Godswill Otu Ekasi Otu V. Independent National Electoral Commission (Inec) & Ors (1999)
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AKPABIO, J.C.A.
This was an appeal against a decision of the Local Government Election Petition Tribunal in respect of Akwa Ibom State sitting at Uyo, under the Chairmanship of Omokri, J. delivered on the 26th January, 1999 in petition No. LGET/AK/23/98. Wherein the petition of the petitioner was struck out for being incompetent, in that it was filed outside the prescribed time. The petitioner being dissatisfied with that ruling has now appealed to this court. From henceforth the petitioner will in this judgment be referred to as the “appellant.”
At the said Local Government election which took place on the 5th December, 1998, the appellant contested for the post of Councilor under the platform of the “All Peoples Party (APP) at Eket Urban Ward 11. Two other candidate contested against him viz.:- Effiong Akpan Akpan on, the platform of Alliance for Democracy (AD) while the third, one Isang Godwin Isaiah (now the 3rd respondent) contested on the platform of the Peoples Democratic Party (P.D.P.). Even though, according to the appellant, credible elections took place at only five or the seven polling stations in the ward, while the elections at the other two were disrupted, the returning officer nevertheless returned the 3rd respondent (Isang Godwin Isaiah) as the duly elected candidate with the majority of lawful votes: even without declaring the results in the two polling stations in which voting was disrupted. He therefore field his petition against the election as already set out above.
However, after pleadings had been filed, but before commencement of hearing an application on notice dated 14th January, 1999, was brought on behalf of the 3rd respondent praying the tribunal for an order.
‘(a) Setting aside or dismissing the petition of the petitioner for being incompetent.
(b) And for any other order as this honourable court may deem fit to make in the circumstance.’
The ground for the alleged incompetence was stated to be
“that the petition was statute-barred as at the time when the petitioner filed same”.
In a 6-paragraph affidavit in support of the motion, it was stated that under the electoral laws, a petition against the result of a Local Government Election has to be filed within 14 days from the date of the election, But in the instant case it was discovered that the petition was filed with the tribunal on 28th day of December, 1998, while the result of the said election was declared by 2nd respondent on 5th December, 1998. In effect between the date of the result and the date of filing of the petition 23 days had elapsed.
On 14th day of January, 1999, another application similar to that filed on behalf of the 3rd respondent was also filed on behalf of 1st and 2nd respondents, asking that the petition of the petitioner be dismissed for being “time-barred”.
In a counter-affidavit of seven paragraphs with eleven sub-paragraphs filed on behalf of the appellant he did not dispute the date of filing his petition, nor the date on which the election was held. Rather, he continued to contend that the voting in two or the seven polling stations in his ward was inconclusive, and so the 3rd respondent was wrongly declared as the winner.
In due course, the application came for hearing before the tribunal on 22nd January, 1999 after which ruling was reserved to 26th January, 1999.
On 26th of January, 1999, the tribunal came out with a six-paged unanimous ruling in which the petition of the appellant was held to be incompetent, and as struck out with no order as to cost.
The petitioner being dissatisfied with the above decision has now appealed to this court as the Constitutional Court on four grounds from which three issues were formulated as follows:
Issues for determination:-
(I) Whether the question whether the result of the said election was declared in a manner that is inconsistent with the provisions and requirements of Decree No. 36 of 1999 and particularly, paragraph 32 of Schedule 4 to Decree No. 36 of 1998, is a question of law to be determined in the determination of the question whether the petition No, LGET/AK/23/98, was filed within 14 days from the date on which the result of the election is declared and whether the Local Government Council Election Tribunal of Akwa Ibom State, Uyo, has jurisdiction to hear and determine the said petition?
(II) Whether the constitutional, natural and fundamental rights of the petitioner/appellant as a candidate the election held on 5/12/98, under Decree No. 36 of 1998, have not been bruised and breached by the respondents also and whether the result of the said election purportedly declared by the 2nd respondent could be said to be the decision of the final returning officer at the said election under paragraph 36 of Schedule 4 to Decree No. 36 of 1998, read together with paragraph 32 of Schedule 4 to Decree No. 36 of 1998, especially, regarding the declaration of scores of candidates and the return or a candidate as Councilor-elect for Eket Urban Ward II, “Eket?
