Alonge Segun V. Mr. Adams Kayode O. & Ors (2008)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J. C. A.
This is an Appeal by the Appellant (who was the petitioner at the National Assembly/Governorship and Legislative Houses Electoral Petition Tribunal sitting at lokoja) against the decision of the National Assembly/Governorship and Legislative Houses Electoral Petition Tribunal sitting at Lokoja as contained in the judgment delivered on 23rd day of July 2007 in petition NO: NAGLH/KG35/2007: ALONGE SEGUN v. Adams KAYODE AND 3 ORS, where it was held that the Tribunal lacks competence to entertain the petition. The Appeal filed by the Appellant is seeking essentially that the election of 1st Respondent, Adams O. Kayode is void and an order for fresh election in Ijumu Constituency of the State House of Assembly, Kogi State. The ruling was entered for the 1st Respondent.
Being dissatisfied with the decision of the Tribunal as contained, in the said judgment, the Appellant has initiated an Appeal by virtue of a Notice of Appeal dated and filed on 13th day of August 2007 containing 3 grounds of Appeal against the judgment of the trial Tribunal.
STATEMENT OF FACTS
The Appellant in the Tribunal below filed a petition and the prayers therein were:-
(i) That the election of the 1st Respondent, Adams O. Kayode is void.
(ii) An Order for fresh election into the Ijumu Constituency of Kogi State House of Assembly
The 1st Respondent filed on receipt of the petition with leave of the court for an Order of enlargement of time within which to file and serve the 1st Respondent’s reply to the petition out of time dated 4th July and filed on 5th July 2007 which was moved on 1th day of July 2007 and granted despite opposition from the petition’s counsel.
The 1st Respondent together with his motion for enlargement of time filed a preliminary objection dated 4th July and filed on 5th July 2007.
The petitioner applied for pre-hearing dated 28th June 2007 and filed on 29th June 2007. The petitioner on receipt of the preliminary objection filed by the 1st Respondent filed 3 counter affidavit dated 11th day of July and filed the same day in response to the preliminary objection.
The 1st Respondent on 17th day of July was allowed by the Tribunal to move his application on preliminary objection praying the Tribunal for the following:-
(i) That the petition was presented after the expiration of the thirty (30) days period prescribed by section
141 of the Electoral Act 2006 (as amended) for the presentation of an election petition under the Act.
(ii) Non-compliance with paragraph 4(1) (a) and 4(4) of the first schedule to the Electoral Act 2006.
(iii) Consequently, this Tribunal lacks jurisdiction to entertain the petition.
The Tribunal sequel to the preliminary objection dismissed the petition and aggrieved the Petitioner as Appellant has appealed to this court.
The Appellant through counsel, Prince Nwafor Orizu filed the Appellant’s Brief on 26/10/07 and which Brief was deemed filed on 30/1/08. He also filed a Reply Brief on 14/2/08 and framed three issues which are as follows:-
(i) Whether the judgment of the Tribunal was not entered in disregard of the date of declaration being 15th of April 2007 instead of 14th April 2007 exhibited by the Respondent.
(ii) Whether the judgment of the Tribunal was not entered in disregard of Section 125 of the Evidence Act and refused to call oral evidence to resolve the conflict in the affidavit evidence.
(iii) Whether having regard to the provisions of paragraph 26(1) of the 1st schedule to the Electoral Act 2006 (as amended) and paragraph 3(6) (e) and (7) (d) and 6(1) of the Election Tribunal And Court Practice Directory 2007, the judgment is not a nullity having been delivered without jurisdiction.
The 1st Respondent through their counsel Mr. Mohammed filed their Respondent’s Brief on 1/2/08 in which two issues were formulated which are:-
(i) Whether the Tribunal’s proceedings of 17/7/2007 and 23/7/2007 in relation to the 1st Respondent’s notice of preliminary objection against the appellant’s petition were taken without jurisdiction or contrary to the Practice Directions applicable thereto, and were therefore a nullity.
