OZOR OCHIAGHA UGOCHUKWU v. OKECHUKWU SIMON NWOKE & ANOR (2010)

OZOR OCHIAGHA UGOCHUKWU v. OKECHUKWU SIMON NWOKE & ANOR

(2010)LCN/3948(CA)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of July, 2010

CA/E/EPT/5A/2007 (CON)

RATIO

INTERPRETATION OF STATUTE: MEANING OF THE WORD “SHALL” AS USED IN SECTION 141 OF THE ELECTORAL ACT WITH RESPECT TO THE PERIOD WITHIN WHICH AN ELECTION PETITION MUST BE FILED

Section 141 of the Electoral Act 2006 provides as below – “An election petition under this Act shall be presented within thirty (30) days from the date the results of the election is declared” (emphasis supplied) By the wordings of the above provisions of the Electoral Act 2006 reproduced supra wherein the word “shall” is used it goes without saying that only petition which was filed within thirty days from the date results of the election petitioned against is valid. Where the above provisions of the Act have not been complied with, the petition becomes statute barred and therefore the court or tribunal has no jurisdiction to entertain it. See Otu vs INEC (1999) 6 NWLR (Pt 602). PER AMIRU SANUSI, J.C.A.

TIME LIMIT: WHEN DOES TIME WITHIN WHICH TO PRESENT AN ELECTION PETITION WILL BEGIN TO RUN

It is however pertinent here to ascertain when time would begin to run in order to determine whether the petition was filed within or outside the 30 days as stipulated by the Act. In doing so, I think it will also be useful to refer to some decided authorities of this court and the apex court where they determined whether a particular action or petition is statute barred or not. In the decision of Fadare vs Attorney General of Oyo State (1982) 4 SC 1 or (1982) NSCC 52 at 60, the Supreme Court referred also to the decision of Board of Trade vs Cayzer Irvine & Co. Ltd (1927) AC 610 where it held that- “Time, therefore begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which materials to be proved to entitle the plaintiff to succeed!. PER AMIRU SANUSI, J.C.A.

ELECTION FORM: IMPORTANCE OF THE RESULT OF ELECTION FORM

The result of election form is the only recognized mode of declaring an election result and no other means is recognized by law. See the case of Alatahe vs Asin (1999) 5 NWLR (Pt 601) 32. It is trite that any party challenging its authenticity has burden to prove otherwise. See IWE vs Ray (2004) 14 NWLR (Pt 892) 92. PER AMIRU SANUSI, J.C.A.

FORM EC8E(1): WHETHER FORM EC8E(1) IS THE BEST EVIDENCE TO ASCERTAIN THE DATE THE RESULTS OF ELECTION WAS DECLARED

FILING OF PETITION: EFFECT OF AN ELECTION PETITION FILED BEYOND OR AFTER 30 DAYS FROM THE DATE THE RESULT OF AN ELECTION WAS DECLARED

Without mincing words therefore, the result of the election in this case was declared and released by the Returning Officer on 14/4/2007. By the provision of Section 141 of the Electoral Act 2006 therefore if the petition was filed beyond or after 30 days from the 14/4/2007 it becomes statute barred. It is however pertinent here to ascertain when time would begin to run in order to determine whether the petition was filed within or outside the 30 days as stipulated by the Act. In doing so, I think it will also be useful to refer to some decided authorities of this court and the apex court where they determined whether a particular action or petition is statute barred or not. In the decision of Fadare vs Attorney General of Oyo State (1982) 4 SC 1 or (1982) NSCC 52 at 60, the Supreme Court referred also to the decision of Board of Trade vs Cayzer Irvine & Co. Ltd (1927) AC 610 where it held that- “Time, therefore begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which materials to be proved to entitle the plaintiff to succeed!” Applying the above principle to the facts and surrounding circumstance of this case, time will begin to run on 14th April 2007 which was the date Exhibit A annexed to the motion which was the Declaration of Result of the Election on which the 1st respondent was declared or returned winner of that election. The time to institute or file the petition by the petitioner against the respondents was as from that day when all material facts required by him to prove the case/petition had happened. Now since by the provisions of the Act the petitioner/1st respondent had 30 days within which to file his petition, he is therefore duty bound to file or present his petition at the tribunal between 14 April 2007 and 14th of May 2007. Once it is computed or counted and found that he filed the petition outside this period, it becomes time or statute barred. PER AMIRU SANUSI, J.C.A.

