Hon. Patrick Obahiagbon V. Rasaq Bello Osagie & Ors. (2009)
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CHIOMA EGONDU 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 22nd of April 2008. The Appellant in Appeal NO.CA/B/EPT/122/08 Patrick Obahiagbon was the 3rd Respondent at the lower Tribunal. He was the Candidate of the Peoples Democratic Party (PDP) for Oredo Federal Constituency in Edo State held on the 21/4/07.
The 1st Respondent in the same appeal NO.CA/B/EPT/122/08 Rasak Bello Osagie was the Candidate of 2nd Respondent, the Action Congress (A.C.). The 3rd to the 18th Respondents in the 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. Dissatisfied with 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:
- “The 3rd Respondent was not duly elected by a majority of lawful votes cast at the election.
- The election to the House of Representatives for Oredo Federal Constituency of Edo State, by the 1st Respondent on 21/4/07 was invalid by reason of corrupt practices;”
He then sought the following reliefs:
“(a) That it be determined that the 3rd Respondent herein was not duly elected or did not score a majority of lawful votes cast at the House of Representative Election for Oredo Federal Constituency Conducted by the 1st Respondent on 21/4/07 and ought not to have been returned as the winner;
(b) That it be determined that save for wards 8 and 12, the votes allegedly scored or credited to the 2nd and 3rd Respondents in all the other Wards in Oredo Federal Constituency are invalid on grounds of corrupt practices, fraud, ballot box stuffing and arbitrary allocation of votes and ought to be set aside
(c) That it be determined that the Petitioners had the majority of lawful votes cast at the House of Representative Election held on 21/4/07 for Oredo Federal Constituency and the 1st Petitioner ought to have been returned or declared as winner by the 1st Respondent.
ALTERNATIVELY
(i) That it be determined that the House of Representatives Election to Oredo Federal Constituency conducted by the 1st Respondent on 21/4/07 was substantially marred by corrupt practices and is liable to be annulled and the 3rd Respondent’s return as winner set aside;
(ii) That it be determined that the 1st, 4th – 15th Respondents did not comply with the Electoral Act 2006 in the conduct of the House of Representative Election for Oredo Federal Constituency and the return of the 3rd Respondent as winner ought to be annulled and set aside. An order nullifying the House of Representative Election for Oredo Federal Constituency conducted by the 1st Respondent on 21/4/07 and directing the conduct of a fresh election in the constituency save for Wards 8 and 12.”
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 921 of the record of appeal held that the Petitioners had proved their case
“After the deduction of the invalid votes, AC will be left with 3904 to PDP 2282. Premised on the above, we hereby hold that the Petitioners have made out a case which entitles them to a declaration that they have scored a majority of lawful votes cast at the election and ought to be returned or declared as the winner of the election. This tribunal hereby declares as follows;
(i) the 3rd Respondent did not score the majority of lawful votes cast at the election. His election and return at the election is therefore invalid
(ii) the 1st Petitioner scored majority of lawful votes cast at the election and is therefore declared winner of the election to the Oredo Federal Constituency.”
It then proceeded to nullify the election and return of the Appellant (3rd Respondent at the tribunal) and declared the 1st Respondent (1st Petitioner at the lower tribunal) as winner.
Dissatisfied with the Judgment, the Appellant appealed to this Court. In his original Notice of Appeal dated 5th day of May, 2008, and filed same day, the Appellant had three grounds of Appeal. Later, by the leave of this Court, brought four additional grounds, making it seven grounds of Appeal, from which he formulated, Three Issues for determination;
i. Whether their Lordships of the Election Tribunal acted lawfully and correctly in Law when they nullified the votes and election of the Appellant on ground of malpractices of excess votes.
ii. Whether their Lordships of the Election Tribunal acted lawfully when they nullified 64,632 votes from the votes cast and Credited to the Appellant on the ground of recount of votes cast at the election, conducted by the Petitioners/Respondents’ Counsel without any order of the tribunal first sought and obtained in the proceedings and whether the final order of the Tribunal first sought and obtained in the proceedings and whether the final order issued by the tribunal is valid in Law.
iii. Whether their Lordships of the Election Tribunal acted correctly in Law when they nullified the election of the Appellant on the ground of alleged malpractice of “excess votes” purportedly recorded by INEC officials in favour of the Appellants when these statutory and compulsory Respondent officials of INEC were neither joined, heard nor given opportunity of hearing by the tribunal before the decision thereof.
iv. Whether the Petition of the 2nd Respondent was competent when it was filed outside the statutory period.
The Peoples Democratic Party (PDP) which was the 2nd Respondent at the lower Tribunal also appealed against the Judgment in appeal NO. CA/B/EPT/123/08 and therein raised issues for determination.
The Petitioners at the lower Tribunal (1st & 2nd Respondents herein) as well as 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 A.S. Awomolo SAN in his issue No.4 raised the issue of jurisdiction.
