Levis Osaretin Aigbogun & Anor V. Sunday Eghe- Osazemwinde & Ors. (2009)
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NWOSU-IHEME (Ph.D), J.C.A.
The Appellants filed this appeal against the Judgment of the Governorship, and Legislative Houses Election Tribunal sitting in Benin Edo State delivered on the 7th of April 2008. The Appellant in appeal NO.CA/B/EPT/180/08 Levis Osaretin Aigbogun was the 1st Respondent at the tribunal below. He was the Candidate of the Peoples Democratic Party (PDP) for Ovia North East (i) Constituency in Edo State on the 14/4/07.
The 1st Respondent in the same appeal NO.CA/B/EPT/180/08 Sunday Eghe – Osazemwinde was the Candidate of the 2nd Respondent, the Action Congress (A.C.). The 3rd – 5th 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. Aggrieved 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 challenged the election on two Grounds namely:
(a) “That the Ovia North East 1 Constituency Election for Edo State House of Assembly conducted by the 3rd, 4th and 5th Respondents and their agents in Ovia North East Local Government Area of Edo State on the 14th of April, 2007, is invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2006 in Adolor Ward 4 Units 6, 7, 8; Ofunmwengbe Ward 5 Unit 004 and 008; Uhiere Ward 7; Isiuwa Ward 8 Unit 9; Okokhuo Ward 9 Units 4 to 8, 10 to 12:
(b) That the 1st and 2nd Respondents were not duly elected by majority of lawful votes cast in the election.”
He then sought the following reliefs:
(i) “An order invalidating the 9126 votes or such part of the votes scored allocated to the 1st and 2nd Respondents by the 3rd, 4th and 5th Respondents as may be found to be invalid in Adolor Ward 4 Units 6, 7 and 8, Ofumwengbe Ward 5 Units 4 and 8, Uhiere Ward 7, Isiuwa Ward 8 Unit 9 and Okokhuo Ward 9 Units 4 to 8, 10 – 12 in Ovia North East 1 Constituency election held on 14/4/07 on the Ground of corrupt practices or non – compliance with the provisions of the Electoral Act 2006.
(ii) An order declaring the Petitioners as validly elected and returned as the winners of the Ovia North East 1 Constituency Election of Edo State House of Assembly conducted on 14/4/07 having scored the Highest number of lawful votes of the total valid votes cast in the said Election after removing the invalid votes allegedly scored or allocated to the 1st and 2nd Respondents. ”
The Respondents filed their various replies to the Petition. Consequently, the Petition proceeded to trial, at the conclusion of which the lower tribunal in its Judgment at page 543 of the record of appeal held that the Petitioners had proved their Case.
“We think the tribunal can still nullify the election based on Section 147(2) (supra) especially where 1st and 2nd Petitioners have failed to move the burden of proof placed on them as being the cause for INEC to cancel the results in Oluku Ward 6. We do not think that 1st and 2nd Petitioners would be said to have satisfied the provisions of the Act if they cause the cancellation of the election disenfranchising about 13,000 voters which is almost equal to the number of votes originally recorded for the parties by INEC. The emphasis here is that no one should benefit from his own wrong. See Exhibits 45 and 46. We think the proper thing to do is go ahead and nullify the election.
We resolve issue NO.5 against the 1st & 2nd Petitioners. The Petition succeeds and we make the following orders:
(1) The election to Ovia North – East 1 Constituency to the Edo State House of Assembly is hereby nullified;
(2) The 1st Petitioner Scored the highest number of valid votes cast but did not satisfy the requirement of the Act; and
(3) The 4th Respondent is ordered to conduct a fresh election into the Ovia North – East Constituency for the Edo State House of Assembly 90 days from today.”
The tribunal then proceeded to nullify the election and return of the Appellant (1st Respondent at the lower tribunal) and ordered a fresh election.
