Isyaku Magaji & Anor V. Habibu Saleh Ors (2008)
LawGlobal-Hub Lead Judgment Report
BASA ALKALI BA’ABA, J.C.A.
This is an appeal against the ruling of the Election Petition Tribunal, holden at Kano, Kano State in Petition No. EPT/KNS/HA/ 24/2007 delivered on the 19th day of January, 2008, striking out the petition.
The brief facts of the petition leading to this appeal are as follows: On the 14th day of April, 2007, the 1st appellant as a candidate of the 2nd appellant, contested the election to the House of Assembly for Minjibir Constituency, Kano State while the 1st respondent contested the same election on the platform of the 2nd respondent, the All Nigeria Peoples Party (ANPP). At the conclusion of the said election, the 1st respondent who scored the highest lawful votes at the election was declared the winner of the election by the 3rd respondent.
The appellants as the petitioners filed a petition dated and filed on the 15th day of May, 2007 containing twenty-five paragraphs at pages 1 – 54 of the record challenging the declaration and return of the 1st respondent. The 1st and 2nd respondents thereafter filed a motion challenging the competence of the petition of the petitioner on divergent grounds (see pages 89 – 98) of the record which was subsequently withdrawn on 10/9/07. On the 10/9/07, counsel to 3rd and 4th respondents moved their application seeking for the dismissal of the petition on the ground that it was filed out of time (see pages 309 – 310) of the record. The said application was dismissed by the Tribunal on 28/9/07 and held that the petition was filed on the 15th day of May, 2007 within time (See pages 313 – 317) of the record.
Leave was granted to the respondents to file their respective reply out of time (page 319) of the record.
Before the end of the pre-hearing session, the Tribunal observed that although the petition is said to have been filed on 15/5/07 but amongst the receipts issued by the Secretary in respect of petitions filed on 15/5/07, there was no receipt issued in respect of the appellants/ petitioners’ petition. As a result, the appellants as petitioners, filed a motion dated 23/10/2007 filed on 24/10/2007, praying for the following orders:-
“1. An order of this Hon. Tribunal summoning Mrs. E.I. Sowemimo to appear and produce receipts for filing fees/security for costs paid to her by the petitioner for this petition or to clarify the issue of the whereabout of the receipt she was supposed to have issued to the petitioners.
- An order of this Tribunal directing the Registrar of this Court to produce for counsel’s inspection all the receipts booklets containing the duplicate copies of all receipts issued by this Tribunal for filing fees and other requisite fees in the entire 43 petitions filed before the Tribunal.
- And for further or other orders as this Hon. Tribunal may deem fit to make in the circumstance of this case.”
The motion reproduced above supported by a twenty-four paragraph affidavit was heard and the Tribunal in its ruling delivered on the 21/11/2007, held inter alia as follows:-
“It is our most humble view that the said Mrs. E.I. Sowemimo was acting in her official capacity at all the time of her being the Secretary to the Tribunal. Any transaction had with her by any of the parties was also done on official basis. She only headed the Registry. It was Mrs. E.I. Sowemimo that is no longer there as the head of the Registry. The Registry of the Tribunal has not gone anywhere. It is there and the person who took over from her is also there. That is how any organ of government functions. Since the Registry of this Honourable Tribunal is still there, it is our most humble view that no useful purpose would be served in summoning the erstwhile Secretary. It would have been a different thing assuming the Registry has wound-up and an issue arises in which only the former Secretary of the Tribunal could shed light. It has not been alleged that the erstwhile Secretary did not hand over to the current Secretary. Therefore all the duplicate receipts issued in payment for filing of all the petitions ought to have been handed over to the current Secretary by the former Secretary. The said duplicate receipt booklets ought ordinarily to be in the effective custody and control of the current Secretary. It is for this reason that we have stated earlier that the two prayers shall be taken together by us. Therefore, the petitioners should be able to get whatever information needed by them in the record of the Tribunal left behind by the erstwhile Secretary. It is for this reason also that we find ourselves unable to accede to the first prayer of the petitioners.
However, in view of our decision that all the official records of the Tribunal including duplicate receipts issued for the filing of the petitions are to be in the effective custody and control of the current Secretary, we find merit in the second prayer. We grant the said second prayer as prayed. Accordingly, it is hereby ordered that the Secretary of this Tribunal shall produce for the counsel’s inspection all the receipt booklets containing the duplicate copies of all the receipts issued by this Tribunal for filing fees and other requisite fees in the entire petitions filed and paid for before the tribunal. Application granted in part.”
The appellants as petitioners filed their written address in compliance with the Tribunal’s order (See pages 346 – 347) of the record. The Tribunal on the 19th of January, 2008, delivered its ruling part of which reads as follows:-
“This Tribunal on discovering from its records that there was no receipt of evidencing payment of filing fees, suo motu invited counsel to address it on the effect of non-production of receipt to evidence payment of filing fees by the petitioners. Learned counsel to the petitioners took objection on the jurisdiction of the Tribunal to suo motu raise the issue or production of receipt. The ground of the objection taken is that this Tribunal had on the 20th of September 2007 held that this petition was filed on the 15th of May 2007.