DOCUMENT IN COURT RECORD/FILE: WHETHER A COURT IS ENTITLED TO LOOK AT THE DOCUMENTS IN ITS FILE WHILE WRITING ITS JUDGMENT OR RULING EVEN IF SUCH DOCUMENT WAS NOT TENDERED AND ADMITTED AS AN EXHIBIT AT THE TRIAL

It is trite law that in order to do justice, court is entitled to look at a document in its file while writing judgment or ruling even if such document was not tendered and admitted as an exhibit at the trial. See ANPP & Anor vs Argungu & Ors (2009) 17 NWLR (Pt 1171) 445 at 458 paragraph E – F. PER AMIRU SANUSI, J.C.A.

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

MOHAMMED LADAN-TSAMIYA Justice of The Court of Appeal of Nigeria

AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

OZOR OCHIAGHA UGOCHUKWU – Appellant(s)

AND

1. OKECHUKWU SIMON NWOKE

2. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)

AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment): By way of motion on Notice dated 3rd March, 2009 filed on 5th March, 2009, the appellant herein applied for the consolidation of his appeal No.CA/E/EPT/5/2007 and the appeal filed by the 1st respondent herein No. CA/E/EPT/5A/2007 which said appeals hereinafter referred to as 1st and 2nd appeal respectively emanated from the Rulings of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting at Enugu, Enugu State, (‘the tribunal’ for short) delivered on 14th of August, 2007 in Petition No. NAGL/EPTEN/SH/103/2007. As all the parties were not opposed to the application for consolidation, this court on 19th March, 2009 consolidated the two appeals before hearing them on 24th of May, 2010.

This judgment is therefore in relation to the two appeals. The two appeals will therefore be considered in the reverse way they were argued before us but before doing so I see the need to give a brief facts that gave rise to the two appeals. The Appellant in the first appeal herein (1st respondent in the second appeal) No. CA/E/EPT/5A/2007 was a petitioner in petition No. NAGL/EPT/EN/SH/03/2007 before the said tribunal sitting in Enugu. He belonged to and was sponsored to contest the election into the Enugu State House of Assembly in Igbo-Etiti West Constituency on the platform of his party the All Nigeria Peoples Party (ANPP). The election was held on 14th April, 2007 and he contested with eight other candidates sponsored by various registered political parties. The 1st respondent (as the appellant in the second appeal) was sponsored by the Peoples Democratic Party (PDP) for the same elective post and in the same constituency. The 2nd respondent is the statutory body saddled with the responsibility of conducting the said election with the help of its officers and other ad hoc staff. At the conclusion of the said election, the 2nd respondent declared results of the election and returned the 1st respondent winner of the election on the same 14/4/2007 and issued him with Certificate of return as the duly elected candidate having won the election with a majority of lawful votes cast at the election. The appellant became disenchanted with the declaration of such results and the return of the 1st respondent/appellant winner of the election and he thereby filed the petition before the tribunal contending that he was the actual winner of the election having won with a majority of lawful votes cast at the said election.

