Action Congress & Anor. V. James Yakwen Ayuba & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

ALFRED P. EYEWUMI AWALA J.C.A.

Sequel to the General Election held nationwide on 21/4/07 for seats in the Federal House of Representative inter alia, this appeal and Cross-Appeal arose from the decision of the Election Petition Tribunal holden in Jos Plateau State (herein after called the lower tribunal) set up to hear petition No. AD/NASN/EPT/3/07 from the election. Reserved judgment was delivered on 12/9/07 by the lower tribunal dismissing the said petition filed by the Appellants against the election of the 1st Respondent to the House to represent Mangu/Bokkos Federal constituency after the election held on 21/4/07 as part of the said general election. Whereat the 1st Respondent was declared the winner and returned elected by the 3rd Respondent. It is note worthy to state that the 2nd Appellant was the flag bearer for the 1st Appellant during the election, while the 1st Respondent contested the election on the platform of the Peoples Democratic Party (PDP) not joined in this appeal.

The Appellants being dissatisfied with the whole decision/judgment regarding the interpretation of Section 141 of the Electoral Act, 2006 by the lower tribunal filed a Notice of Appeal dated 24/9/07 to the Court of Appeal, Jos, 25/9/07. The 1st Respondent also not satisfied with part of the decision filed a Notice of Cross-Appeal dated 28/9/07 to that effect on 28/9/07.

Four grounds of Appeal are raised by the Appellants in their Notice of Appeal, whilest one by the Cross-Appellant in his Notice of Appeal.

On 14/4/08 appeal and’ cross-appeal were heard’ together after due filing on and exchange of Briefs of Argument by parties. Appellants’ brief was filed 26/10/07 deemed 3/3/08; 1st Respondent filed his on 2/11/07 deemed 3/3/08 and the 2nd to 5th Respondents’ filed their jointly on 31/10/07 deemed 3/3/08. The Appellants’ filed an Appellants’ Reply Brief on 16/11/07 deemed 3/3/08. The cross-appellant’s brief was filed on 31/10/07 deemed 3/3/08. Whereas the Cross-Respondents filed their joint Brief of Argument on 7/11/07 and deemed 14/4/08 the day of hearing both appeals.

Learned counsel for the parties, except for the 2nd to 5th Respondent who was absent at the hearing after filing his clients’ joint brief, adopted and relied on their respective briefs of arguments in both the main Appeal and the cross-appeal at the hearing.

The Appellants in the main appeal distilled two issues whereas the 1st Respondent couched 3 issues, whilest the 2nd to 5th Respondents raised one issue respectively for determination. In the cross-appeal one issue each was couched by the cross-appellant and the cross-respondent respectively.

I shall deal with ‘the appeals seriatim, one after the other. The main appeal first and then Cross-Appeal. The Appellants’ two issues couched for determination in the main appeal read thus:-

(i) “Whether in view of the decisions of the Supreme Court in Akeredolu v. Akinremi (1985) 2 NWLR (Pt. 10) 789 and Yusuf v Obasanjo (2003) 19 NWLR (Pt. 847) 554 the trial tribunal was right in striking out the Appellants’ petition, which was filed 22/5/07 against the result of the election which the tribunal found to have been declared on 22/4/07 on the ground that the petition ….(sic) was filed out of time (Based on Grounds 1 & 2 and 4).

(ii) Whether the tribunal was right when determining whether this election petition was filed within time stipulated in section 141 of the Electoral Act, 2006, it failed to have recourse to the provision of section 15(2) of the interpretation Act, CAP 192 LFN 1990 and Order 23 of the Federal High Court (Civil Procedure) Rules, 2000.” (Grounds 3).

