman and members of the tribunal were right in holding that they can suo motu examine and utilize all the exhibits tendered in evidence in resolving any issue that arises while determining the Petition, considering the manner in which the exhibits were tendered and evidence led thereon. (Encompassing Grounds 1, 13 and 19 of the Grounds of Appeal.)
- Whether from the state of pleadings and witnesses dispositions, the learned Chairman and members of the tribunal were right to have proceeded to determine the allegation of non-compliance having held that the 1st & 2nd Respondents failed to prove the allegation of corrupt practice. (Encompassing Grounds 2, 3, 6 and 7 of the Grounds of Appeal.)
- Whether the facts relied upon by the Chairman and members of the tribunal were pleaded in law and if pleaded evidence were led thereon (Encompassing Grounds 4, 5, 8, 9, 10 and 11 of the Grounds of Appeal.)
- Whether the trial tribunal was right in law in declaring the 1st Respondent the winner of 14th April, 2007 House of Assembly election for Owan West Constituency of Edo State. (Encompassing grounds 12, 14, 15, 16, 17, 18 and 20 of the Grounds of Appeal.)
- Whether having regards to the provisions of Section 141 of the Electoral Act 2006, the Petition filed by the 1st and 2nd Respondents was competent…”
The Peoples Democratic Party which was the 2nd Respondent at the lower Tribunal also appealed against the Judgment in appeal No.CA/B/EPT/130/08 and therein raised issues for determination.
The petitioners at the lower tribunal (1st and 2nd Respondents herein) as well as INEC, its officials and the 6th Respondent also filed their respective briefs;
Consequent upon the order of this Court, the two appeals were consolidated as one appeal. Issues were joined by parties and briefs were filed by Counsel.
Dr. Alex Izinyon (SAN) in his issue No.5 raised the issue of jurisdiction. Ricky Tarfar (SAN) for the 1st Respondent, A. Osarenkhoe for the 2nd Respondent, D. A. Alegbe for the 3rd – 5th Respondents adopted the issues formulated by the Appellant for determination.
The 2nd Respondent (Action Congress) which sponsored the 1st Respondent FELIX UNUIGBE as its Candidate raised a preliminary objection stating that the Appellant Blessing Agbebaku and the 6th Respondent Peoples Democratic Party were the same juristic persons for the purpose of the election held on the 14/4/07 and therefore would be acting in abuse of the Court process in lodging separate appeals.
In his reply urging this Court to dismiss the preliminary objection, Counsel to the Appellant, Peoples Democratic Party in Appeal No.CA/B/EPT/130/08, argued that Candidates and Political parties retain separate actual juristic personalities. He cited AMAECHI v. INEC & ORS. (2008) 5 NWLR (PT.1080) page 227.
I have considered arguments on both sides, and see no reason why the Appellant and the 6th Respondent cannot file separate appeals. The case of AMAECHI V. INEC supra has laid that argument to rest. The objection is misconceived and is hereby dismissed.
In the consideration of this appeal, I will adopt the issues identified by the Appellant’s Counsel already reproduced above. I will start with the issue dealing on Jurisdiction i.e. issue No.5 it reads:
“Whether having regards to the provision of Section 141 of the Electoral Act 2006, the Petition filed by the 1st and 2nd Respondents was competent.”
Jurisdiction is a threshold issue the life blood of adjudication in a Court of law which must be decided as soon as it is raised, and it may be raised at any stage of the proceedings and even on appeal. Where a Court lacks jurisdiction, no matter how well the trial was conducted, the trial would be a nullity. See CHIEF ELIGBE V. OMOKHAFE (2004) 12 SCNJ. Page 106 ELABANJO V. DAWODU (2006) 6 SCNJ. 204
The issue of jurisdiction is being tackled first despite the fact that it is the 5th and last issue distilled for determination. The disposal of this issue is bound to affect this appeal one way or the other. If the issue of jurisdiction is misconceived, I will proceed to deal with the other issues for determination. If on the other hand there is merit in the said issue, then it will serve no purpose resolving the other issues. Where an appeal is based on several grounds which include a ground raising issue challenging jurisdiction on a firm ground before the Court of appeal sitting as a final Court in Election Petition appeal, it is unnecessary to consider arguments and decide other issues raised in the appeal after dealing with the issue of Jurisdiction.
See ALHAJI BARI BUDO NUHU V. ALHAJI ISOLA ARE OGELE (2003) 12 SCNJ. 158. The case presented by the Appellants is that the 1st Appellant Blessing Agbebaku was declared winner on the 14/4/07, the day the election was held. The 1st Respondent Felix Onuigbe filed the Petition on the 14th of May, 2007 i.e. on the 31st day, and therefore strayed from the 30 days provided for under Section 141 of the Electoral Act 2006. They cited numerous authorities to drive home this point including
AKUME V. LIM (2008) 16 NWLR (PT. 1114) 490 at 502 Paragraph F – G.
ALATAHA V. ASIN (1999) 5 NWLR (PT.601) 32 at 44.
A.G KWARA STATE V. OLAWALE (1993) 1 NWLR (PT.272) 645.