It was contended that the petition was allegedly served on the 1st Respondent, (appellant in 2nd appeal) on the 4th day of June by means of substituted service. The 1st respondent filed a Memorandum of Appearance and a Reply to the Petition. He however filed an application for enlargement of time and to regularize the processes already filed by him i.e. Memorandum of conditional appearance and Reply, but such application was refused by the tribunal and struck out. However, before this application for enlargement of time to file the two processes was heard by the tribunal, the petitioner/appellant filed another application praying it to enter judgment in his favour and also to bar the 1st respondent from defending the petition. A counter affidavit against the application was filed by the 1st respondent. It is pertinent to note also that on 17th of July, 2007, the petitioner/appellant filed a motion for an order striking out the 1st respondent’s Reply and a counter affidavit was also filed by the 1st respondent in opposition to the motion for extension of time: Thereafter, the two applications for judgment filed by the petitioner/appellant and the motion also filed by him for striking out the 1st respondent’s Reply were both initially slated for hearing on 17/7/2007 but later adjourned to Pre-hearing session then fixed for 27/7/2007. On 27/7/2007, the 1st respondent filed an application seeking an order striking out the petition in its entirety on the ground that it was filed out of time. The appellant/petitioner opposed the application by filing a counter affidavit thereto while the 1st respondent filed a further affidavit.

The tribunal heard the application and reserved its ruling till 14/8/2007. On that day (14/8/2008) the tribunal delivered a considered ruling dismissing the application to strike out the petition and proceeded to take or hear the motion for judgment filed by the appellant wherein it voided the election and ordered that a fresh election be held in the said Constituency. Aggrieved by the tribunal’s ruling voiding the election the petitioner/appellant appealed to this court vide a Notice of Appeal filed on 29/8/2007. Similarly, the 1st respondent also became dissatisfied with the decision of the tribunal refusing to strike out the petition and thereby appealed against such decision vide his Notice of Appeal filed on 3rd September, 2007. The two Rulings are subject of the two appeals.

Briefs were settled and filed by learned counsel for the parties in the two appeals.

On the first appeal No. CA/E/EPT/5/2007, the petitioner/appellant’s brief was dated and filed on 17/9/2007, wherein three issues for its determination were distilled from the grounds of appeal dated 29/8/2007 and those issues are:-

(1) Whether an order voiding the entire election can possibly flow directly in consequence of the appellant’s petition as it is?

(2) Whether the Election Petition Tribunal can declare the Petitioner as duly elected given the circumstances of this petition?

(3) Whether an election petition Tribunal can void an election entirely on the ground that less than half of the electorates voted instead of reserving votes already recorded and ordering a bye-election in the outstanding area?

After being served with the Petitioner/Appellant’s brief of argument, the 1st Respondent responded by filing his brief of argument on 24th September, 2007 dated 20/9/2007 wherein, he proposed only one issue that called for the determination of the appeal which is, ‘whether the tribunal was in the circumstance wrong to have refused the sole relief the Appellant claimed in his petition i.e. to be declared duly elected’.

On his part, the 2nd respondent, whose brief of argument was dated and filed on 20th of September, 2007 two issues for determination of the appeal were formulated out of the four grounds of appeal contained in the notice of appeal dated 3/9/2007. The dual issues are-

a) Whether in the face of overwhelming evidence the Tribunal was right in declaring the election in Igbo Etiti West Constituency void instead of upholding the victory of the 1st respondent as declared by the 2nd Respondent.

b) Whether in the face of overwhelming evidence the tribunal could not otherwise have come to the conclusion that the petition was filed outside the prescribed 30 days.

With regard to the second appeal i.e. No. CA/E/EPT/5A/2007, the parties also filed their respective briefs of argument. This appeal relates to a Notice of Appeal dated 3rd September 2007 which contains three grounds of appeal. Out of those four grounds of appeal the appellant therein Mr. Okechukwu Simon Nwoke, who is the 1st respondent in the first appeal distilled three issues for determination. Both the 1st respondent on one hand and the 2nd respondents had earlier filed their respective briefs of argument in reply to the brief of argument of the appellant therein, but when on 22nd April, 2010 this court set to hear the appeal, both set of respondents applied to withdraw their Briefs of Argument and the court graciously gave them leave to do so hence the two briefs of argument were struck out. The Appellant/1st Respondent’s brief therefore stands alone for consideration of this appeal.