Whereas the three issues raised for determination by the 1st Respondent in the main appeal read thus:-

(a) Whether the ruling of the ‘Nasarawa Election Tribunal in petition EPT/NS/022/007 between Umar Yahuza Musa & Anr V Muhammed A. Al-Mukura & 94 Ors delivered on the 7/8/2007 was binding on the tribunal (Ground 1)

(b) Whether the Plateau State Governorship and Legislative Houses election Tribunal was bound to follow the decisions of the Supreme Court in Akeredolu v Akinremi (1985) 2 NWLR (Pt. 10) and Yusuf v Obasanjo (2003) 16 NWLR (pt. 847) 554 as against that of the Court of Appeal in Ogbebor v Danjuma (2002) 15 NWLR (pt. 843) 403 and Alataha v Asin (1999) 5 NWLR (Pt 601) 324 (Grounds 2 and 3)

(c) Whether the. Election Petition presented on the 22/5/07 against declaration of result made on the 22/4/2007 was statute barred (Ground 4).

Finally, the one issue for determination formulated by the 2nd to 5th Respondents is as follows:-

“Whether .the petition as filed was brought within the time stipulated by S.141 of the electoral Act, 2006.” (Grounds 1 to 4).

I prefer the three issues distilled by the 1st Respondent (Supra) because they encompass much more aptly the four grounds formulated by the Appellants in their grounds of Appeal to resolve the main appeal. That does not mean however that I will not refer to the issues raised by the Appellants and the sole one by the 2nd to 5th Respondent where the need arises I certainly will. Now the argument by the Appellants’ Counsel:

The 1st Respondent’s first issue is reproduced again for ease of reference as follows:-

“Whether the Ruling of the Nasarawa Election Tribunal in petition No. EPT/NS/022/2007 between Umar Yahuza

Musa & Anor v Muhammed A. Al-Makura & 94 Ors delivered on the 7/8/07 was binding on the tribunal” (Ground 1)

The Appellants’ learned counsel did not proffer any argument directly on this issue but argued it together with their issue two and in , their Appellants Reply Brief I shall deal with it later while treating his issue two. For now I treat 1st Respondent’s argument of his issue one because the Courts can only handle issues as the litigants present them otherwise the Court will be accused of fishing.

The learned senior counsel for the 1st Respondent argued his issue one as follows:-

That Section 285(2) of the 1999 constitution establish Election Tribunals with original jurisdiction in the 36,.states of the Federation including Abuja to hear and determine election petition matters arising from the National Assembly, Governorship and Legislative Houses election for each of the said States of the Federation with original jurisdiction to start and end ‘same within each state. None is superior, none is inferior to each other. In other words, they are all of concurrent jurisdiction. He cites Ibori v. Ogboru (2005) 6 NWLR (Pt. 920) 102.

Secondly that by the doctrine of stare decisis it is now trite law that the lower court is bound by the decision of the Higher Court and ultimately by the decision of the Supreme Court. Courts or tribunals however of concurrent jurisdiction, such as the tribunal sitting in Plateau State and the one sitting in Nasarawa State their decisions do not bind each other. He cites S.285 (2) of the 1999 Constitution; Clement V Iwuanyawu (1989) 3 NWLR (Pt 107) 39 and General Electric Co V Akande (1999) 1 NWLR (Pt. 588) 532. In other words, the Ruling by the Nasarawa State Election Tribunal Petition in. No. EPT/NS/022/2007 (supra) does not bind the Plateau State Election Petition Tribunal it is only persuasive not binding. Hence that Ruling was discountenanced by the lower tribunal. In a nut shell the learned senior counsel submitted that the Appellants’ counsel’s submission that his Ground one as formulated by him never complained of The lower tribunal’s failure to follow the Nasarawa State election Petition Tribunal is erroneous. To cut the argument short the senior counsel asked what was Ground 1 as formulated by the Appellants? (See page 304 of the record). It is as follows:-

Grounds one without the particulars reads as thus:-

“Mr G.S. Pwul, of counsel to the petitioners forwarded to us the ruling of Nasarawa State Election Petition Tribunal in Petition No. EPT/NS/022/2007 betweenYahuza Musa & Anr V Muhammed A Almakura & 94 Ors delivered on 7/8/07 which ruling relied on the dictum of Uwaifo JSC (as he then was) in Yusuf v. Obasanjo (2006) 16 NWLR (Pt. 847) 554 to hold that the date should be calculated a day after the declaration of Result. That Ruling which is not binding but persuasive relates to date of filing of Appeal and also refers to an Appeal “within 30 days” and not 30 days “From” as used in the S. 141 of the Electoral Act, 2006.

