Aanena Elizabeth Jemitola V. Col. Akogun Tunde (Rtd.) & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

NWOSU-IHEME (Ph.D), J.C.A.

These consolidated appeals arose from the decision of the Edo State Governorship and Legislative houses Elections Petitions Tribunal NO.2. Election into the House of Representatives of the National Assembly of the Federal Republic of Nigeria held on 21st April, 2007.

The appellant herein Colonel Tunde Akogun (rtd.) was the candidate of the Peoples Democratic Party (PDP) for the Akoko-Edo Constituency of the Federal House of representatives at the aforesaid election. The 1st Respondent herein Aanena Elizabeth Jemitola was the candidate of the All Nigeria Peoples Party (ANPP).

After the election, the 2nd Respondent (INEC) declared the appellant as the duly returned and elected candidate of the Akoko-Edo Federal Constituency. The 1st Respondent was aggrieved by the declaration and return of the appellant. Hence she filed petition No. EDNA/EPT/8/07 to challenge the result of the election. Issues were duly joined by the parties to the petition and the matter went to trial. At the end of the trial the Tribunal held inter alia:-

“That the purported election and return of the 1st Respondent Col. Akogun Babatunde as a member representing Akoko-Edo Federal Constituency be and is hereby nullified on the ground that he was not duly elected by the majority of lawful votes cast. ”

See page 785 of the record of appeal.

The Appellant was dissatisfied with the decision of the Tribunal No.2 and therefore filed this appeal. The 2nd Respondent (INEC) was also dissatisfied with the nullification of the election. It also appealed the decision. Added to these 2 appeals, the 1st Respondent Cross Appealed against some of the findings of the lower Court.

In due course respective parties filed their respective briefs of argument. However before the appeals went to full hearing, learned Counsel to the Appellant, Dr. Izinyon SAN filed a motion on notice on 30th January, 2009, the motion sought for the following reliefs:-

1. AN ORDER granting leave to the Appellant/Applicant to amend the Notice of Appeal filed before this honourable Court by including an additional ground of appeal namely ground is as shown on the document attached hereto and marked as Exhibit ‘B’.
2. AN ORDER deeming the Amended Notice of Appeal attached hereto as Exhibit ‘C’ as properly filed and served, the requisite fees having been paid.
3. AN ORDER granting leave to the Appellant/Applicant to raise and argue fresh issue flowing from the said additional ground 15 of the Amended Notice of Appeal.
4. AN ORDER granting leave to the Appellant/Applicant to amend their Brief of Argument incorporating the issue flowing from the additional ground 15 of the Amended Notice of Appeal.
5. AN ORDER deeming as properly filed and served the Appellant/Applicant’s Amended Brief of Argument attached hereto and marked as Exhibit ‘D’, the requisite fees having been paid.

The grounds for these reliefs were also set out on the face of the motion paper. They are as follows:-

1. The Notice of Appeal in this appeal dated 15th May, 2008 was duly filed before the trial tribunal.
2. Appellant/Applicant’s Counsel inadvertently omitted to include the proposed ground of appeal in the Notice of Appeal and consequently, also omitted to address same in the Appellant’s Brief of Argument earlier filed before the Honourable Court.
3. The issue of law raised in the additional ground 15 is a fresh issue of law in which the leave of this Honourable Court is required to raise and argue same.
4. The said proposed additional ground of appeal is fundamental and raises a jurisdictional issue that will determine the appeal one way or the other.
5. No fresh evidence is required to deal with the said issue in the proposed additional ground of appeal as all facts relating to the issue are contained in the record before this Honourable court.
6. Leave of this honourable Court is required to amend the Appellant/Applicant’s Notice of Appeal, Appellant/Applicant’s Brief of Argument and to raise and argue the fresh issue flowing from the said additional ground of appeal.
7. The interest of justice would be best served by the grant of this application as same seeks to bring before the honourable court all the issues in contention.
8. The respondents will not be prejudiced by the grant of this application.