It is noted by me that from the Notice of Appeal and the arguments proffered in the brief of argument that the appeal touches on jurisdiction since its gravamen borders basically on the competence of the petition, on the contention that it was filed outside the 30 days period stipulated by Section 141 of the Electoral Act 2006. I will therefore in treating the appeal first consider the first issue for determination which relates to the jurisdiction of the tribunal to hear and determine time of the petition in view of the complaint by the appellant/1st Respondent herein that the petition was filed outside the thirty days stipulated by Section 141 of the Electoral Act 2006. Since the issue relates to jurisdiction, if it succeeds that will bring the end of the matter. There will therefore be therefore no need to consider the other issues or even the first appeal.

On this issue, it is the submission of the learned counsel for the Appellant that the tribunal was wrong for dismissing his motion on notice/preliminary objection praying the striking out of the petition for same being filed outside the 30 days period prescribed by the statute. According to him, he had annexed as Exh. A to his motion i.e. the Certified true Copy of Form EC8E(1) which is the official Result Declaration Form used for the said election which clearly bears the date 14th April, 2007 as the date the results of the election were declared and duly signed by the Returning Officer one Ugwu Regina and duly certified by the 2nd respondent. He said Form EC8E (1) is the best evidence to clarify the date the results of election were declared; He said from the said documentary evidence it is not in doubt that results of the said election were declared on 14th April, 2007.

Therefore time for filing petition in the said election begins to run on the 15th of April, 2007 and expired on 14th May 2007 but in this case according to him, the petition was filed on 15th May, 2007 as endorsed by the Secretary of the Tribunal which is outside the 30 days allowed by law. He argued that the tribunal was wrong to hold that the petition was filed on the 14th of April, 2007 instead of 15th May, 2007 adding that it had ignored the documentary evidence before it, especially Form EC8E(1) attached to his motion as well as the averments in the affidavit supporting his motion at page 306 of the Record of Appeal. He further referred this court to the annexure to his Further Affidavit which clarified the date endorsed by the Secretary to the Tribunal which is prima facie evidence of date of filing the petition, which was 15/5/2007 as consistently referred to by the Secretary to the tribunal.

Similarly added the learned appellant’s counsel, the Statement of Witnesses which as provided by the Practice Directions, must also be filed along with the petition were also deposed to on the same 15/5/2007 as the date they were deposed to before her. Although the learned Appellant’s counsel conceded that there are some places where the date 14 – 5 – 2007 appeared in some documents, but he said that none of such documents bearing 14/5/2007 bore the stamp, endorsement or signature of the Secretary to the tribunal and for that reason it can be concluded that the date 14/5/2007 was pre-inserted by the petitioner now 1st Respondent or his learned counsel before the presentation of the petition. He said in any case, it is not the date put by lawyers that is important or relevant but rather the date it was duly filed at the Registry. The date shown in the Secretary’s official stamp should be the date to be reckoned with and not the date appended by the owner or counsel of the process or processes.

In a further submission, the appellant’s counsel also argued that the tribunal failed to scrutinize or closely look at some of the documents or exhibits he annexed to his motion which appeared on pages 342A to 342M of the Record, especially at pages 342E to 342M, where the Secretary to the Tribunal authenticated and signed and indicated that 15/5/2007 was the date of filing of the processes and the petition. He said in arriving at 14/5/2007 as the date of filing of the petition, the tribunal relied on Exhibit CAB annexed to the Petitioner’s counter affidavit to his motion which is a treasury receipt purportedly issued in respect to the filing of the petition which bore 14/5/2007″ as the date of filing. He said in relying on that receipt the tribunal over looked his Further Affidavit at pages 342A to 342R of the Record of Appeal which if properly looked into or considered could raise some dust on the authenticity of the said treasury receipt which was fully explained in the averments in paragraphs 12 to 15 of his Further Affidavit. In those paragraphs of the Further Affidavit, the authenticity of the treasury receipt relied on by the tribunal was questioned and also justified that the said receipt was merely raised or generated just in an effort to defeat the purport of his motion or preliminary objection that the petition was statute barred. He said the averments in his further affidavit referred to above were not controverted by way of further counter affidavit or by whatever means, hence the facts he referred to in his further affidavit having not been controverted or challenged by the petitioner/1st respondent (herein) are deemed admitted. See J. Ejikeme vs Ibekwe (1997) NWLR (pt 514) 592 at 598.