In the circumstances, we hold that we .are not persuaded, by the Ruling of the Nasarawa State Tribunal referred to (supra): In so far as it relied on a dictum that the interpretation words are not the same as those used in S.141 of the Electoral Act, 2006. When the Tribunal ought to have followed the binding authorities of the Supreme Court in Akeredolu V Akinremi (1985) 2 NWLR (Pt. 10) 787 and Yusuf V Obasanjo (2003) 16 NWLR (Pt. 847) 554, cited in the Ruling of the Nasarawa State Election Petition Tribunal”

1st Respondent’s counsel submitted that the Appellants’ learned counsel did not raise any specific issue from the above ground one formulated by him but argue same indirectly in his ground two (supra).

It is pertinent to note that the contrary view in ground one above reproduced is the argument of the learned counsel for the Appellants in support of the first issue distilled by the 1st Respondent’s learned senior counsel I am relying on that to resolve this appeal. It will be a mere repetition to appraise again the Appellants’ counsel argument vis a vis issue one.

Now issue two

The issue 2 raised by the 1st Respondent is on all fours with the issue one distilled by the Appellants. It reads:-

“Whether in view of the decision of the Supreme Court in Akeredolu V Akinremi (1985) 2 NWLR (Pt. 10) 789 and Yusuf V Obasanjo (2003) 16 NWLR(Pt. 847) 554 the tribunal was right in striking out the Appellants’ petition, which was filed 22/5/07 against the result of the election which the Tribunal found to have been declared on 22/4/07 on the ground that the petition (sic) was filed out of time” (Ground 1 and 2).

Arguing this issue Appellants’ learned counsel submitted that the lower tribunal faced with computation of. time within which the Appellants ought to have filed their petition, first had to resolve the issue of the day when the result of the election held nation wide on 21/4/08 for House of Representatives Federal constituency for Mangu/Bokkos was declared; for the purpose of calculating the statutory period of 30days allowed by Section 141 of the Electoral Act, 2006 for filing of an election petition. The lower tribunal made its finding at page 301 of the record thus:-

“We hold therefore that the date for the declaration of Result in respect of Bokkos/Mangu Federal Constituency was made on 22/4/07. This brings us to S. 141 of the Electoral Act, 2006…….”

Counsel then contended that the tribunal having determined the date of declaration of the result to be 22/4/07 the next question to answer is when did the period of 30 days starts to run as per S. 141 of the Electoral Act, 2006 The Section 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”

(underline by counsel).

Learned counsel for the Appellants then submitted that there are three decisions of this Court of Appeal, to the effect that the date of declaration is included in the calculation to wit:-

(1) Ogbebor V Danjuma (2003) 15 NWLR (PT. 845) 403

(2) Emeka V Emodi (2004) 16 NWLR (Pt. 900) 433

(3) Alataha V Asin (1999) 5 NWLR (Pt. 601) 324

As against two decisions of the Supreme Court to the contrary, thus:-

(i) Akeredolu V Akinremi (1985) NWLR (Pt.10) 787

(ii) Yusuf V Obasanjo (2003) 16 NWLR (Pt. 847) 554 which decided that the date of the event (as in this instance case date

declaration of result of the election) ought not be reckoned with; in other words the date ought to be excluded.

Counsel furthered his submission that it should be noted that the three cases of this court mentioned above took the stand that counting or computing should start from the date of declaration and that the provision (Section 141) is plain and does not require any external aid to interpret it. Such as the Interpretation-‘Act section 15(2) (a), and Order 12 rule of the Federal High court Rules 2000 both providing “exclusion” of the day of the event (declaration day).

Counsel submitted further that there are other contrary decisions of this Court of Appeal which support “exclusion” namely

(1) Kamba V Bawa (2005) 4 NWLR (Pt. 914) 43

(2) Galaudu V Kamba (2004) 15 NWLR (Pt. 895) 31

(3) Awuse V Odili (2004) 15 NWLR (Pt. 876) 481

(4) Ayogu V Nnamani (2004) 15 NWLR (PT. 895) 134

(5) Balewa V Mu’azu (1999) 5 NWLR (Pt. 609) 636.