ATTORNEY GENERAL OF ONDO STATE V. ATTORNEY GENERAL OF EKITI STATE (2001) 17 NWLR (PT.743) 706 at 756. ETC.
The 1st & 2nd Respondents on their part argued that since the last day of filing the Petition fell on a Sunday regarded as a work free day, they were within the law to have filed the Petition on Monday the 14th of May, 2007 as the next working day. They also cited authorities to buttress this stand including:
OWURU V. AWUSE (2004) 33 WRN 98 at 111.
YUSUF V. OBASANJO (2003) 50 WRN 1 at 44.
IYIRHARO V. USOH (1999) 4 NWLR (PT.592) 41 at 51.
NONYE V. ANY1CHE (1989) NWLR (PT.101) at 110.
AGBAI V. INEC & ORS (2008) 14 NWLR (PT.108) 417.
The said Section 141 of the Electoral Act 2006 provides thus:
“An Election Petition under this Act SHALL be presented WITHIN Thirty (30) days from the date the result of the Election is declared”.(underlining mine for emphasis.)
All the Counsel in this appeal conceded that the result was declared on the 14/4/07, hence the 1st & 2nd Respondents contended that since the last day fell on Sunday, a non working day, that the petition filed on the 14th of May, 2007 the following working day was well within the law.
After a very careful study and consideration of arguments and authorities relied upon by the parties, there is no doubt that the said election was declared on the 14th of April, 2007. It is also not in doubt that the 1st and 2nd Respondents filed their Petition at the lower tribunal on the 14th of May i.e. 31 days after the declaration of the said result. The question then is did the said Respondents act within the law by filing their petition 31 days rather then the thirty days provided for under Section 141 of the Electoral Act?
It should be noted that the operative words in Section 141 of the Electoral Act 2006 are “SHALL BE PRESENTED WITHIN 30 DAYS”. The word “WITHIN” in my humble view is very essential in the interpretation of the said Section 141. The Black’s Law Dictionary (6th Edition) Page 1602 defines the word WITHIN as “any time before, any time at or before, any time at the end of, or any time before the expiration of, any time not beyond, any time not exceeding, and any time not later than”.
I prefer to look at the said Section 141 in this perspective.
In OGBEBOR v. DANJUMA (2003) 15 NWLR (PT.843) 403 at 426
NNONYE v. ANYICHIE (1989) 2 NWLR (PT.101) at 117,
it was made clear that compliance with statutory provisions as to time within which to file an election petition is a fundamental pre-condition, a breach of which is incurable and failure to comply with the statutory provisions is fatal and in such a case the Court has no jurisdiction to entertain the petition.
Again, in ATTORNEY GENERAL OF ONDO STATE v. ATTORNEY GENERAL OF EKITI STATE (2001) 17 NWLR (PT.743) 706 at 756 Kutigi JSC (now CJN) stated:
“It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions (of an enactment) arc clear and unambiguous, effect must be given to them without resorting to any aid internal or external. It is the duty of the Court to interpret the words of lawmakers as used.”
It is my humble view that compliance with a statutory provision as to time of filing an election petition is a fundamental pre condition, a breach of which results in fatal consequences.
I also share the view that the provisions of the said Section 141 are very plain, clear and unambiguous and therefore does not require any aid whatsoever in its interpretation.
I am aware of the decision of this in CA/B/EPT/221/08 PATRICK IKHARAIALE & ANOR. V. THEOPHILUS OKOH & ORS, delivered on the 23rd of April, 2009, and other decisions of this Court on this issue. The facts and circumstances of that case are very similar to this.
I have therefore decided not to go into much details about arguments of Counsel and analysis on the issue of Jurisdiction and interpretation of Section 141 of the Electoral Act 2006 to avoid repetition. I have no reason or Justification what so ever to depart from that decision.
In the circumstance of this case, I hold that time began to run on the 14th of April, 2007, the day the result was declared, and that time ended on the 14th of May, 2007. The filing of the petition on the 14th of May, 2007, one day outside the statutory period has therefore resulted in unpleasant consequences on the Petitioner (1st Respondent herein). The Petition filed on the 14/5/07 having been filed on the 31st day has regrettably strayed outside the period stipulated by Section 141 of the Electoral Act 2006. The fact that the last day fell on a Sunday is no justification at all for this lapse. The delay in filing the petition in my view was unnecessary, most uncalled for, a very costly mistake that has turned out to be irreversible.
The Petition is statute barred and the said Section 141 does not permit or allow for extension of time.
If the Petition is statute barred, it means the lower tribunal lacked the competence to entertain the Petition.
The trial and the subsequent Judgment is an exercise in futility no matter how well Conducted.
The decision of the trial tribunal is a nullity as well as the consequential orders.
The Petition filed by Felix Olushola Unuigbe and The Action Congress as Petitioners (in the tribunal below) (1st & 2nd Respondents herein) on the 14th of May, 2007 having been declared incompetent is accordingly struck out.
There will be no order as to costs.
Other Citations: (2009)LCN/3369(CA)