Section 141 of the Electoral Act 2006 provides as below –

“An election petition under this Act shall be presented within thirty (30) days from the date the results of the election is declared” (emphasis supplied)

By the wordings of the above provisions of the Electoral Act 2006 reproduced supra wherein the word “shall” is used it goes without saying that only petition which was filed within thirty days from the date results of the election petitioned against is valid. Where the above provisions of the Act have not been complied with, the petition becomes statute barred and therefore the court or tribunal has no jurisdiction to entertain it. See Otu vs INEC (1999) 6 NWLR (Pt 602).

In the instant case the important thing to determine is when the results of the disputed election were declared by the returning officer as it is from the date the result or return when counting will start to ascertain whether the petition was filed within time or not. It is therefore the date shown on Form EC8E (1) which the Declaration of Result of Election to the State House of Assembly duly signed by INEC Returning Officer that is material here and not any other document or evidence.

Here, a careful perusal of Exhibit A annexed to the motion on notice which is the said Form EC8E(1), (the Declaration of Result form) clearly shows that the result of the disputed election was signed and issued on the 14th day of April, 2007 (See page 306 of the Record). The said form (exhibit) has been duly certified by INEC the 2nd Respondent herein. That exhibit is therefore the best and most reliable evidence to be reckoned with when trying to ascertain the date the results were declared. It is immaterial to harp on who signed it in as much as its issuer INEC has authenticated it as the valid and lawful result declaration form in the said election. It therefore excludes any evidence oral or documentary on that issue. As I said earlier, the date it was issued and by extension therefore when the results were declared returning the 1st respondent as the winner of the election was and still remains the 14th day of April, 2007. Without mincing words therefore, the result of the election in this case was declared and released by the Returning Officer on 14/4/2007. By the provision of Section 141 of the Electoral Act 2006 therefore if the petition was filed beyond or after 30 days from the 14/4/2007 it becomes statute barred. It is however pertinent here to ascertain when time would begin to run in order to determine whether the petition was filed within or outside the 30 days as stipulated by the Act. In doing so, I think it will also be useful to refer to some decided authorities of this court and the apex court where they determined whether a particular action or petition is statute barred or not. In the decision of Fadare vs Attorney General of Oyo State (1982) 4 SC 1 or (1982) NSCC 52 at 60, the Supreme Court referred also to the decision of Board of Trade vs Cayzer Irvine & Co. Ltd (1927) AC 610 where it held that-

“Time, therefore begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which materials to be proved to entitle the plaintiff to succeed!”

Applying the above principle to the facts and surrounding circumstance of this case, time will begin to run on 14th April, 2007 which was the date Exhibit A annexed to the motion which was the Declaration of Result of the Election on which the 1st respondent was declared or returned winner of that election. The time to institute or file the petition by the petitioner against the respondents was as from that day when all material facts required by him to prove the case/petition had happened. Now since by the provisions of the Act the petitioner/1st respondent had 30 days within which to file his petition, he is therefore duty bound to file or present his petition at the tribunal between 14 April, 2007 and 14th of May, 2007. Once it is computed or counted and found that he filed the petition outside this period, it becomes time or statute barred.

It should be emphasized here, that compliance with the statutory provisions on time within which petition in an election petition should be filed is a fundamental precondition which must be strictly adhered to, as breach of it amounts to an incurable defect. Failure to comply with the provisions of Section 141 of the Electoral Act is very fatal as it erodes or ousts the jurisdiction of the court or tribunal to adjudicate, and determine the petition and renders it incompetent. See Nonye vs Anyichie (1989) 2 NWLR (Pt 101) 110, Otu vs INEC (supra).