Counsel then argued that from the above decisions, it is clear as crystal that the consistent and general trend of this court is one of “exclusion” of the day of declaration of result. He submitted further that it is trite the tribunal is limited and bound by the majority decision of this court. That it is now settled law if a court is faced with conflicting decisions of a superior court it can choose the one to follow. He then furthered his submission by arguing that the Supreme Court being the highest court in the land, all other courts or tribunals are bound to abide by its decision under the doctrine of stare decisis cites Fawehinmi vs. Nigeria Bar Association No.2 (1982) 2 NWLR (Pt. 105) 558 and Okonjo vs. Odje (1985) 10 SC 267 and Dalhatu Vs. Turaki (2003) 15 NWLR (Pt. 842) 310. That the lower tribunal did not follow same Appellants’ counsel concluded his argument by submitting that that is a judicial indiscipline for the lower tribunal to fall foul of the doctrine of stare decisis by declining to apply the decision of the Supreme Court in Akeredolu vs. Akinremi (supra) and Yusuf vs. Obasanjo (supra) and claiming that the decisions are obiter dicta. Counsel opined that the tribunal is in grave error. He urged us to resolve this issue in favour of the Appellants.

On the other hand the Learned Senior Counsel for the 1st Respondent in response first applied to withdraw the preliminary objection he raised and argued in pages 9 and 10 of his brief of argument. As there was no objection by the opposing parties’ counsel the same was accordingly struck out by us.

He then centred his argument on the import of Section 141 of the Electoral Act, 2006 and relevant case Laws on the same and submitted that he adopts the argument by the Appellants’ counsel with regards to the doctrine of the stare decisis to avoid repetition. That there is no doubt about it that the cases of Akeredolu Vs. Akinremi (supra) and Yusuf vs. Obasanjo (supra) are binding precedent on the tribunal but that they were not cited by the Appellant’s counsel before the tribunal both in his three written addresses and in his oral address. The issue of stare decisis is that it is only being raised for the first time in the Appellants’ Brief here in this Court of appeal. They can not do that in law without the leave of either the lower tribunal or of this court. Besides, Counsel contended that where the facts of a case are the same before the lower court or tribunal as’ it is before the Court of Appeal or the Supreme Court as the case may be, the lower court or tribunal is bound to follow suit. He cites A.I.C. Ltd Vs. NNPC (2005) 1 NWLR (Pt. 937) 563 at 589 paragraphs H per Edozie JSC.

“… distinction has to be drawn between a ratio decidendi and Obiter dictum of a case. The ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided. Obiter simply means in passing, incidental, cursory. Obiter dicta reflect, inter alia, the opinion of the Judge, which do not embody the resolution of the court. The manner in which the Judge chooses to argue the case is not all important things. Rather it is the principle he is deciding.”

The senior counsel also cited Afro-continental Nigeria ltd vs. Joseph Ayantuyi &. Ors (1995) NWLR (Pt. 420) 411 at 439, Iguh JSC decided thus:-

“it is indisputable that in the judgment of a Court, the legal principle formulated by the Court which is necessary in the determination of the issues raised in the case, that is to say the binding part of the decision is its ratio decidendi as against the remaining parts of the judgment which morally constitute obiter dicta, that is’ to say, that is not necessary for the decision.”

Then he reiterated that where a’ Court or tribunal is faced ‘with scrutinizing an enactment which has clearly been construed by the Supreme Court, the Court or tribunal in that event has no option but to follow the construction as binding upon it. He cites Udo Vs. State (2005) 8 NWLR (Pt. 928) 521.

To crown his argument the senior counsel asked a question what were the principle of law decided in the two cases cited and relied upon by the Appellant’ learned counsel, to wit: Akeredolu (supra) and Yusuf (supra)?

In Akeredolu the Supreme Court was faced with computing the time within which to appeal to the Supreme Court under Section 31(2) of the Supreme Court Act 1960, the day on which the judgment being appealed from was delivered ought it to be included or excluded, that was the issue. That Section 31(2)(a) (Supra) provides thus:-

2 “The period prescribed for the giving of the Notice to appeal as notice of application for leave to appeal are:-

(a) In an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in appeal against a final decision.