Aggrieved by the Judgment, the Appellant appealed to this Court, and formulated six issues for determination;
- Whether the learned Chairman and members of the tribunal were right to rely on facts not pleaded and which evidence was not led by the 1st and 2nd respondents’ witnesses to nullify the election of the 1st Appellant. (Encompassing grounds 1 and 5 of the Notice of Appeals).
- Whether the learned Chairman and members of the tribunal were right in their judgment to determine issues not validly raised by the 1st and 2nd Respondents in their pleadings. (Encompassing ground 2 of the Notice of Appeal).
- Whether the Chairman and members of the tribunal were right in holding that there was multiple voting in eight polling units in Ovia North East 1 constituency of Edo State House of Assembly and consequently cancelled the results in those units of the constituencies. (Encompassing grounds 3, 5, 6 and 7 of the Notice of Appeal).
- Whether the Chairman and members of the trial tribunal were right to have cancelled the result of the election in some polling units in Ovia North East 1 Constituency on the ground that the ballot papers used in the said election were unstamped and unsigned. (Encompassing ground 8 of the grounds of appeal).
- Whether the reasons given by the Chairman and members of the trial tribunal for nullifying the election held on 14/4/07 in Ovia North East 1 Constituency of the Edo State House of Assembly are justified by the provisions of the Electoral Act, 2006. (Encompassing ground 9 of the Notice of Appeal).
- Whether having regards to the provision of Section 141 of the Electoral Act 2006, the Petition filed by the 1st and 2nd Respondents was competent. (Encompassing ground 10 of the Notice of Appeal).
On the 11/5/09 the Appellants brought an application to adduce fresh evidence on appeal by tendering the Certified True Copy of form EC8E (i) Declaration of Result of Election held on the 14th of April, 2007 in Ovia North East 1 Constituency into the Edo State House of Assembly, it is marked as Exhibit 48. The said application is hereby granted.
Mr. Sunday Eghe Osazemwinde and the Action Congress which were the 1st & 2nd Petitioners at the lower tribunal cross appealed against the Judgment in appeal No.CA/B/EPT/179/08. The Respondents at the lower tribunal (1st & 2nd Appellants 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 filed by Counsel.
Dr. Alex Izinyon SAN in his issue No.6 raised the issue of jurisdiction. Ricky Tarfa SAN learned Counsel for the 1st & 2nd Respondents formulated seven issues for determination; his 7th issue was on jurisdiction.
Chris Agoha for the 3rd – 5th Respondents adopted the six issues formulated by the Appellants.
In the consideration of this appeal, I will adopt the Issues identified by the Appellant’s Counsel already set out above. I will start with issue No.6, not withstanding that it was the last issue distilled for determination, for the simple reason that it raised the issue of jurisdiction i.e.
“Whether having regards to the provisions of Section 141 of the Electoral Act 2006, the Petition filed by the 1st & 2nd Respondents was Competent.”
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 even on appeal. Where a Court lacks jurisdiction, no matter how well the trial was conducted, the trial would be a nullity. See ELIGBE V. OMOKHAFE (2004) 12 SCNJ. Page 106. ELABANJO V. DAWODU (2006) 6 SCNJ. Page 204.
The disposal of the issue of jurisdiction one way or the other will affect the entire appeal. If I find that there is merit on the issue of jurisdiction, then this Court will not have jurisdiction to dwell on the merits of this appeal. If on the other hand the issue of jurisdiction is misconceived and unmeritorious, I will go into the merit of 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 ALHAJI BARI BUDO NUHU V. ALHAJI ISOLA IS OGELE (2003) 12 SCNJ. 158
.
The case presented by the Appellants is that the 1st Appellant Levis Osaretin Aigbogun was declared winner on the 14/4/07 the day the election was held as per Exhibit 48 form EC8E (i) Declaration of Result form for the Election held on the 14/4/07 in Ovia North East 1 constituency into the Edo State House of Assembly.
The Appellants pleaded the said form EC8E (i) in paragraph 38 of their joint Reply to the Petition of the 1st & 2nd Respondents (see page 141 of the record of appeal).
