Abasi Ogwime Braimah & Anor. V. Hon. Abubakar Eshiokpekha Momoh & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
NWOSU-IHEME (Ph.D), J.C.A.
This appeal is against the Judgment of the Governorship, and Legislative Houses Election Tribunal sitting in Benin, Edo State. The said Judgment was delivered on the 30th day of April 2008. The Appellant in appeal NO. CA/B/EPT/128/08 ABASI OGWIME BRAIMAH was the 1st Respondent at the lower tribunal. He was the Candidate of the Peoples Democratic Party (PDP) for Etsako Federal Constituency of Edo State held on the 21/4/07.
The 1st Respondent in the same appeal NO.CA/B/EPT/128/08 HON. ABUBARKAR ESHIOKPEKHA MOMOH was the Candidate of the 2nd Respondent, the Action Congress. The 3rd to the 20th Respondents in this appeal were the Independent National Electoral Commission (INEC) and its officials that conducted the said election.
At the Conclusion of the elections, the Appellant was declared victorious and returned as elected. Aggrieved by 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:
(a) “The election of the 1st Respondent be nullified and his return or declaration as the winner set aside.
(b) the 1st Petitioner be declared as validly elected or returned having polled the highest number of lawful votes cast at the election.
ALTERNATIVELY:
(c) the entire results declared by the 2nd Respondent through its appropriate officials for:
(i) Etsako West Local Government Area:
(ii) Etsako Central Local Government Area
(iii) The Polling Units and Wards Constituting (i) and (ii) above be nullified or cancelled and a re-election ordered therein;
(d) The results declared by the 2nd Respondent through its appropriate officials for wards 1, 2 and 8 in Etsako East Local Government Area and units 6, 7 and 8 in ward 4, as well as unit 7 in ward 9 be nullified or cancelled and a re-election ordered in the said wards or units.
IN THE FURTHER ALTERNATIVE
That the entire result declared by the 2nd Respondent through its appropriate officials for Etsako Federal Constituency be nullified or cancelled and a re-election ordered.”
The Respondents filed their various replies to the Petition. Thereafter the Petition proceeded to trial, at the end of which the lower tribunal in its Judgment at page 1252 of the record of appeal held that the election and return of the 1st Respondent by the 3rd, 4th – 20th Respondents as the person duly elected at the election into the Etsako Federal Constituency be voided.
“Where file votes cast at an election in any Constituency or polling station exceeds the number of registered voters in that Constituency or polling station, the election for that constituency or polling station shall be declared null and void by the Commission and another election shall be Conducted at a date to be fixed by tile Commission ……… for
file foregoing reasons therefore, tile tribunal orders a re-run of tile election in this Constituency rather than return file 1st Petitioner as elected.”
The tribunal made the following orders:
(1) “The election and return of the 1st Respondent by the 3rd, 4th – 20th Respondents as the Person duly elected at the election into the Etsako Federal Constituency be and is hereby voided.
(2) The 3rd, 4th – 20th Respondents be and are hereby ordered to conduct another election in all the polling units and wards of the entire Constituency within 3 months from today.”
It then proceeded to nullify the election, and order a re-run of the election in the constituency.
Dissatisfied with the Judgment, the Appellant appealed to this Court. In his original Notice of Appeal the Appellant filed one Notice of Appeal, he later sought leave of this Court to file Six additional Grounds of Appeal, and later on the 4/2/09 he further amended the already amended notice of appeal to include one additional ground of appeal in which they challenged the competence of the Petition.
The further amended Notice of Appeal has 37 Grounds of Appeal, from where he formulated fifteen issues for determination:
1) Whether the Tribunal adopted and/or applied the right standard in proof of the allegations contained in the petition. Grounds 1, 2 and 3,
2) Whether having reference to the pleadings and the reliefs sought the Tribunal was right to have received and acted on evidence emanating from the recounting of ballot papers at the trial. Grounds 4, 6, 7, 8 & 9.
3) Whether the Tribunal was right to have voided the results of the election in Etsako Central Local Government Area of Edo State. Ground 10.
4) Whether the Tribunal was right to have voided the election results in wards 1, 2, units 6, 7 and 8 of ward 4, and ward 8 of Etsako East Local Government Area of Edo State. Grounds 11, 12, 14 and 15
5) Whether the Tribunal properly evaluated the evidence led before arriving at the decision contained in its judgment being appealed against. Grounds 5, 13, 16 and 25.
6) Whether, having reference to the pleadings, the reliefs sought and the evidence led the Tribunal was right to have voided the election results in wards 4, 5, 6, 7, 8, 11 and 12 of Etsako West Local Government Areas of Edo State. Grounds 17, 18, 19, 20, 21, 22, 23 and 24.