The Supreme Court as per Aniagolu JSC held at page 794 of the report that

“In computing the period for the filing of the Appeal in this matter, the date 10/4/05 on which the Court of Appeal delivered its , judgment must be excluded. The calculation thus begins on 11/4/85 and three months from hence must end at midnight 10/7/85”

The Supreme Court concluded in Akeredolu thus:-

“Where a period of time is prescribed by statute and that period is to be computed with reference to an event which had happened, and then the question whether the computation must include or exclude the date on which the event happed could depend on the true intention of the legislature, (Underlining supplied by senior counsel)

That the Supreme Court in Ugwu V Ararume (2007) 12 NWLR (Pt. 1048) 637 at 498 paras C-D thus:

“Thus, where the Language of a statute is clear and explicit, the Court must give effect to it, for in that case, the word of the statute speaks the intention of the Legislature.”

The learned senior counsel then submitted that applying the principles of law adumbrated above to the fact of this case it is apparent that the election petition tribunal sitting in Jos Plateau…state is not bound by Akeredolu, the reasons being that:-

(a) Section 31(2) (a) Supreme Court Act 1960 interpreted by the Supreme Court defers from Section 141 of the Electoral Act, 2006 which the lower tribunal was called upon to interpret.

(b) The facts of the two cases are different. One deals with period within which to appeal in a civil matter from the Court of Appeal to the ‘Supreme Court, while the other deals with computing the date for the presentation of an election petition pursuant to Section 141 Electoral Act, 2006.

As for Yusuf (supra), the facts are, submits the learned senior counsel, as follows: – On 19/4/03, a Presidential Election was conducted nationwide the result of which was declared on 22/4/03 that Chief Olusegun Obasanjo is the winner. On 2/5/03 the appellant presented a petition to the Presidential Election Tribunal on 21/5/03, the Appellants filed a Motion on Notice seeking ,leave to join Corporate Nigeria Ltd by Guarantee as the 5th Respondent and also to effect some nineteen amendments to the petition.

The Court of Appeal refused to grant what it referred to as material and substantial amendment, but granted what it called innocuous amendments. Dissatisfied, the appellants appealed to the Supreme Court. The lead judgment was by Niki Tobi, JSC at page 609 paras EG he said:-

“It looks clear to me that the legal duty of the petitioner is to make amendment within a period of thirty days from the date the result of the election is declared,”

In page 608 paragraph H his lordship said “The result of the election was declared on 22/4/03. The election petition was filed on

2/5/03 and the Motion for amendment of petition was filed on 21/5/03 Reducing that to arithmetical detail, since the result was declared on 22/4/03, and the Motion, for Amendment was presented within 30 days from the date of declaration of the ejection for the purpose of stare decisis.

The learned senior counsel submitted that it is the lead judgment by Niki Tobi JSC., not that by Uwaifo JSC at page 628 to 633 who made contribution. So did Edozie JSC at page 636 paras G-H. Other justices of the full court of seven made no comment on the period for filing election petition pursuant to S.141:- For ti]e avoidance of doubt I reproduce the contributions by Uwaifo and Edozie JJSC thus:-

Uwaifo JSC said

“It is not indispute that the presidential election result in question was declared on 22/4/03. The petitioners in this case had 30 days within which to appeal against. The 30days will be calculated from 23rd April to end 22nd April 2003.”

Edozie JSC said

“As stated earlier, the election result was declared on 22/4/02 (sic), the appellant filed their petition on 2/5/03 and the Motion for amendment under consideration was filed on 21/5/03. Reckoning from 22/4/03 when the result of the election was declared, the 30days period stipulated by Section 32 of the Electoral Act will expire on 22/4/03. It follows that the Motion for Amendment filed on 21/4/93 was within the stipulated period.”