Learned counsel for the petitioners contended that the Tribunal having held that the petition was filed on 15th of May 2007 lacks the jurisdiction to raise the issue of non-production of receipt.”
The Tribunal at pages 364 concluded thus:
“In consideration of all the foregoing, we are of the view that the petition is incompetent and we hold so accordingly it is hereby struck out.”
Being dissatisfied with the Ruling of the Tribunal, the appellants as petitioners filed a notice of appeal dated 6/2/2008 filed on 8/2/2008 at pages 366 – 372 of the record containing four grounds of appeal.
Briefs of argument were filed and exchanged between the parties. The appellants’ brief is dated 28/2/08 filed on the 29/2/08 while the 1st and 2nd respondents’ brief dated 8/3/08 was deemed filed and served on 14/3/08 by order of this court. The 3rd – 33rd respondents’ brief is dated and filed on 10/3/08.
At the hearing of the appeal which came up on the 22nd day of May, 2008, counsel to the parties adopted their respective briefs.
The appellants at page 4 of the appellants’ brief distilled four issues for determination in this appeal as follows:-
“(1) Whether or not in the circumstances of this case, the learned trial Tribunal did not misunderstand the position of the petitioners on the issue of receipt, and was therefore wrong to have struck out the petition on the grounds of non production of same. Grounds three and four of the Notice of Appeal are covered by this issue.
(2) Whether or not in the circumstances of this matter, the learned trial Tribunal was right to have refused the petitioners’ application to summon the erstwhile secretary of the Tribunal Mrs E.I. Sowemimo to appear before the Tribunal to clarify the issue of the whereabout of the receipt she was supposed to have issued to the petitioners. Ground two of the notice of appeal is covered by this issue.
(3) Whether or not the learned trial Tribunal was right to have raised the issue of production of receipt suo motu after having previously held in an earlier ruling that the petition was filed on the 15th day of May, 2007. ground one of the Notice of Appeal.”
At pages 3 – 4 of the 1st and 2nd respondents’ brief, two issues were formulated for determination in this appeal as follows:-
“(a) Whether or not in the circumstances of this matter was right to have refused the petitioners application to summon the erstwhile secretary of the Tribunal Mrs Sowemimo to appear before the Tribunal on the issue of receipt which the appellant could produce.
(b) Whether or not in the circumstances of the matter, the lower Tribunal was right to have refused the petitioners application to summon the erstwhile secretary Mrs. Sowemimo to appear before the Tribunal on the issue of receipt the appellants could not produce.”
The 3rd – 33rd respondents also at page 4 of the 3rd – 33rd respondents brief distilled three issues as follows:-
“1. Whether the Election Petition Tribunal was right when it held that the issue of non production of receipt of payment of filing fees is different from the issue of time for presentation of petition determined by the Tribunal on 28/9/07.
- Whether the Tribunal was right when it refused to summon one, Mrs. E.I. Sowemimo to appear before the Tribunal to clarify the issue of the whereabouts of the receipt of payment of filing fees.
- Whether the Electoral Act 2006 contemplates the form of receipt to be issued by the secretary of the Tribunal upon the payment of filing fees by a petitioner.”
After examining the issues formulated by the parties in this appeal, I adopt issue No.1 only formulated by the appellants for the determination of this appeal.
On issue No.1, it is contended by M.N. Duru, Esq., learned counsel for the appellants that the petition in issue was filed on the 15th day of May, 2007 at 3.45p.m as shown, at page 1 of the printed record. He placed reliance on the affidavit deposed to by one Omeronye C. Morgan, of counsel who personally made the payment to Mrs E.I. Sowemimo on 15/5/01. Reference was also made to paragraph 8 of the affidavit, where it was deposed to the fact that at the time of the payment of the filing fees for the petition there was no receipt booklet. He referred to the provisions of paragraph 3(1) of the Electoral Act, 2002 and similar provisions of the Electoral Act, 2006.
It is submitted that our courts have moved away from the old era of technicality to the new era of doing substantial justice to the parties, citing NGIGE VS. OBI (2006) ALL F.W.L.R. (Pt.330) 1041 at 1197 and EGOLUM Vs. OBASANJO (1999) NWLR (Pt.611) 355. He urged the court to resolve issue No.1 in favour of the appellants and allow the appeal.