This Court considered this application and when there were no objections from any of the Counsel to the Respondents saw good reason to grant it as prayed. In consequence of granting this application, the previous briefs settled and filed by respective learned Counsel were abandoned and fresh briefs were filed. At the hearing of the appeal on 25th February 2009, respectively learned Counsel identified their briefs. Thereafter each Counsel in turn adopted and relied on their briefs in this appeal. While each of the appellants urged this Court to allow their appeal and dismiss the cross appeal, the 1st Respondent/Cross Appellant urged the Court to dismiss the appeals and allow the cross appeal. But before doing that respective learned Counsel had taken turns to address the Court on some of the high points in the appeals.

At this stage it is relevant to point out that ground 15 of the amended notice of appeal of the Appellant, which was brought in with leave of this Court, complained of want of jurisdiction and competence of the lower Court to entertain petition NO.EDNA/EPT/8/07. This ground and its particulars are hereby set out as follows:-

GROUND 15:

The learned chairman and members of the tribunal erred in law as they lacked jurisdiction to hear and determine the petition of the 1st Respondent which was incompetent

PARTICULARS OF ERROR

1. The election to the House of Representatives in Akoko Edo Federal Constituency of Edo State which the 1st Respondent challenged at the trial tribunal was held on the 21st day of April, 2007.
2. The result and declaration of the winner of the said election was made on the same day i.e. 21st April, 2007 wherein the appellant was declared the winner.
3. The 1st respondent being dissatisfied with the outcome of the election, filed his petition challenging same on the 21st May, 2007.
4. S. 141 of the Electoral Act, 2006 states that Election Petition must be filed within 30 days commencing from the day of declaration of result.
5. From the date of declaration of the result of the election to the date of filing the petition at the tribunal, there is clearly a period of 31 days which is outside the period prescribed by law for the presentation of petition.
6. The lower tribunal lacked the jurisdiction to hear and determine the petition filed by the 1st Respondent.

This ground 15 gave birth to issue No.4 in the appellant’s amended brief deemed properly filed and served on 4th February, 2009. It goes thus:-

“Whether having regards to the provision of Section 141 of the Electoral Act 2006, the petition filed by the 1st Respondent was competent.”

Learned Counsel Dr. Izinyon SAN argued this issue very exhaustively at pages 23 – 30 of his amended brief of argument. The 1st Respondent/Cross Appellant responded to the submissions and arguments of Dr. Izinyon SAN at pages 22 to 27 of her amended brief dated and filed on 6th February, 2009. On their part, the 2nd – 4th Respondents replied to the submissions on jurisdiction only in their brief of argument dated and filed on 9th February, 2009. They only argued issue 4 of the appellant brief. The reply brief of the Appellant is dated 16/2/09 but was filed on 19/02/09.

Because this ground 15 from which issue No.4 was formulated and argued raised the issue of jurisdiction, I find it incumbent and compelling to dispose off that issue first and foremost because it is crucial and a threshold issue to the proper and competent determination of this appeal.

Learned counsel to the appellant had referred to a number of decided cases and principally submitted that any election petition filed outside the 30 days stipulated under Section 141 of the Electoral Act, 2006 renders the petition incompetent. He also argued that the date of the declaration of the result of the election must be included within the period of limitation. He argued further that a Sunday cannot be excluded even if the final or last day of the 30 days fell on it. Learned counsel also maintained that the provisions of the Interpretation Act, Federal High Court Civil Procedure Rules, Evidence Act and the Public Holidays do not apply in the interpretation of Section 141 of the Electoral Act 2006. It is upon this that learned counsel urged this court to hold that petition NO. EDNA/EPT/8/07 was incompetent and void ab initio since it was filed outside the 30 days period. He also urged the Court to allow this appeal and strike out the petition.

2nd – 4th Respondents in effect agreed with the submissions of learned counsel for the appellant, while learned counsel to the 1st Respondent/Cross Appellant strongly opposed and objected to this approach and interpretation maintaining that Section 141 of the Electoral Act 2006 is subject to the Interpretation Act, Federal High Court Civil Procedure Rules and the Public Holiday Act.