(ii) If the answer to the first issue is in the negative, whether the 1st respondent’s preliminary objection vis-a-vis the petition was rightly upheld or sustained by the trial Tribunal.
I shall use the issues as formulated by the Appellant’s Brief since it would best enable me to consider the matter or dispute between the parties more effectively.
ISSUE NO: 1
WHETHER THE JUDGMENT OF THE TRIBUNAL WAS ENTERED IN DISREGARD OF THE DATE OF DECLARATION BEING 15TH APRIL 2007, INSTEAD OF 14TH APRIL 2007 EXHIBITED BY THE RESPONDENT.
Learned counsel for the Appellant submitted that the essence of the decision of the Tribunal on the issue of date was that the 1st Respondent filed Certified True Copy of Form EC8 E (1) which states the date of the declaration of election result as 14th April 2007, and Form EC8C (1) which is the summary of result at the ward level, instead of 15th April 2007 which was in the petitioner’s counter affidavit which is the actual date of declaration in the presence of the petitioner and other eye witnesses.
Prince Nwafor-Orizu of counsel said parties are agreed that the election was held on the 14th day of April 2007 but disagreed on the date of declaration of the result of the election. That while the petitioner contends that the result was declared on the 15th April 2007 and annexed the Form EC8E (1) to that effect from INEC the 1st Respondent had a different view that the result was declared on the 14th day of April 2007, the date of election. That the petitioner before filing his petition applied to the 2nd Respondent for a Certified True Copy of Form EC8E (1) (Form of declaration of result) which the 2nd Respondent, an interested party and a party to the petition as 2nd Respondent failed, refused or neglected to issue to the petitioner. The petitioner also on 4th June 2007 filed a notice to produce which was served on the 2nd Respondent.
Learned counsel for the Appellant further contended that the petitioner relied on the declaration of the result at the constituency final collation centre in his presence and the presence of other persons including the ANPP agent to hold that the result was declared on 15th April 2007. That the Tribunal relied on the Form EC8E (1) supplied by the 2nd Respondent to the 1st Respondent for use despite the protest of the petitioner’s counsel that the 2nd Respondent with held the Form EC8E (1) from the petitioner’s for use despite the application of the petitioner for the Form EC8E (1) dated 7th may 2007 and the notice to produce filed on 4th June 2007. That the petitioner’s counsel protests that there was collusion as to the date by the 1st and 2nd Respondents to injure or defeat the objects of the petition.
Prince Nwafor-Orizu of counsel submitted that where a party withheld a piece of document which the petitioner intended to use in evidence against him and refused to produce the document on application and even when notice to produce under Section 98 of the Evidence Act had been served on him, the party will not be allowed to use the document in evidence against the party that applied for the document. He cited Section 222 of the Evidence Act, Ayogu v. Nnamani (2006) 8 NWLR (pt.981) p. 160 at 193.
Learned counsel for the Appellant went on to say that the Respondents did not obtain the consent of the Appellant nor any leave from the Tribunal before using the document as affidavit evidence. That when a petitioner complied with the regulation of the law by providing the contents of Form EC8E (i) which he applied for and the 2nd Respondent in collaboration with the 1st Respondent or persons unknown to the petitioner refused to issue him and also with . Notice to produce but failed as stated in Buhari v. Obasanjo (2003) 13 NWLR (pt. 941) 262 at 263.
That the petitioner proved his case by providing the contents of the document they refused to produce.
Mr. Mohammed learned counsel for the 1st Respondent and said to establish the fact that the election result was declared on 14/4/07, the 1st respondent exhibited to his notice of preliminary objection a certified true copy of the relevant INEC Form EC8E (1) which was the declaration of result in respect of the election the subject matter of the petition and it was annexed to the notice as Exhibit “A”. That the Appellant had filed a counter -affidavit to the preliminary objection in which he merely averred that the date of declaration of the election result was 15/4/07, without offering any evidence to contradict the content of Exhibit A as tendered by the 1st respondent.