The learned senior counsel then submitted that the above contributions by of Uwaifo and Edozie JJSC are obiter and that is the reason the lower tribunal did not follow Yusuf (supra) as binding for the following reasons:-

(a) In their three written addresses, the petitioners did not submit the two authorities as binding on the tribunal by reason of stare decisis

(b) The private communication from the counsel to the petitioners without informing the 1st Respondent, was not part of the proceedings of the Tribunal

(c) The Tribunal can not act on the authorities submitted by the petitioners without input from the Respondents, that is an infringement of the right to fair hearing (5. 36(1)) of the 1999 Constitution

(d) The issue before the Supreme Court was time for filing amendment to the petition. There is no such issue before the Tribunal.

(e) The ratio of the judgment of the Supreme Court is that the amendment sought out to be granted having been filed within30days, from the date of the declaration of the result.

(f) It is trite the ratio of a case is usually found in the lead judgment that represents the judgment of the Court the contribution of the other justices is not judgment of the Court.

(g) The opinion of Uwaifo and Edozie JJSC are mere obiter dictum and did not embody the resolution of the Court. That opinion was not necessary for resolution of the issues before the Supreme Court.

(h) The fact in Yusuf is different from the facts of the instant case. In that case the petition was presented on 2/5/03 well within time. The statutory period.

(i) The Supreme Court in the case did not interpret Section 132 of the Electoral Act, 2002 which is impari materia to Section 141 Electoral Act, 2006.

The learned senior counsel submitted that it is worthy of note that the Supreme Court is yet to interpret Section 141 of the Electoral Act, 2006. That we must wait for.

He finally posed the question that having disposed of Akeredolu (supra) and Yusuf (supra) as not binding on the tribunal, what next is .binding on it? This is where the judgment of this Court of Appeal in Ogbebor (supra); Alataha (supra); Emeka (supra), Kamba V Bawa (2005)4 NWLR (Pt. 900) 597 come into play. In all they included the date of declaration in the computation. That the provision does not require any external aid like the Interpretation Act to interpret it as Section 141 is clear and unambiguous.

The learned counsel for the 2nd to 5th Respondents merely supported the argument of the learned senior counsel that I have painstakingly appraised above. The consideration of his argument will be repetitive.

Now what is my view of the matter? I must confess I was in the camp of “exclusion” in the beginning; but I am persuaded by the argument of the learned senior counsel for the 1st Respondent. Indeed his argument is now the thinking of this Court. See Appeal No: CA/J/EP/GOV/244/2007 Barr. Kumalia v. (Senator Ali Modu Sheriff the holding of this Court in full complement, of five justices the lead judgment by R.D. Muhammad, JCA, is “inclusion.” As the Supreme Court does sometime revisit its decision when necessary for better reasoning, we do so hereby too.

In the circumstances I resolve issue two in favour of the 1st Respondent and against Appellants. I will now proceed to treat issue three couched by the 1st Respondent. While at it, I will consider also issue 2 distilled by the appellants. For ease of -reference I reproduce both issues again hereunder:-

Issue 3 by the 1st Respondent:- “Whether the Election petition presented on 22/5/07 against a declaration of result made on 22/4/07 was statute barred” (Ground 4).

Issue 2 by the Appellant:- “Whether the Tribunal was right when in determining whether this election petition was filed within the time stipulated by Section 141 of the Electoral Act, 2006, it failed to have recourse to the provision of Section 15(2) of the Interpretation Act, Cap 192 LFN 1990 and Order 23 of the Federal High Court (Civil Procedure Rules 200” Ground 3 and 4)

The Appellants learned counsel had strenuously and I must add. exhaustively while argued his issue one (supra) that the Supreme Court decisions in Akeredolu (supra) and Yusuf (supra) put it without doubt that the petition in instant case filed on 22/4/2007, time started to run as from 23/4/07 to end 22/5/07 therefore that the petition is not statute barred. I need not repeat his argument again in considering issue 3 couched by the 1st Respondent above.

Now as for issue 2 raised by the Appellants above he argued that Section 141 needs interpretation aids- (supra). It is my view however that since there is nothing in the Interpretation Act and the Electoral Act, 2006 to suggest that Section 15(2) of the former applies to Section 141 of the Act which is plain as day the computation of time for filing an election ought to be calculated to include (22/4/07,) the date of the declaration. I so hold.