I will adopt the issues identified by the Appellant’s Counsel already set out above in the Consideration of this appeal. I will start with issue No.4, for the simple reason that it raised the issue of jurisdiction i.e. “Whether having regard to the provision of Section 141 of the Electoral Act 2006, the petition filed by the 1st Respondent was competent.”

It is trite that jurisdiction is a threshold issue 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 is conducted, the trial would be a nullity. See CHIEF ELIGBE OMOKHAFE (2004) 12 SCNJ. Page 106.ELABANJO V. DAWODU (2006) 6 SCNJ 204.

The issue of jurisdiction will be considered and dealt with first, even though it is the 4th issue distilled for determination. The disposal of this issue one way or the other will affect the entire appeal. If I find that the issue of jurisdiction is well within the law, this Court will have no jurisdiction to go into the merit of this appeal. If on the other hand the issue of jurisdiction is misconceived, I will then go into the main appeal, and deal with the other issues for determination.

As the final Court in election matters other than the Presidential Election, the disposal of this issue would affect the appeal. Where an appeal is based on several grounds which include a ground raising and challenging jurisdiction on a firm ground before the Court of Appeal sitting as a final Court in an 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 ALH. BARI BUDO NUHU V. ALH. ISOLA ARE OGELE (2003) 12 SCNJ. 158.

It is the case of the Appellant that the Appellant was declared winner on the 21st of April 2007 the day the election was held. The 1st Respondent filed the petition on the 21st of May 2007 i.e. on the 31st day, and therefore strayed from the 30 days provide for under Section 141 of the Electoral Act 2006. They cited several authorities to drive home this point.

The 1st Respondent/Cross Appellant on their part argued that since the last day was a Sunday regarded as a “work free day”, they were within the ambit of the law to have filed the Petition on Monday the 21st May 2007 the next working day. They also cited numerous authorities to buttress this stand.

Section 141 of the Electoral Act 2006 provides as follows:

“An Election Petition under this Act SHALL be presented within Thirty (30) days from the date the result or the election is declared.” (underlining mine for emphasis).

All Counsel in this appeal conceded that the result was declared on the 21/4/07, hence the 1st Respondent/Cross Appellant concentrated on the fact that since the last day fell on Sunday, a non working day, that the Petition filed on the 21st of May 2007 the following day was well within the Law.

To this end Exhibit 62 an earlier document by INEC form EC8A ii which bore 24th of April 2007 comes into play. Exhibit 62 is not the final document by INEC with which it declared the said result. The final document by INEC declaring the result is what is relevant for the purpose of interpreting Section 141 of the Electoral Act 2006 which provides for the date the result was declared. If therefore the final document by INEC is in conflict with any of its earlier documents for the purpose of declaration of results of Candidates, the later document supersedes the former for the purpose of determining the day the result was declared in this matter.

I have carefully considered and studied the arguments and authorities in the briefs relied on by the parties.

There is no doubt that the said election was declared on the 21st of April 2007. It is also not in doubt that the 1st Respondent filed her Petition at the lower tribunal on the 21st of May 2007 i.e. 31 days after the declaration of the said result.

I am aware of the decision of this court 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 details concerning argument of Counsel, and detailed analysis of the issue of jurisdiction to avoid repetition. I see no cogent reason, or any reason whatsoever to depart from that Judgment.

In the circumstance of this case, I hold that time began to run on the 21st of April 2007, the day the result was declared, and that time ended on the 20th of May 2007. The filling of the Petition on the 21st of May 2007, a day outside the statutory period has therefore resulted in fatal consequences on the Petitioner (1st Respondent herein). The Petition filed on the 21/5/07 having been filed on the 31st day has regrettably strayed outside the period stipulated by Section 141 of the 2006 Electoral Act. The fact that the last day fell on a Sunday does not hold water to justify this lapse.

The Petition is statute barred and section 141 of the said Election Act does not permit 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 said decision is a nullity as well as the consequential orders.

The Petition filed by the 1st respondent at the tribunal below on the 21st of May 2007 having been declared incompetent is accordingly Struck Out.

I make no order as to Costs.

---

Other Citations: (2009)LCN/3258(CA)