DUMBIRI EPHRAIM UWEH v. INDEPENDENT NATIONAL ELECTORAL COMMISSION [INEC)
(2010)LCN/3858(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of June, 2010
CA/B/EPT/259/2007
RATIO
ELECTORAL MATTERS: DISTINCTION BETWEEN PRE-ELECTION MATTERS AND ELECTION PETITIONS
But there is a clear distinction between pre-election matters and election petitions. Pre-election matters are not concerned with electoral law, practice, etc., while election petitions are complaints against the conduct of elections or what happened during the period the elections lasted. PER AMINA ADAMU AUGIE, J.C.A.
INTERPRETATION: CONTENT OF AN ELECTION PETITION
Section 4 (1) of the First Schedule to the Electoral Act, provides that:-
An election Petition under this Act shall :-
(a) Specify the parties interested in the election petition;
(b) Specify the right of the Petitioner to present the election Petition;
(c) State the holding of the election, the scores of the Candidates and the person returned as the winner of the election, and
(d) State clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the Petitioner. PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
DUMBIRI EPHRAIM UWEH – Appellant(s)
AND
INDEPENDENT NATIONAL ELECTORAL COMMISSION [INEC) – Respondent(s)
AMINA ADAMU AUGIE, J.C.A.(Delivering the Leading Judgment): The Appellant was nominated by the Peoples Democratic Party [PDP] to vie for election into the Delta State House of Assembly representing Ika North East Constituency, but his name was substituted with that of Hon. Sam Obi, and he filed an action challenging the said substitution at the Federal High Court, Abuja. He thereafter, filed an Election Petition against the Respondent only at the Delta State Governorship and Legislative Houses Election Tribunal, wherein he averred as follows:-
3. Your Petitioner states that he was the validly nominated candidate of PDP and relies on the Federal High Court, Abuja Judgment of Hon. Justice Abimbola Ogie in the case of Dumbiri Ephraim Uweh V. INEC, which Judgment is yet to be obtained from the Court despite the fact that applications have been made for same as can be seen from the Petitioner’s counsel letter dated 11th May, 2007 which is hereby pleaded and will be relied on in the trial of this Petition.
4. Your Petitioner states that he was sponsored by the PDP and relies on the witness statement of the Delta State Party Secretary of the PDP herein annexed as witness statement and the Judgment of the Federal High Court Abuja above mentioned.
10.That the result of the said elections were given adequate publicity in the print and electronic media all announcing the political party that won the election rather than the individuals.
11. That according to Delta Broadcasting Service, the following political parties scored the number of votes against their respective names for the House of Assembly in the Ika North East Constituency of Delta State.
AC 411
DPP 685
ANPP 164
PDP 68, 775
12. And your Petitioner states that the ground on which the Petitioner relies is that:-
He was validly nominated, validly contested and won the election .
13.WHEREOF, your Petitioner prays for the following reliefs:-
a. A Declaration that the Petitioner being the validly nominated candidate of the PDP be issued with a Certificate of Return for the Ika North East Constituency House of Assembly having scored the highest number of votes cast at the elections.
b. An Order that the Petitioner be declared validly elected and returned, his political party having polled the highest number of lawful votes cast at the election.
c. An Order that INEC issues the Petitioner a Certificate of Return, the Petitioner having been duly sponsored by a political party (PDP), having contested and won the elections for Ika North East Constituency House of Assembly General Elections.
The Respondent entered an “Appearance under Protest,” and filed a Reply incorporating a Notice of Preliminary Objection, as follows:-
1. The Respondent hereinafter will before or at the hearing of this Petition rely on the following preliminary objection namely:
“That the Petition is incompetent and/or that this Honourable Tribunal lacks the jurisdiction to entertain the Petition”.
Grounds of Objection
1. The Petitioner lacks the locus standi to file this Petition, not being a candidate of any political party in the election of 14th April, 2007.
2. The Petitioner does not qualify as a person who is entitled to present an election petition under Section 144 of the Electoral Act 2006 as he was neither a candidate in the State House of Assembly, Ika North east Constituency election nor a political party which participated in the election.
3. The PDP and Hon. Sam Obi (the candidate) returned as the winner of the election are not joined to this Petition.
4. The ground of the Petition is unknown to law.
In addition, the Respondent filed an Application for an order “striking out/dismissing the Petition for want of jurisdiction”, on the Grounds that:-
(1) The Petitioner lacks the requisite locus standi to bring and maintain this Petition, not being a candidate at the election of 14th April, 2007 into Ika North East Constituency.
(2) The Petitioner failed to disclose the person returned or elected in the body of his Petition as mandatorily required under Paragraph 4 (1) ‘A9 of the 1st Schedule to the Electoral Act 2006.
(3) Failure to join the person elected or returned as a party in the Petition contrary to mandatory provision of Section 140 (1) of the Electoral Act 2006.
(4) The Petition does not contain any valid grounds and or facts relating to grounds known to the Electoral Act.
The Appellant responded with a 10-paragraph Counter Affidavit, to which he attached the Judgment of the Federal High Court, Abuja, as Exhibit A.