7) Whether, having regard to the pleadings, the reliefs sought and the evidence led, the tribunal was right to have voided the election or return of the 1st respondent as the person duly elected into the House of Representative for Etsako Federal Constituency in Edo State. Ground 26, 27 and 28.
8) Whether the Tribunal was right to have admitted and acted on Exhibits 141(1) -141(107). (Ground 31)
9) Whether the Tribunal was right in law when it held that DW12 and DW13 were incredible and untruthful witnesses. (Ground 32)
10) Whether the Tribunal was right when it found and held that the petitioners’ witnesses were credible and witness of truth. (Ground 33)
11) Whether in the light of pleadings and evidence led the Tribunal was right to have ordered the conduct of another election in all the polling units and wards of the entire Etsako Federal Constituency. (Ground 30)
12) Whether the Tribunal was right when it failed to consider and/or resolve the issue raised by Counsel to the respondents at the Tribunal that the results of the election tendered from the bar by counsel to the petitioners enjoy rebuttable presumption of correctness in law. (Ground 34)
13) Whether the Tribunal was right to have voided the election results in ward 7 of Etsako East Local Government Area of Edo States. (Ground 35)
14) Whether the lower Tribunal had jurisdiction to entertain the petition. (Ground 36)
15) Whether the lower Tribunal was right when it assumed jurisdiction and held evidence of the witnesses (PW1-PW56) in spite of the fact that the deposition on oaths of those witnesses were not front loaded with the amended petition, nor was leave sought to use the statement that were frontloaded with the petition that was filed on the 21/5/2007. (Ground 37).
Hon. Abubarkar Eshiokpekha Momoh and Action Congress which were the 1st & 2nd Petitioners at the lower Tribunal Cross Appealed in appeal NO.CA/B/EPT/155/08 and therein raised four issues for determination. INEC and its officials also filed their respective briefs.
Consequent on the orders of this Court, the two appeals were consolidated as one appeal. Issues were joined by parties and briefs were filed by Counsel.
Chief E.L. Akpofure SAN in his issue No.14 raised the issue of jurisdiction.
Ken Mozia Esq learned Counsel for the 1st & 2nd Respondents summarized the 13 issues for determination by the Appellants into Six issues.
C.O. Ihensekhien for the 4th – 20th Respondents distilled three issues for determination.
The 1st & 2nd Respondents raised a preliminary objection to the competence of the further amended Appellants brief of argument on the Ground that there was no correlation between it and the extant Notice of Appeal of the Appellants.
My view is that the further Amended Appellants brief of argument is properly linked to the extant Notice of Appeal by the Appellants. The preliminary objection lacks merit, it is hereby over ruled.
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.14, which is same as issue No.5 of the 1st & 2nd Respondents, for the simple reason that it raised the issue of jurisdiction, i.e. “Whether the lower tribunal had jurisdiction to entertain the petition”.
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 v. OMOKHAFE (2004) 12 SCNJ Page 106.
ELABANJO v. DAWODU (2006) 6 SCNJ 204.
The issue of jurisdiction will therefore be considered and dealt with first, even though it is the 14th issue distilled for determination by the Appellant. The disposal of this issue one way or the other will affect the appeal. If it is established that the issue of jurisdiction is properly raised, this Court will have no jurisdiction to dwell into the merit of this appeal. If on the other hand the Court is convinced that the issue of jurisdiction is misconceived, I will then look at the other issues for determination. As the final Court in Election matters other than the Presidential Election, the disposal of the issue of jurisdiction would affect the appeal. Where an appeal is based on several grounds which include a ground raising the issue of 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 ALHAJI BARI BUDO NUHU V. ALHAJI ISHOLA ARE OGELE (2003) 12 SCNJ page 158.
The Appellants in this Appeal have contended that the 1st Appellant Abasi Ogwime Braimah was declared winner on the 21st April 2007, the day the election was held as per Exhibit 153 which is the Certified true copy of the declaration of result form EC8D(ii) which was tendered from the Bar by the Petitioners Counsel (the 1st Respondent herein). That the said Exhibit 153 was pleaded in their amended petition at page 324 of the record of Appeal, and item No.4 of the documents to be relied on. The 1st Respondent (1st Petitioner at the lower tribunal) filed the Petition on the 21st of May 2007 i.e. 31 days after the said result was declared, and clearly strayed away from the 30 days provided for under Section 141 of the Electoral Act 2006, they cited several authorities to drive home this point including:
CHRISTOPHER O. IYIRHIARO & ANOR. V. USOH (1999) 4 NWLR (PT.597) page 50.
GEORGE AKUME & ANOR. V. CHIEF DR. SIMON A. LIM (2008) 16 NWLR (PT.IIl4) page 490 at 504
FADARE V. A.G, OYO STATE (1982) 13 NSCC page 52 at 60.
The 1st & 2nd Respondents on their part argued that the Appellants have failed to show where it was pleaded that the results were declared or announced openly on the 21/4/07.