Learned counsel said it is trite that where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess the oral testimony. He cited Ezemba v. Ibeneme (2004) 14 NWLR (pt. 894) 617 at 653; Kimdey &. Ors v. Military Governor of Gongola State &. Ors (1988) 2 NWLR (pt. 77) 445.
Mr. Mohammed stated on that Exhibit A, because of its permanent nature and quality as a certified true copy of the declaration of election result by INEC is unassailable and outweighs by far the weak averments in the appellant’s counter-affidavit. That the tribunal was justified in not calling for any oral evidence in its determination of the date of declaration of the result of the election.
That there was no allegation of collusion or fraud as to the correctness of the date on Exhibit “A” and so the tribunal cannot be said to have acted in violation or disregard of Section 125 of the Evidence Act.
He stated further that even if at all the correctness of the date of issue of Exhibit “A” had required an independent proof (which is denied) the required proof was supplied by the certification provided at the foot of Exhibit “A” which was made by a different and independent officer of INEC. That therefore Sections 125 and 149 of the Evidence Act and the cases of Bida v. Commissioner of Revenue (1972) 1 All NLR (pt. 1) 191; Nnadi v. Azike (1999) ” 10 NWLR (pt. 622) 228; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Dim v. R (1952) 12 WACA 154; R. v. Nungu (1953) 14 WACA 375, cited by the appellant in support of his contentions on this issue are not apposite.
He went on to contend that there was no question of conflict of affidavit evidence before the tribunal. That the 1st Respondent’s counsel, in arguing the preliminary objection, had raised an issue as to the competence in law of the appellant’s counter -affidavit which was also not supported by any written address as prescribed by the relevant Practice Directions paragraph 6(4). He said the tribunal considered this issue and ruled thereon and in that ruling found as a fact that the appellant (as petitioner) had not filed a written address in support of his purported counter-affidavit. Also that the tribunal held that the counter-affidavit was defective as it violated Sections 86 and 87 of the Evidence Act and accordingly struck out the entire counter-affidavit and so it can be taken that there was no counter affidavit and so what is it that was in conflict with the supporting affidavit to the preliminary objection. That the Appellant failed to appeal that which is now fatal.
Learned counsel for the 1st Respondent said assuming though not conceded that the appellant’s counter affidavit was wrongly struck out by the trial tribunal, learned counsel submitted that the so-called conflict of affidavits is more imaginary than real to warrant a need to called for oral evidence. That the authenticity of Exhibit A was never challenged nor put into question before the trial tribunal and the tribunal was therefore entitled to have placed reliance on it in dismissing the petition pursuant to the 1st respondent’s preliminary objection.
The above is in summary the bone of contention in answer to Issue 1 and by implication the main basis for this appeal. The finding and decision of the lower Tribunal which form the grouse of the Appellant’s disquiet is recaptured below in quote:-
”Fortunately or unfortunately, the only evidence available to us of the date of declaration of the said result of the election of the Kogi State House of Assembly in respect of Ijumu Constituency is Exhibit A annexed to the 1st Respondent’s reply to the petition. Exhibit “A” is actually Form EC8E (1) namely the Declaration of result of the said election. It is a certified true copy of the results sheet duly certified by INEC and dated 05/07/07 (as the date of certification). The exhibit shows that the election result was actually declared on the 14″ day of April 2007. We have no better evidence at our disposal from which to ascertain the date of the declaration of the results than the EC8E (1) Form supplied by the 1st Respondent. The Petitioner who contends that the result was declared on the 15/4/07 has made no effort to furnish any evidence, documentary or other wise, which is more credible than the EC8E (1) duly completed and certified by INEC.
By that document from the 14th April 2007 to 15th May 2007 when the petitioner/Respondent filed his petition amounts to more than 30 days. At least it amounts to 31 days going by the provision of section 15(2) of the Interpretation Act… We hold the view therefore that the Petitioner in the instant petition, having filed his petition 31 days after the declaration of result h as violated the provision of section 141 and is therefore out of time”;
I would recast the provisions of Section 141 of the Electoral Act, 2006 on which the Tribunal anchored its findings and decision.