However, the Tribunal upheld the objections and struck out the Petition.
Dissatisfied, the Appellant appealed to this Court with an original Notice of Appeal containing four Grounds of Appeal. The Notice of Appeal was amended with the leave of Court, and it contains six Grounds of Appeal.
Briefs of arguments were duly filed and subsequently amended, and in the Appellant’s Amended Brief settled by Chike Onyemenam Esq., five Issues for determination were distilled from the said Grounds of Appeal.
The Respondent, however, filed a Notice of Preliminary Objection that was argued in its Further Amended Brief settled by O. A. Adeyemi, Esq. It was contended that the Appellant’s Petition is statute barred because:-
(1) The result of the election was declared on the 14th of April, 2007, while the Petition was filed on the 15th of May, 2007 outside the time allowed by Section 141 of the Electoral Act 2006.
(2) That this Honourable Court lacks jurisdiction to entertain the Petition of the Appellant for being statute barred.
The Respondent referred this Court to Section 141 of the Electoral Act, and the following authorities: – Larmie V. DPMS Ltd. (2005) 18 NWLR (pt.958) 438 in support of its submission that this Court can only consider the Record of Appeal in resolving this issue; Alataha v. Asin. (1999) 5 NWLR (Pt. 601) 32, Fadare v. Att. Gen. Oyo State (1982) NSSC 52, PDP & Anor v. Ya’ud Mohammed & ors (2005) All FWLR (Pt. 28, 9) 1322, Iyirhiaro v. Usoh (1999) 4 NWLR (Pt. 597) 41, Ajadi v. Ajibola ,(2004) 16 NWLR (Pt. 898) 91, PDP v. Mohammed (2005) 2 FWLR (Pt. 2(18) 1243, and Aluge-Obia v. Okonta & ors (unreported), delivered by this; Division, in support of its contention that the Appellant’s Petition is statute barred.
The Appellant, however, argued in his Further Amended Reply Brief that an objection to the jurisdiction of a Court can only be determined by reference to the Statement of Claim (Petition) before the Court, and not by the Statement of Defence (Reply) or by the Objector’s affidavit evidence, citing DAM. & Co. Ltd. v. J.M.I. Ltd. (2007) All FWLR (Pt. 390) 1531, Woherem v. Emereuwa (2004) All FWLR (Pt. 221) 1570, and ANPP v. PDP & ors (2004) All FWLR (pt. 221) 1513.
It was further submitted, citing UBA Plc v. BTL Industries Ltd. (2007) All FWLR (Pt. 352) 1615, that time for limitation statutes begins to run when the chain of events are complete, giving the Plaintiff a right of action. The Appellant’s contention is that, both parties are relying on different documents to establish that the election result were declared on different dates, and so, this issue cannot be taken as a preliminary objection but should be resolved when considering the merits of the Petition itself.
This Court was also referred to Sections 72 & 141 of the Electoral Act.
Section 72 of the said Act, which provides for “Posting of Results” reads:-
“The Commission [INEC] shall cause to be posted on its notice board and website, a notice showing:-
(a) The candidates at the election and their scores; and
(b) The person declared as elected or returned at the election.
Section 141 deals with “Time for Presenting Election Petition,” it says:-
“An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”
The Appellant’s position is that, INEC failed to publish a notice showing the candidates at the election, and the person declared as elected or returned, but simply declared the results showing only political parties and their scores at the election on the 16th of April, 2007, therefore, having declared the results, but omitted his name and those of other candidates, his 30 days began to run from the 16th of April, 2007 when the said declaration was made by INEC, and his Petition filed on 15th May, 2007 was filed on the 30th day, that is within the 30 days statutory time limit.
Very ingenious argument, I must say, but it raises a vital question, was the process the Appellant filed at the Tribunal an election Petition? Before we can talk about time of filing the Petition, we need to understand what it was exactly that the Appellant filed at the Tribunal. The Appellant’s complaint is that he was validly nominated by his party for the election in question, and after he obtained Judgment to that effect from the Federal High Court, Abuja, INEC refused to issue him with the Certificate of Return, which is why he filed the process at the Tribunal.
But there is a clear distinction between pre-election matters and election petitions. Pre-election matters are not concerned with electoral law, practice, etc., while election petitions are complaints against the conduct of elections or what happened during the period the elections lasted.
Obviously, this Court cannot resolve this issue without going into the merits of the Ruling appealed against, and it is in this light that I will agree with him that the issue cannot betaken as a preliminary objection.
To this end, the said preliminary objection is hereby discountenanced.
Coming to the appeal, the Appellant abandoned Ground 1 of his Grounds of Appeal in his Amended Notice of Appeal, and it is struck out.
He argued four other Issues in his brief, and the said Issues are:-
(i) Whether the Petition was rendered incompetent because of the non-joinder of the person declared as the winner of the election and failure to specify the name of such person on the body of the Petition.
(ii) Whether the Appellant had no locus standi to bring the Petition.
(iii) Whether the Appellant’s Petition was based on Grounds not known to the Electoral Act 2006.