In the circumstances I resolve issues 3 (raised by the 1st Respondent) and 2 (couched by the Appellants) in favour of the 1st Respondent and against the Appellants.

I now proceed to treat the Cross-appeal filed on 31/10/07 by the 1st Respondent (hereinafter referred to as the Cross-Appellant,) conversely to the Appellant in the main appeal as (“The Cross-Respondents.”).

The Cross-Appeal is against part of the lower tribunal’s ruling delivered on 12/9/07 as aforesaid whereby they held that the result of the election held on 21/4/07 was declared on 22/4/07. The Cross-Appellant dissatisfied with that aspect of the judgment, appealed to this Court (see pages 310 to 313 of the record) formulated one ground without its particulars reproduced hereunder .

Ground of Appeal

“The Learned members of the Plateau State Election Tribunal erred in law when they relied on Exhibit LH 3 to hold that “the date for the declaration of Bokkos/Mangu Federal Constituency was made on 22/4/07.” As against Exhibit 1 FORM EC. 8E(ii) and this occasion a miscarriage of Justice,”

One issue couched from the above by the cross-appellant reproduced below for determination is as follows:-

“Whether the Result of the Election onto the Bokkos/Mangu Federal constituency was declared on 2/4/07 or 22/4/07”

I hereby summarize the argument of the learned senior counsel for the cross-appellant in arguing this sole issue thus:-

That by the provision of the Electoral Act, 2006 the only method of ascertaining when a result is declared is by the production of DECLARATION OF RESULT FORM issued, by the Returning officer for that election i.e. (EC.8E(ii)) Exhibit 1, that the Returning Officer for the election into the Bokkos/Mangu Federal Constituency is one Umar A.A. Tahir, the 3rd Respondent. That the said Returning Officer declared the result of the election by completing FORM EC8E(ii) tendered in evidence as Exhibit 1 in this case.

That the combined effect of Sections 28(2) (e) and 70 of the Electoral Act, 2006 is that result of the election shall be declared by the Returning Officers at the Federal Constituency collation centre (which was done in the instant case). That the statement on oath made by the Cross-Appellant while preparing his response to the petition can not take the place of FORM EC8E(ii) (Exhibit 1). The statement on oath as to when the result was declared is at best, the learned senior counsel submitted, a documentary hearsay. That the affidavit by the Returning Officer who is the 3rd Respondent is unequivocal that he declared the result on 21/4/07. That the decision of the Tribunal that the only reasonable inference to be drawn from available evidence is that the result was declared on 22/4/07 is contrary to the hard facts before the tribunal. That “inference” can only be drawn from where there is no direct evidence on the issues. (See page 233of the record to see FORM EC8E (or Exhibit 1).

Moreover he surmised that as for Exhibits “B” and “LH3” were not Declaration of Result they are therefore irrelevant to the issue as to the date when the result was declared. Specifically Exhibit “B” at page 246 is INEC FORM EC8(II); while Exhibit “LH3” at page 278 to 279 of the record refers to information from 3’d Respondent and that he issued the certificate of Return. .(See page 234 of the record.) That the further counter-Affidavit upon which Exhibit “B and “LH3” were annexed to should be expunged from the record as not being cognizable by the Election Tribunal and Court practice Direction 2007. (See Paragraph 6 (4) of the practice Direction.) and that similarly the petitioners’ Counter-Affidavit to the Affidavit filed by Umar A.A. Tahir should be expunge from the record, since there is no Provision for this in the practice Direction 2007.

Finally that the Cross-Appeal should be allowed because there is credible and direct evidence in FORM EC8.E (ii) which is Exhibit 1, as to when the election result was declared and that there is a presumption of official Regularity by Section 150 of the Evidence Act.

In response the Cross-Respondents’ counsel in their Brief of Argument submitted as follows (summarily).

That the lower tribunal’s holding is that the result of the election into the Federal Constituency seat for Mangu/Bokkos at the Nation Assembly held on 21/4/07 was declared on 22/4/07 as shown in Exhibit B should not be disturbed. That Exhibit 1, i.e. the declaration of result (dated 21/4/07) issued by the 3rd respondent on EC8.E(ii) and that Exhibit “B” is the collation which is reflected in Exhibit 1; as correctly stated by the cross-appellant senior counsel in his brief of argument (see paragraph 4 at page 7 thereat).