It reads:-
Section 141 of the Electoral Act provides:-
“An election petition under this Ad shall be presented within thirty (30) days from the date the result of the election is declared”;
Also relevant to the discourse in answer to the question posed in this issue is Section 125 Evidence Act which provides Section 125 Evidence Act:-
When any document bearing a date had been proved, it is presumed to have been made on the day of which it bears date, and if more documents than one bear date on the same day, they are presumed to have been executed in the order necessary to effect the object for which they were executed, but independent proof of the correctness of the date will be required if the circumstances are such that collusion as to the date might be practiced, and would, if practiced, injure any person, or defeat the objects of any law.
In the case of Bida v. Commissioner of Revenue (1972) All NLR 195 held by the Supreme Court had held:-
”Section 43(3) of the Personal Tax Law, means no more than that a certificate produced under the subsection is enough evidence, if the defendant adduces no evidence so rebut it, on which the court could give judgment for the plaintiff; it does not stop the defendant in any way from calling evidence to challenge the assessment not does it compel the court to give judgment for the plaintiff and it is therefore not an infringement of the requirement for a fair hearing laid down by section 22(1) of the Constitution”.
Such a certificate necessarily implies that there was an assessment and that it was duly served and the onus is on the defendant, if he wishes to attack the certificate on either of these grounds to adduce evidence accordingly Bida v. Commissioner of Revenue (1972) All NLR 195 per Lewis JSC.
By virtue of Sections 115, 148 and 149 of the Evidence Act, there is the presumption that any election result declared by a returning officer is authentic and correct. The burden is on the person who denies its correctness to rebut its correctness. Ayogu v. Nnamani (2006) 8 NWLR (pt. 981) 160 at 194 – 196; Jalingo v. Nyame (1992) 3 NWLR (pt. 231) 538.
By virtue of the combined effect of the provisions of sections 136 and 137 (1) (2) of the Evidence Act, the burden of proof of a fact in issue lies on the person who will fail if no evidence is given by either side, regard being had to any presumption that may arise from the pleadings. Where sufficient evidence is adduced by the party who asserts the burden of proving the contrary then shifts to the other person against whom judgment will be given if no further evidence is adduced. See Ayogu v. Nnamani (2006) 8 NWLR
(pt.98l) 160 at 186 – 187; Kodilinye v. Odu (1935) 2 WACA 336; Rotimi v. Saforiji (1999) 6 NWLR (pt. 606) 305; Kalgo v. Kalgo (1999) 6 NWLR (pt. 608) 639.
The Appellant had made a lot of fuss on their Notice to produce a certified true copy of the election result that is Form EC8E (1) from the 2nd Respondent and which Notice the 2nd Respondent failed to honour. That this failure the 2nd Respondent was estopped from using the same document for the purpose of the adverse party.
It is correct that by virtue of Section 222 of the Evidence Act, when a party refuses to produce a document which he has had notice to produce he cannot afterwards use the documents as evidence without the consent of the other party or the order of the court. Ayogu v. Nnamani (2006) 8 NWLR (pt. 981) 160.
That argument would be difficult to sustain in the present circumstance as the necessary leg to place the contention is absent.
Kimdey v. Military Governor, Gongola State (1988) 2 NWLR (pt. 77) 445 SC.
Where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony. This is because documentary evidence being permanent in form is more reliable than oral evidence. see Fashanu v. Adekoya (1976) 6 SC 83; Ezemba v. Ibeneme (2004) 14 NWLR (pt. 894) 617.
Where the documentary evidence before the court goes both ways and one side has a more substantial support of the oral testimony before the trial court, that set of documentary evidence which has more substantial support of the oral testimony outweighs the other, and if the trial court prefers that set of documentary evidence; the appellate court should not interfere. Kimdey v. Military Governor, Gongola State (1988) 2 NWLR (pt. 77) 445.