It is submitted by M.L. Ibrahim, Esq., for the 1st and 2nd respondents, in the 1st and 2nd respondents brief on issue No.1 that the Tribunal’s ruling striking out the petition was anchored on valid grounds of law and facts supported by decisions of Superior Courts. He stated that it is not in doubt that the appellants could not produce a receipt of the payment of the filing fees when requested to do so by the Tribunal. Reference was made to page 364 lines 1 – 9 and 12 – 15 containing the ruling of the Tribunal. See paragraph 3(1) of the 1st Schedule to the Electoral Act; UGWU V. ARAROMI (2007) ALL FWLR 807 at 921; OKPOIDE VS. UDOKPONG (1999) 5 NWLR (Pt.604) 594 and UZOBIA VS.ANAH (1999) 5 NWLR (Pt.601) 6.
Learned counsel for the 1st and 2nd respondents submitted that it is a fundamental requirement of filing process to pay the filing fees and the non production of the receipt evidencing the payment of the filing fees by the appellants is fatal to the petition and the Tribunal was right in striking out the petition. He urged the court to dismiss the appeal and affirm the ruling of the Tribunal.
The learned counsel for the 3rd – 33rd respondents, S.I. Gani, Esq., commenced his submission on issue No.1 by referring to the provisions of Section 141 of the Electoral Act, 2006 and paragraph 3(1) of the 1st Schedule to the Electoral Act, 2006 and submitted that the presentation of an election petition within time is one thing and the actual payment of the filing fees evidenced by a receipt makes the presentation of the petition valid. Reference was made to the cases of OKPOIDO vs. UDOIKPONG (1999) 5 NWLR (Pt.604) 596, OZOBIA VS. ANAH (1995) 5 NWLR (Pt.601) 1 at 6 in support of his submission. Pointing out that the petitioner or his solicitor is under an obligation to obtain a receipt of filing fees from the secretary of the Tribunal. It is contended that the failure to pay the filing fees and obtain a receipt renders the petition incompetent and the Tribunal lacks the jurisdiction to entertain the petition. In conclusion, learned counsel for the 3rd – 33rd respondents submitted that the ruling of the Tribunal dated 29/9/07 is right and urged the court to dismiss the appeal and affirm the ruling of the Tribunal.
In my view, the main issue, in fact the only issue in this appeal is the non-production of the receipt evidencing the payment of the filing fees in respect of the petition.
Although, the learned counsel for the appellants strenuously argued that the appellants paid the filing fees in respect of the petition now on appeal, he was however, unable to produce the receipt issued to him or the petitioners in proof of the payment of the filing fees. Instead the learned counsel relied on the affidavit deposed to by one Omireonye C. Morgans, Esq. There is a world of difference between assessment of filing fees and actual payment of filing fees which in any case must be supported by a receipt issued by the Registry of the Court or Tribunal. It appears to me that the appellants conceded to the fact that no receipt was obtained by them in respect of the filing fees of the petition when they claimed that on the 15/5/2007 there was no receipt. However, this claim has been debunked when the duplicate copy of the Tribunal’s receipt was produced which shows that payments were made on the same 15/5/2007 but the payment alleged to have been made by the appellants was not included. It should be noted that the Tribunal afforded the appellants all the opportunity to produce the filing fees receipt in respect of the petition but the appellants and their counsel were unable to do so.
It is trite that a court is entitled to look at its own record and proceedings on any matter and take notice of their contents although they may not be formally brought before the court by the parties. See ONWUKA VS. OWOLEWA (2001) 7 NWLR (Pt.713) 695 at 714.
In OKPOIDO V. UDOIKPONG (1999) 5 NWLR (Pt.604) 59 at 609, this court held that merely giving the election petition to the secretary or registrar of the Tribunal for assessment will not constitute a valid presentation of an election petition. Payment of the requisite fees by the petitioners or their solicitor and the issuance of receipt by the secretary of the Tribunal are conditions precedent for an election to be properly and validly presented. There is an inherent jurisdiction in the court to set aside its judgment which it has given without jurisdiction.
I do not think that it will be disputed that the failure of a party to pay or prove payment of filing fees, has the effect of ousting the jurisdiction of the Court or Tribunal to entertain the petition.
The true principle is that, for an appellate court to interfere with the discretionary power vested in the court below (Tribunal), it must be shown how that power was wrongly exercised to justify the intervention of the appellate court. See ALSTHON S.A. VS. SARKI (2005) 3 NWLR (Pt.911) 208 at 224 – 225, CEEKAY TRADERS LTD VS. GEN. MOTORS CO. LTD (1992) 2 NWLR (Pt.222) 132 and RASAKI A. SALU VS. MADAM TOWRO EGEIBON (1994) 6 NWLR (Pt.348) 23.
In view of the aforesaid, the ruling of the Tribunal, portion of which has been reproduced herein can not be faulted as the issue was very carefully resolved by the Tribunal.
In the result, I hold that this appeal lacks merit and must be and is hereby dismissed. The ruling of the Tribunal in Petition No. EPT/KANS/HA/24/2007 delivered on the 19th day of January, 2008, is hereby affirmed by me with costs assessed at N30, 000.00 in favour of the 1strespondent.
Other Citations: (2008)LCN/2927(CA)