Also form EC8D (i) admitted as Exhibit 4 in the lower tribunal (see page 288 of the record of appeal).
The 1st Respondent filed the Petition on the 14th 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 including AKUME V. LIM (2008) 16 NWLR (PT. 1114) 490 at 502. FADARE V. ATTORNEY GENERAL OF OYO STATE (1982) 4 SC.1. ALATAHA V. ASIN (1999) 5 NWLR (PT.601) 32 at 44. ATTORNEY GENERAL OF ONDO STATE V. ATTORNEY GENERAL OF EKITI STATE (2001) 17 NWLR (PT.743) 706 at 756. OGBEBOR V. DANJUMA (2003) 15 NWLR (PT.843) page 403 at 426 – 427.
The 1st & 2nd Respondents on their part contended that the date of declaration of the result was not pleaded any where by the 1st & 2nd Respondents (Petitioners at the tribunal below). Referring to Section 141 of the Electoral Act 2006, Counsel submitted that the date of the happening of the event i.e. declaration of result is not included in the 30 days.
He argued that since the last day fell on a Sunday, the Petition cannot be labeled statute – barred if it was filed on Monday the next working day. He cited YUSUF V. OBASANJO (2003) 16 NWLR (PT. 847) page 554 at 608 – 609.
IYIRHIARO V. USHO (1999) 4 NWLR (PT. 597) 41 at 51 AGBAI V. INEC (2008) 14 NWLR (PT. 1108) page 417 at 434. among numerous others.
The said 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 did not quite agree that the result was declared on the 14/4/07. While the Appellants insisted that the result was declared on 14/4/07, the 1st & 2nd Respondents contended that the said date was not stated in the pleadings of the Petitioners at the lower tribunal.
To this end Exhibit 48 form EC8E (i) tendered by the Appellants, as well as form EC8D (ii) admitted as Exhibit 4 in the lower tribunal comes into play. Both documents show clearly that the result was declared on the 14/4/07.
I have carefully considered and painstakingly studied the arguments of Counsel and authorities cited in the briefs relied upon by all the parties.
There is no doubt what so ever that the election in question was declared on the 14/4/07. It is also not in doubt that the 1st & 2nd Respondents filed the Petition at the lower tribunal on the 14th of May, 2007 i.e. Thirty One (31) days after the declaration of the aforesaid result.
I wish to refer to 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 while interpreting Section 141 of the Electoral Act 2006 on the issue of jurisdiction. The circumstances and facts of this case are very similar to that. I have no reason or justification why I should depart from it. I therefore look at the said Section 141 in that perspective.
In the circumstance of this Case, it is my humble view that time began to run on the 14th of April, 2007, the day the result of the said election was declared, that time ended on the 13th of May, 2007. The filing of the Petition on the 14th of May, 2007, One day outside the statutory period has therefore resulted in very unpleasant and irreversible consequences on the Petitioner (1st Respondent herein). The Petition filed on the 14th of May, 2007 having been filed on the 31st day has unfortunately and regrettably strayed outside the period stipulated by Section 141 of the 2006 Electoral Act. This in my humble view is a condition precedent which foists jurisdiction on the tribunal. The fact that the last day fell on a Sunday is no justification for this lapse and delay which in my view was unnecessary, uncalled for, and likened to “playing with fire”. The Petition is statute barred and the said Section 141 of the Electoral Act does not allow, permit or authorize extension of time.
Since the Petition has been labeled statute barred, it means the lower tribunal lacked the competence to entertain the Petition. The trial and the subsequent Judgment is therefore an exercise in futility no matter how well conducted. The Judgment of the lower tribunal is a nullity as well as the consequential orders. The petition filed by the 1st & 2nd Respondents (Petitioner at the tribunal below) on the 14th of May, 2007 having been declared incompetent is hereby struck out.
I make no order as to costs.
Other Citations: (2009)LCN/3368(CA)