Section 222 of the Evidence Act:-
When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the court.
Section 149(d) Evidence Act:-
The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume:-
(a) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds It.
Election result forms given to police security men cum observers at the polling book, as dictated by the provisions of paragraph 33 of Schedule 4 to Decree No.5 of 1999, Constitutes an internal solid in inbuilt control mechanism or measures designed to ” unravel unlawful cancellation, alterations, mutilations and juggling of figures during elections and such results as produced by the police are the best and tenable available source to test the veracity of the parties’ contention on the issue of what infact were the actual scores made by the contending parties. This even the Appellant failed to proffer. See Nnadi v. Ezike (1999) 10 NWLR (pt. 622) 228 at 238.
It has to be stated at the risk of over flogging that a person is taken to intend the natural and probable consequences of his acts. See Dim v. The Queen (1952) 14 WACA 154; Nungu v. The Queen (1953) 14 WACA 379. I do not see the foundation on which I can answer this question in Issue in favour of the Appellant since the trial Tribunal could not have made a finding along the assertion that the result of 15th April 2007 as against 14th April 2007 put forward by the Respondents. This issue is answered in the negative.
ISSUE NO 2
WHETHER THE JUDGMENT OF THE TRIBUNAL WAS NOT ENTERED IN DISREGARD OF SECTION 125 OF THE EVIDENCE ACT AND REFUSED TO CALL ORAL EVIDENCE TO RESOLVE THE CONFLICT IN THE AFFIDAVIT EVIDENCE OF THE PARTIES.
Learned counsel for the Appellant said the presumption created by Section 125 Evidence Act is not a conclusion presumption as it is rebuttable presumption which applies where collusive or fraud is suspected like this case. That when any document bearing a date has been proved, it is presumed to have been made on the day on which it bears date, and if more documents than one bear date on the same day they are presumed to have been executed in the order necessary to effect the object for which they were executed, but independent proof of the correctness of the date will be required if the circumstances are such that collusion as to the date might be practiced and would if practiced injure any person, or defeat the objects of any law. He referred to Bida v. Commissioner of Revenue (1972) 1 All NLR (pt. 1) 191.
Learned counsel for the Appellant submitted further that Section 125 of the Evidence Act provides that where a date is in issue as the instant case, proof of collusion or fraud will be admitted to rebut the presumption. He said the tribunal in considering the preliminary objection failed to consider the affidavit evidence of the petitioner where the actual date of declaration of the result at the constituency fails collation centre in the presence of the petitioner and other eye witnesses was stated. That the tribunal in a hurry construed Form EC8C (i) in summary of result from words to mean the declaration. That the Form EC8E (1) has been held severally to have been altered by INEC staff in conclusion with the Respondents.
He cited Nnadi v. Ezike (1999) 10 NWLR (pt. 622) 228 at 238; Omoboriowo v. Ajasin (19,84) 1 SCNLR 108 to the effect that forms given to the Police security men cum observers, agents at the polling booth as dictated by the law constitute counter-part of election results, and constitute primary evidence.
Learned counsel stated on that Section 149 of the Evidence Act creates an obligation that once the person in possession of a document refuses to produce it, the court is to presume the existence of the facts as supplied by the petitioner, regard being had to the common course of natural events in relation to the facts of the particular case. It is the duty of the court to presume that the document which the petitioner applied for and also gave a notice to produce but the 2nd respondent failed to produce, that the evidence which could not be and is not produced would, if produced, be unfavourable to the petitioner. That this court should hold that a man is presumed to intend all the consequences likely to follow directly from his conduct. He cited Dim v. R. (1952) 12 WACA 154 at 155; R. v. Nwogu (1953) 14 WACA 379; Chairman National population Commission v. The Chairman, lkere Local Government & 2 Ors. (2001) 7 5C (pt. 111) 90.