(iv)Whether the Appellant in the circumstances, and in particular, having regard to the Judgment of the Federal High Court, Abuja, pleaded by the Appellant, is entitled to the reliefs claimed in Paragraph 4 of his Amended Notice of Appeal.
The Respondent, however, formulated only one Issue and that is simply whether the Appellant’s Petition was competent. The Respondent’s Issue is apt and captures the essence of what is at stake in this appeal.
It will not be necessary to go into the details of the arguments’canvassed by the Appellant; in fact, it will be a waste of time to do so.
His contention is that, he does not need to comply with the provisions of Section 4 (1) of the First Schedule to the Electoral Act 2006, because:-
“…The Petition is very clear. It is not challenging the unlawful return of anybody, but clearly stated that the Respondent (INEC) failed to declare anybody the winner, but instead published results to show that the ‘Appellant’s party, PDP won the election, without stating the name of the PDP candidate who won; and being the validly nominated candidate of the PDP, who contested the election and won, INEC the electoral body, in spite of his victory, and in defiance of the Federal High Court Judgment, which confirmed the validity of his nomination by the PDP to contest the said election as its flag bearer, failed to give him a Certificate of Return”.
On its part, the Respondent pointed out that the Judgment of the Federal High Court, Abuja, relied on by the Appellant was not even in his favour, and he had appealed against it to the Abuja Division of this Court, thus, one of its grounds of Objection at the Tribunal is that, he lacks the requisite locus standing to bring and maintain the Petition, he not being a candidate at the election, and since the said Federal High Court refused to grant the reliefs sought, and affirmed his expulsion from the PDP.
It was also argued that this Court cannot sit over a matter pending before its Abuja Division, citing Peters v. Ashamu (1995) 4 NWLR (Pt.388); and that the Appellant’s complaint is a pre-election matter and the proper forum to ventilate his grievance is the regular Court, and not the Election Petition Tribunal, citing Amaechi v. INEC (2008) 1 SC (Pt.1) 36, Adeogun v. Fashogbon (Unreported) CA/A/81/M/07, upheld by the Supreme Court in Adeogun & Anor v. Fashogbon & Ors (2008) 5-6 SC. (Pt 1)23, and Odedo v. INEC & Ors (2008) 7 se 25.
There is no need to belabor the point, the Respondent is right, and I will not hesitate to say that the Appellant had no business at the Delta State Governorship and Legislative Houses Election Tribunal, where he filed a process the Tribunal rightly threw out as being unknown to law.
Section 4 (1) of the First Schedule to the Electoral Act, provides that:-
An election Petition under this Act shall :-
(a) Specify the parties interested in the election petition;
(b) Specify the right of the Petitioner to present the election Petition;
(c) State the holding of the election, the scores of the Candidates and the person returned as the winner of the election, and
(d) State clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the Petitioner.
In its Ruling delivered on the 2nd of August, 2007, the Tribunal held:-
“It is clear from the averments … that, the Respondent has not been sued as the person returned or elected at the election … likewise it is glaring … that, the Petitioner does not pretend to be complaining of the conduct of the Respondent and for agents at the election … the Tribunal therefore, finds the said Petition not to disclose on its face or in its body “the person elected or returned as the winner of the election…” and who is an indispensable or compulsory statutory respondent in an election petition. In other words, there is actually no election petition known to the law before the Tribunal.”
The Ruling speaks for itself: the process filed by the Appellant at the Tribunal cannot be described as an election petition, and it is not one.
From all indications, the Appellant lost track of the pre-election matter he filed at the Federal High Court, Abuja and ventured into the wrong arena.
What is more damaging to his case and portrays him as an adventurer, is that the Judgment of the said Federal High Court, which he so strenuously relied on, was not in his favour, as the Respondent said.
Although the Federal High Court found therein that, “his name was substituted after the time for substitution under Section 34 (1) of the Electoral Act had expired,” and that the letter expelling him from PDP, “was written after the writ of summons was filed on 30/3/07 and the matter was pending in Court,” it relied on the decision of this Court in the case of Amaechi V. INEC, which was overruled by the Supreme Court, and held that having been expelled by PDP, the Appellant had, no case.
Consequently, the reliefs sought were refused, and the suit struck out.
This Court is not concerned with that Judgment of the Federal High Court, Abuja; it is not on appeal before us and we cannot look into it. Suffice it to say that the Appellant should have pursued his appeal in Abuja, rather than finding his way to the Tribunal on a fruitless exercise.
The end result is that, his complaint has nothing to do with the conduct of the election or what transpired at the election, and the Tribunal was therefore right to strike out the process he filed as being unknown to law.
The Appeal therefore lacks merit; it fails and is hereby dismissed.
There will be, however, no order as to costs.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.
CHIOMA EGONDU NWOSU-IHEME, (Ph. D), J.C.A.: I agree entirely with the lead Judgment delivered by my learned brother, AMINA ADAMU AUGIE, J.C.A. There is therefore, no need to dwell further on the said Judgment. I also abide by the order as to costs.
Appearances
Chike Onyemenam, Esq, with E. Asiana, Esq.For Appellant
AND
O. A. Adeyemi, Esq.For Respondent