That it is important to note that by the order of sequence of events in Exhibit “B” was collated before Exhibit 1. This is because there are 2 local Government Areas that make up Mangu/Bokkos Federal constituency. Thus, it is not practicable for Exhibit 1 to precede Exhibit “B”. That Exhibit “B” was signed by all the political parties’ agents, including the agent for PDP the party which sponsored the cross-appellant. That all those who signed Exhibit “B” dated their signature “22/4/07.” That Exhibit 1 i.e. FORM (EC8.E (ii)) relied on by the Cross-appellant was signed only by the 3rd respondent. That Exhibit 1 has provision for the names and signatures of party agents but the space is conspicuously left blank.

Counsel for the Cross-Respondents then submitted that as it is Exhibit “B” which all those who ought to sign signed that should be the exhibit that should be relied upon in preference to exhibit 1 which was signed by no one else except by the 3rd Respondent. Exhibit B was what was correctly on relied by the tribunal. He cites Sowemimo V Awobajo (1999) NWLR (Pt. 610) 335.

Learned counsel for the Cross-Respondents furthered his submission by stating that there was ample evidence therefore to support the decision of the tribunal that the result of the election was declared on 22/04/07 (supra). That the evidence consists of Exhibit “A” at page 244-245, Exhibit “B” at page 246 and Exhibit “LH3” at pages 278 to 279. Finally counsel submitted that the tribunal found that the date in Exhibit 1 was wrong and moreover not signed by all concerned. They therefore rightly discountenance Exhibit I and preferred Exhibit “B”

It is trite law Counsel opined that an appellate Court will not disturb the finding of fact of Court of trial or of a tribunal when such finding is supported by evidence on record. This is because an appellate Court does not and will not substitute its own’ view of the evidence for that of the trial Court or tribunal lightly. See cites Iyirhiari V Usho (1999) 4 NWLR (Pt. 597) 4; Eseduwo V INEC (1999) 3 NWLR (Pt. 594) 215. See also Iyirhiaro V Usho (supra) at page 50 paras E and F of the report. In that case this Court held as follows:-

“The trial tribunal after carefully considering the material placed before it preferred the Respondents’ version and came to the conclusion that there was announcement of result on 5/12/ 99 and not 6/12/99 as contended by the appellants. The finding of fact by the trial Court unless such finding is proved to be perverse or it -can not be supported by evidence will not be interfered with.”

I hold the view therefore whilest agreeing with cross-respondents’ counsel that there is indeed ample evidence to show or to prove that the election result in the instant case was declared on 22/4/07. As stated in Iyirhiaro (supra) an appellate Court is always reluctant and/or loathe to disturb the findings of fact based on evidence by the lower Court or tribunal who had the opportunity of taking verbal evidence and watch demeanour of witnesses unless such finding is perverse. In the instant case the finding of the lower tribunal in my respectful view that the result of election held on 21/4/07 into the Federal constituency seat for Mangu/Bokkos at the National Assembly Abuja was declared on 22/4/07 is not perverse. As such, this Court will not disturb that finding of fact.

See further cases. Oyaleke V Alamu (1998) 8 NWLR (Pt. 560) 36; Ayua v Adasu (1992) 3 (NWLR (Pt. 231) 598: Olukoya V

Fatunde (1996) 7 NWLR (Pt. 462) 516; and Gbafe V Gbafe (1996) 6 NWLR (Pt. 455) 417.

In the circumstances and finally putting the reasoning in the main appeal in purview, I hold that the main appeal lacks merit and is hereby dismissed. I affirm the decision of the lower tribunal in petition No. AD/NASN/EPT/3/07 that the petition presented on 22/5/07 in respect of an election result declared on 22/4/07 is statute barred and is incompetent.

Secondly, flowing from the reasoning in the cross-appeal (supra) I also hold that the cross-appeal is unmeritorious and is hereby dismissed.

No costs are awarded and parties to bear their own costs.

---

Other Citations: (2008)LCN/2790(CA)