1st Respondent’s counsel said in response that the issue raised is as to the competence of the petition before the tribunal and purely a question of law and Exhibit “A” in the absence of any other evidence to the contrary and of the same quality, offered a conclusive proof of the fact that the result of the election was declared on 14/4/07 and that the petition having been presented on 15/5/07, fell outside the 30 days prescribed under Section 141 of the Electoral Act, 2006, for presenting on election petition. That the petition was therefore incurably defective and incompetent ab initio. He referred to Ogbebor v. Danjuma & ors. (2003) 15 NWLR (pt. 843) 403 at 426 – 427; Omeh v. Okoro (1999) 8 NWLR pt. 614) 356 at 373.
The plank on which the Appellant’s counsel is stressing that there was need for an oral evidence to resolve their perceived conflict in affidavit evidence between the supporting affidavit of the preliminary objection and the counter-affidavit of the appellant before the lower court. In their counter affidavit it was deposed by one Egwoba Daniel Esq., legal practitioner in the Law Firm of Orji Nwafor-Orizu and Associate$ as follows:-
- That I have the consent and authority of both Orji Nwafor -Orizu, the petitioner’s counsel and petitioner to depose to this affidavit.
- That Prince orji; Nwafor-Orizu Petitioners counsel has shown me the Respondent’s preliminary objection and I have read it and 1was informed at about 12.00 pm on 9th July, 2007 within the premises of High Court Lokoja and I verily believe them to be true as follows:-
“(1) That it is not true that the Petitioner did not comply with the provision of Section 141of the Act; 2006 (as evidenced) as the Petition was filed on the 1st” May 2007 given 30 clear days as the election result was declared on the 1st” April, 2007. The Election Returning Officer could be invited to clear the air”.
Where affidavits conflicts on a disputed material fact, a court called upon to resolve an issue of fact sought to be established by the conflicting affidavits should not resolve such issue merely on the conflicting affidavits but should hear oral evidence from the deponents and such other witnesses as the parties may be advised to call. See NPC v. Ikere Local Government (2001) 7 SCNJ 418 per Ayoola JSC; Akinsete v. Akindutire (1966) All NLR 137; Government of Ashanti v. Korkor 4 WACA 83.
In deciding whether or not the contents of two documents are conflicting, the court must look at the controversy in the particular case before it. This is because where, for example, the conflicts in affidavits are not material to the case before the court or where the facts are inadmissible, or are flimsy and are on an issue irrelevant and alien to the matter before the court, the need to call oral evidence to resolve the conflicts would not arise per Tobi JSC in LSDPC v. Adold Stamm Int’l (Nig.) Ltd. (2005) 2 NWLR (pt.910) 603 AT 617, 621; Falobi v. Falobi (1976) 9 – 10 SC 1; Okupo v. F.B.I.R. (1974) All NLR 314; Garba v. University of Maiduguri (1986) 1 NWLR (pt. 18) 555.
Even from the tone of the counter affidavit it is easily discernible that the petitioner/Appellant is not sure footed or convinced about what he intends to persuade either the trial tribunal or this appellate to see his point of view. I say so because the last sentence in the counter affidavit paragraph 3 (1) attests to my impression and it says thus”
“The Election Returning Officer could be invited to clear the air”.
Therefore the Tribunal was right in not allowing itself be persuaded by the flimsy posturing into the unnecessary and potentially fruitless venture of calling for the oral evidence of the Election Returning Officer to counter the standing properly established documentary evidence. It is in the light of all the above stated that I resolve this issue No.2 in favour of the Respondents
ISSUE NO.3.
WHETHER HAVING REGARD TO THE PROVISIONS OF PARAGRAPH 26 (1) OF THE 1ST SCHEDULE TO THE ELECTORAL Act 2006 AND PARAGRAPHS 3 (6) (c) AND 7 (d) AND 6 (1) OF THE ELECTION TRIBUNAL AND PRACTICE DIRECTIONS, 2007, THE JUDGMENT IS NOT A NULLITY HAVING BEEN DELIVERED WITHOUT JURISDICTION.