They contended that there was no relevant evidence adduced on the issue of jurisdiction before the tribunal, and the only evidence relied on by the Appellants was Exhibit 153 tendered from the Bar by the 1st & 2nd Respondents’ Counsel.
They cited Sections 140 & 144 of the Electoral Act 2006, and submitted that Section 141 of the Electoral Act which provides for time within which to present an election petition must be interpreted in such a way as not to defeat the right conferred by Sections 140 & 144 of the Electoral Act as well as Section 285 of the 1999 Constitution.
Counsel also argued that assuming without saying so that the result in issue was declared on the 21/4/07, and counted from the said 21/4/07, that the 30lh day would fall on the 20th of May 2007 a Sunday. That by the provisions of the public Holiday Act which is applicable to tribunals, the 1st of May 2007, and the 20th of May 2007 will not be taken into consideration in the computation of time being public holidays, he contended that the Petition filed on the 21/5/07 was therefore filed within time in the Circumstances. He cited AGBAI V. INEC & ORS. (2008) 14 NWLR (PT.1108) 417 at 434.
Also ALHAJI M.D. YUSUFU & ANOR. V. OBASANJO & 56 ORS. (2003) 16 NWLR (PT.847) 554 at 608.
BALEWA V. MUAZU (1999) 5 NWLR (PT.604) page 636 at 643 among numerous other authorities.
The much talked about Section 141 of the Electoral Act 2006 provides.
“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)
While the Appellants insisted that the result was declared on the 21/4/07, the 1st & 2nd Respondents argued that the date of declaration of result was not clear from the Petition.
To this end Exhibit 153 form EC8D(ii) tendered from the Bar by Counsel to the 1st & 2nd Respondents themselves comes into play. The same form EC8D(ii) was pleaded by the Respondents who were petitioners at the lower tribunal in their amended Petition at page 324 of the record of appeal. The same form EC8D(ii) was listed by 1st Respondent (1st Petitioner at the lower tribunal).
The hearing of a case be it on trial or on appeal, is simply a search for truth and Justice. Where ever, and however the truth is found, a Court of Justice ordinarily ought to make use of it.
The issue before the Court concerns the declaration of the result of the election held on the 21st of April 2007. Good evidence remains good and maintains its quality at all times and in all circumstances either as oral, or documentary evidence.
It is also trite that what is admitted need not be proved. The 1st & 2nd Respondents have never denied that the election was declared on the 21/4/07 as per Exhibit 153 which they tendered and pleaded themselves.
In the instant case, I find the truth and the Justice of this case in Exhibit 153 form EC8D(ii) tendered and admitted at the trial tribunal. The said Exhibit 153 is clear, and the date the election was declared clearly written. I therefore see no reason or Justification why this Court should not make use of the said Exhibit 153.
After a very careful consideration of the arguments of both parties, there is no doubt that the 1st & 2nd Respondents (1st & 2nd Petitioners at the lower tribunal) cited, tendered and relied on Exhibit 153 in the prosecution of their petition at the lower tribunal. It is therefore too late in the day to deny the same Exhibit 153.
There is therefore no doubt that the said election was declared on the 21st of April 2007. It is also not in doubt that the 1st & 2nd Respondents herein filed their Petition at the lower tribunal on the 21st of May 2007 i.e. 31 days after the said result was declared.
I am not unmindful of the decision of this Court in CA/B/EPT/221/08 PATRICK IKHARAIALE & ANOR. V. THEOPHILUS OKOH & ORS. delivered by this Court on the 23rd of April 2009, and other similar decisions on the interpretation of Section 141 of the Electoral Act 2006. The facts and circumstances of that case are in no way different from the instant case. I have no reason or justification what so ever to depart from that judgment.
Accordingly, I hold that time began to run on the 21st of April 2007, the day the result of the election was declared and that time terminated on the 20th of May 2007.
The filing of the Petition on the 21st of May 2007, one day outside the statutory period was a risk and lapse on the side of the 1st Respondent which has regrettable resulted in fatal consequences on the Ist Respondent. The petition filed on the 21/5/07 having been filed on the 31st day has strayed outside the period stipulated by Section 141 of the Electoral Act 2006. The fact that the last day fell on a Sunday does not hold water, and is no reason to justify this lapse. The Petition is statute and time barred and the Electoral Act does not allow for extension of time.
Consequent upon the Petition being statute and time barred, the lower tribunal lacked the competence to have entertained the Petition. The trial and the subsequent Judgment by the tribunal is an exercise in futility, the fact that the trial was well conducted not withstanding. The said decision is a nullity as well as the consequential orders. The Petition filed by the 1st and 2nd Respondents at the Tribunal below on the 21st of May 2007 having been declared incompetent and a nullity is hereby struck out.
I make no order as to costs.
Other Citations: (2009)LCN/3366(CA)