(III) Whether the petitioner/appellant is not entitled to any relief upon the failure by the ward returning officer to declare the result of the said election to the position of Councilor for Eket Urban Ward II. Eket, at the Ward Collation Centre at Idua Primary School, Eket, on 5/12/98, or on any other date; and, or, whether this honourable court is not entitled to have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Constitutional Court, that is to say, this honourable court as court of first instance and may rehear the case in whole and interprete sections 81(1)(a), 82, 84(3), 85(1) and 99(1) of Decree No. 36 of 1998, read together with paragraphs 30(1) & (4), 31, 32, 36 and 39 of Schedule 4 to Decree No, 36 of 1998, in the context of his particular case?”
In reply to the above the 1st and 2nd respondents formulated no issues, but their learned counsel with leave of this court was allowed to reply orally. The 3rd respondent on the other hand, filed a brief in which three issues were formulated as follows:-
Issues for determination:-
2.1. Whether there was denial of fair hearing to the petitioner by the Election Tribunal in view or the opportunity given to the counsel to address the tribunal on the issue of its jurisdiction to entertain the petition.
2.2. Whether the Local Government Election Tribunal was justified in using the averments in the petition for determining whether it has the jurisdiction to hear the petition or not rather than relying on affidavit evidence when the issue of jurisdiction was raised.
2.3. Whether section 82 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36, 1998 contemplates that the requirement that the petition must be filed within 14days of declaration of the result is restricted to returns made by the returning officer or it covers any declaration made whereby a person other than the petitioner is put forward as having been returned”.
I have carefully considered all the issues formulated above by the appellant and must say quite frankly that they have been a colossal waste of judicial time, as they have no bearing whatsoever with the issues in controversy, namely whether the period between the declaration of results on 5/12/98 and filing the petition on 28/12/98 was more than 14 days or not.
Appellant completely left this simple arithmetical calculation and began to quarrel with the returning officer, who normally should have been made a party to the petition, but was not so joined. (See case of Gbadamosi v. Azeez (1998) 9 NWLR (Pt. 566) 471). He also failed to state any date on which the result was declared. In effect, the date stated by the respondents as the date on which election result was declared stood uncontradicted and was rightly believed by the tribunal.
It is our law that an averment in an affidavit which is not contradicted or denied is deemed admitted. (See Alagbe v. Abimbola (1978) 2 S.C. 39). This tribunal also found as a fact that the petitioner himself had in paragraphs 9, 10 & 11 of his petition averred that the 1st and 2nd respondents had “published” or declared a tailored result in favour of 3rd respondent on the date of the election on 5/12/98. It was self-contradictory therefore for the petitioner to come to the tribunal and argue that there was no declaration made on the date of the election.
The tribunal also held, rightly in my view, that if it was true, as contended by the petitioner that there was no declaration of a winner on date of election, it would mean that no cause of action had arisen before the petitioner filed his petition, meaning that the petition was incompetent and should be struck out for disclosing no cause of action. In other words, this was a case of “tail you lose, head you lose,” and I agree with them.
Finally, one must state that it was a mandatory provision of section 82 of Decree No. 36 of 1998 that “An election petition under this Decree shall be presented within 14 days from the date on which the result of the election was declared.”
In conclusion, I must refer to the case of Nnonye v. Anyichie (1989) 2 NWLR (Pt. 101) p. 110 at 112, cited by learned counsel for the respondents and also relied upon by the tribunal, in which the effect of failure to file a petition within prescribed time was stated by the Court of Appeal to be as follows:-
“Compliance with statutory provision as to time within which to file an election petition is a fundamental pre-condition, breach of which is incurable, and failure to comply with the statutory provision is fatal and in such cases, the court has no jurisdiction to entertain such a petition.”
In view of the foregoing, I accept the contention of the respondents that an election result was declared at Atabong Ward II on date of election. 5/12/98. But whether it was the correct result that was declared or not was a different matter. If no result had been declared, the appellant would have had nothing to quarrel about, and so go to the Election Tribunal. That being the case, I am satisfied that the said petition was filed within 28 days instead of 14 days, from date of the election as required by section 82 or the Decree.
That being the case, the said petition became time-barred and incompetent and the tribunal had no jurisdiction to entertain it. It was therefore, rightly struck nut by the tribunal.
This appeal therefore fails and is hereby dismissed with costs of N3,000.00 in favour of the respondents.
Other Citations: (1999)LCN/0473(CA)