Learned counsel for the Appellant said that by virtue of paragraph 3 (6) (e) and (7) (d) of the practice directions, also paragraphs 26 (1) of the first schedule to the Electoral Act 2006 (as amended), the tribunal lacked jurisdiction to take a motion outside the pre-hearing session without leave. He cited Omeh v. Okoro (1999) 8 NWLR (pt. 615) 356 AT 358.
He further stated that the hearing and determination of objections in this matter were heard not at the pre-hearing or with the leave of the tribunal or court and therefore the matter was heard without jurisdiction. That the’ 1st Respondent and the trial tribunal in the exercise of their duty ought to comply strictly not only with the Electoral Act as it relates to the manner of presentation of defence to the petition, but also with the Court of Appeal Rules and the Practice Directions made by the President of the Court of Appeal pursuant to Section 285 of the 1999 Constitution. He referred to Nura Khalil v. Yar’Adua &. ors (2003) 16 NWLR (pt. 847) 446 at 488.
Learned counsel for the appellant stated on that the Practice Directions made by the president of the Court of Appeal in relation to Electoral Act 2002 pursuant to Section 285 of the 1999 Constitution is in pari materia with the Practice Directions made by the president of the Court of Appeal in relation to 2006 Electoral Act (as amended) that even if paragraph 3 (6) (C), and 7 (d) and paragraph 6 (1) of the Practice Direction, paragraph 26 (1) of the first schedule to the Electoral Act 2006 (as amended) is part of the Electoral Act and should be complied with strictly.
Mr. Mohammed of counsel for the 1st Respondent said that the tribunal acted within its jurisdiction in hearing the 1st respondent’s preliminary objection against the petition. That the Notice of preliminary objection of the 1st Respondent was properly presented pursuant to paragraph 49 (2) of the First Schedule to the Electoral Act 2006 (as amended). That the tribunal had jurisdiction to determine whether or not it had jurisdiction to adjudicate with respect to the election petition. He cited Mainarwaro v. Gariba (2001) 7 NWLR (pt. 711) 40; Bankole v. Dada (2003) 11 NWLR (pt. 830) 174; Obasanya v. Oruolaja (2001) 2 NWLR (pt. 697) 266; Ogbebor v. Danjuma &. Ors (2003) 15 NWLR (pt. 843) 403 at 432 – 433.
Mr. Mohammed further contended that the tribunal’s action was also in consonance with paragraph 49 (5) of First Schedule to the electoral act, 2006. That paragraph 26 (1) of the First Schedule to the Electoral Act, 2006 is permissive and not mandatory as the operative word is “may” in the said paragraph.
Learned counsel for the Appellant stated on that in the alternative to the arguments presented above that the tribunal’s proceedings of 17/7/07 and 23/7107 in relation to the 1st respondent’s notice of preliminary objection against the appellant’s petition constituted a “pre-hearing session” within the meaning of the relevant Practice Directions and that for this additional reason, the proceedings cannot be classified as falling within the ambit of a “pre-hearing session” as envisaged by the Practice Directions since the tribunal was vested with jurisdiction ab initio under both the Constitution and the electoral law to hear and determine petitions and or matters arising therein and any defect in the “timing” of the proceedings can only be treated as a mere irregularity which does not go to the root of the tribunal’s jurisdiction and statutory power of adjudication vis-a-vis the 1st respondent’s preliminary objection.
Learned counsel for 1st respondent stated further that the date of presentation of the appellant’s election petition which gave rise to the preliminary objection in the first place could not have been made the subject matter of any application for amendment by the petitioner (appellant) before the tribunal. Hence, the dismissal of the petition did not occasion any miscarriage of justice against the appellant. That the presentation of the petition on 15/5/2007 (after the expiry of 30 days as from the date of declaration of the election result) was a patent defect on the face of the petition. That it would have been tantamount to a sheer exercise in futility, an unpardonable waste of time and even injustice for the tribunal to temporarily put aside the preliminary objection, and wait for the petitioner/appellant to exercise his otherwise severally restricted right to amendment under the electoral law, before proceeding to take the preliminary objection and dismissing the petition for its incompetence as already canvassed in the preliminary objection as justice delayed is justice denied.