Wale Olanipekun SAN learned Counsel for the 1st & 2nd Respondents adopted the issues formulated by the Appellant for determination, C.O. Ihensekhien for the 4th – 18th Respondents adopted the same method concerning the issues for determination.
I will adopt the issues identified by the Appellant’s Counsel already set out above in the Consideration of this appeal. I will start with issue No.4, for the simple reason that it raised the issue of jurisdiction i.e. “Whether the Petition of the 2nd Respondent was competent when it was filed outside the statutory period.” It is trite that jurisdiction is a threshold issue which must be decided as soon as it is raised, and it may be raised at any stage of the proceedings and even on appeal. Where a Court lacks jurisdiction, no matter how well the trial is conducted, the trial would be a nullity. See CHIEF ELIGBE OMOKHAFE (2004) 12 SCNJ. Page 106.
ELABANJO V. DAWODU (2006) 6 SCNJ 204.
The issue of Jurisdiction will be considered and dealt with first, even though it is the 4th and last issue distilled for determination. The disposal of this issue one way or the other will affect the entire appeal. If I find that the issue of Jurisdiction is well within the Law, this Court will have no jurisdiction to go into the merit of this appeal. If on the other hand the issue of jurisdiction is misconceived, I will then go into the main appeal, and deal with the other issues for determination. As the final Court in election matters other than the Presidential Election, the disposal of this issue would affect the appeal. Where an appeal is based on several grounds which include a ground raising issue challenging jurisdiction on a firm ground before the Court of Appeal sitting as a final Court in an Election Petition appeal, it is unnecessary to consider arguments and decide other issues raised in the appeal after dealing with the issue of jurisdiction. See ALH. BARI BUDO NUHU V. ALH. ISOLA ARE OGELE (2003) 12 SCNJ. 158.
It is the case of the Appellants that the 1st Appellant was declared winner on the 21st of April 2007 the day the election was held. The 2nd Respondent filed the petition on the 21st of May 2007 i.e. on the 31st day, and therefore strayed from the 30 days provided for under Section 141 of the Electoral Act 2006. They cited several authorities to drive home this point.
The 1st & 2nd Respondents on their part argued that since the last day was a Sunday regarded as a “work free day”, they were within the ambit of the law to have filed the Petition on Monday the 21st May 2007 the next working day. They also cited numerous authorities to buttress this stand.
Section 141 of the Electoral Act 2006 provides as follows:
“An Election Petition under this Act SHALL be presented within Thirty (30) days from the date the result of the election is declared.” (underlining mine for emphasis).
All Counsel in this appeal conceded that the result was declared on the 21/4/07, hence the Respondents concentrated on the issue that since the last day fell on Sunday, a non working day, that the Petition filed on the 21st of May 2007 the following day was well within the Law.
To this end Exhibit 62 an earlier document by INEC form EC8A ii which bore 24th of April 2007 comes into play. Exhibit 62 is not the final document by INEC with which it declared the said result. The final document by INEC declaring the result is what is relevant for the purpose of interpreting Section 141 of the Electoral Act 2006 which provides for the date the result is declared.” If therefore the final document by INEC is in conflict with any of its earlier documents for the purpose of declaration of results of Candidates, the later document supersedes the former for the purpose of determining the day the result was declared in this matter.
I have carefully considered and studied the arguments and authorities in the briefs relied on by the parties.
There is no doubt that the said election was declared on the 21st of April 2007. It is also not in doubt that the Respondent filed his Petition at the lower tribunal on the 21st of May 2007 i.e. 31days after the declaration of the said result.
I am aware of the decision of this Court in CA/B/EPT/221/08 PATRICK IKHARAIALE & ANOR. V. THEOPHILUS OKOH & ORS. delivered on the 23rd of April, 2009, and other decisions of this Court on this issue. The facts and circumstances of that case are very similar to this. I have therefore decided not to go into details concerning arguments of Counsel, and detailed analysis of the issue of jurisdiction to avoid repetition. I see no cogent reason, or any reason whatsoever to depart from that Judgment.
In the circumstance of this case, I hold that time began to run on the 21st of April 2007, the day the result was declared, and that time ended on the 20th of May 2007. The filing of the Petition on the 21st of May 2007, a day outside the statutory period has therefore resulted in fatal consequences on the Petitioner (1st Respondent herein). The Petition filed on the 21/5/07 having been filed on the 31st day has regrettably strayed outside the period stipulated by Section 141 of the 2006 Electoral Act. The fact that the last day fell on a Sunday does not hold water to justify this lapse.
The petition is statute barred and section 141 of the said Electoral Act does not permit extension of time.
If the Petition is statute barred, it means the lower tribunal lacked the competence to entertain the Petition. The trial and the subsequent Judgment is an exercise in futility no matter how well conducted.
The said decision is a nullity as well as the consequential orders.
The Petition filed by the 1st & 2nd Respondents at the Tribunal below on the 21st of May 2007 having been struck out. I make no order as to costs.
Other Citations: (2009)LCN/3265(CA)