In reply on points of law learned counsel for the Appellant contended that the Practice Direction 2007 provides that matters including objections on points of law shall only be made and of its commencement and there after a Report will be issued to guide the trial. That these were not done in the instant appeal before the tribunal went straight into the motion for preliminary objection being a point of law without a pre-trial conference, an action without jurisdiction. He referred to paragraph 3 (i), (7) of the Practice
Direction and also paragraph 6 (1) which provide that no motions shall be moved and all motions shall come up at the pre-hearing session except with leave of ,court and that if there is incompetence the case will be struck out. He cited Owodunmi v. Celestial Church (2000) 2 SCNQR 1408 at 1426 -1427.
Any defect in competence of a court is fatal, and ultimately affects the jurisdiction of the court to entertain the matter. The existence or absence of jurisdiction goes to the very root of the matter so as to sustain or nullify the court’s decision or order in respect of the relevant subject matter. It can be raised at any stage of the proceedings, and must be resolved first because it is a threshold issue, which relates to the competence of the suit.
Ogbebor v. Danjuma (2003) 15 NWLR (pt. 843) 403 at 432 – 433; Maiwarwaro v. Garba (2001) 1 NWLR (pt. 711) 40; Obasanya v. Omolaja (2001) 2 NWLR (pt. 697) 266; Bankole v. Dada (2003) 11 NWLR (pt. 830) 174
The raising of the issue of jurisdiction being fundamental and a threshold situation, it cannot be treated like any other motion or application to which the strict provisions of either the Practice Directions or the Electoral Act would apply. It is therefore futile to wave the flag of pre-hearing conference in relation to the preliminary objection challenging competence or jurisdiction because of the uniqueness of the matter of whether or not a court has jurisdiction. This is so because if the court lacks jurisdiction at whatever point that arises the action ceases to exist and so it cannot be contended that such an issue must follow the normal trend of events of motions or interlocutory issues.
The spirit of the law relating to election petition is that as much as possible, petitions should be given expeditious adjudication to enable the parties to know the result of the election in which they participated. Balogun v. Odumosu (1999) 2 NWLR (pt. 592) 590.
By virtue of Section 132 of the Electoral Act, 2002, an election petition shall be presented within thirty days (30) days from the date the result of the election is declared. See Ogbebor v. Danjuma (2003) 15 NWLR (pt. 843) 403; Alataha v. Asin (1999) 5 NWLR (pt. 601) 32.
Compliance with statutory provision 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 provision is fatal and in such a case the court has no jurisdiction to entertain the petition. Ogbebor v. Danjuma (2003) 15 NWLR (pt. 843) 403 at 433; Out v. INEC (1999) 5 NWLR (pt. 602) 250; Nnonye v. Anyichie (1989) 2 NWLR (pt. 101) 110.
There is a well settled presumption of correctness of the findings of fact of courts below and the presumption must be displaced to reverse the finding of fact. See Kimdey v. Military Governor, Gongola State (1988) 2 NWLR (pt. 77) 445; Williams v. Johnson 2 WACA 253.
Having stated the relevant legal principles and related them to the facts on ground it is clear to me that the academic grand standing of the Appellant in the matters raised in this issue have flown through the window as indeed the findings of the court below cannot be faulted with what was available to them and which materials are seen at this appellate stage. This issue is resolved in favour of the Respondents as decision of the Tribunal and the reasoning’s upon which it reached that decision cannot be upset. From all I have stated I hereby dismiss this appeal and affirm the decision of the Lower Court.
I make no order as to costs.
Other Citations: (2008)LCN/2698(CA)