Having determined or ascertained when the result of the election was declared, let us now consider when the petition in the instant appeal was filed, or presented. It is trite law that in order to do justice, court is entitled to look at a document in its file while writing judgment or ruling even if such document was not tendered and admitted as an exhibit at the trial. See ANPP & Anor vs Argungu & Ors (2009) 17 NWLR (Pt 1171) 445 at 458 paragraph E – F. But in the instant case I will simply restrict myself to consideration of documents annexed as exhibits to the motion, counter or further affidavit filed before the tribunal by the parties herein. But before doing so My Lords, permit me to stress and emphasis on the need for strict compliance with the provisions of Section 141 of the Electoral Act 2006 by parties in filing or presentation of election petitions. This court had in the case of Malali vs Kachallah (1999) 3 NWLR (Pt 594) emphasized on filing of petition before the tribunal within the time stipulated by the statute.

In the case of Kamba vs Bawa (2005) 4 NWLR (pt 914) 43 and Ngoh vs Nodke (1960) SC NLR 205, Ezeani vs Okosi (1999) 3 NWLR (Pt 596) 623. The courts also emphasized that petitions are filed or presented with Secretary of the tribunal and also shall on such presentation the Secretary/Registrar give a certificate or receipt to that effect. It is observed by time, that all the documents related to the filing of the petition before the Secretary bore and were endorsed and stamped by the Secretary of the tribunal on 15th of May, 2007 which signified that that was the day of the filing or presentation of the petition before her. Therefore, any where the date, 14th May, 2007 appeared could mean or is an indication of the date such document(s) might have been prepared by the author(s) and no more. All those documents relating to the filing of the petition were signed and authenticated by the Secretary of the tribunal on 15th May, 2007 being the date of filing or presentation of the instant petition and the documents or processes accompanying it. The tribunal is therefore in error when it held thus –

“We have gone through our Record and on the face of the petition before us, it is shown that the Petition was filed on 14th May 2007. In the face of the clear documentary evidence before us, we are unable to agree with the respondents that this petition was filed on 15th May 2007. We have also take (sic) note of the Receipt attached to the counter affidavit of the Petitioner – See Paragraph 3(1) of the Schedule to the Electoral Act which provides that the Secretary on filing a petition give (sic) a receipt. See Buhari vs Obasanjo (2003) 17 NWLR 423”

Now from the above finding by the tribunal, it is clear that it is of the view that the petition was filed on 14/5/2007 since it disagreed with the respondents’ counsel submission that the said petition was filed on 15/5/2007. In the same ruling now appealed against it had this to say after referring and relying on the provisions of Order 21 Rule 1(g) of the Federal High Court (Civil Procedure) Rules 2006.

“Thus the date to start calculating 30 days for the purpose of this petition is 16th May 2007. By simple arithmetical calculation 30 days from 16th April 2007, ends on 15th May, 2007.”

These two findings are apparently contradictory because going by its mode of calculation since it believed that the petition was filed on the 14/5/2007, in order to get 30 days from 15/4/2007 counting should start from 15/4/2007 and not from 16/4/2007. But this contradicts the authentic date borne in the Declaration of Result which is the only approved or reliable evidence in determining when results were declared and also the reliable date shown in the document on when the petition was filed or presented to the Secretary of the tribunal.

It would appear to me that the tribunal in arriving at its finding that the petition was filed on 14/5/2007 heavily relied on the date of 14/5/2007 which appeared on a treasury receipt annexed to the counter affidavit filed against the motion by the petitioner and marked Exhibit CAB. With due deference to the learned judges of the tribunal, I think they glossed over or totally overlooked the contents of a further affidavit filed in response to the said petitioner’s counter affidavit. Had it been that the learned judges of the tribunal looked at the further affidavit, their minds would have been disabused in their findings supra probably because of its (receipt’s) ingenuity. For instance, the treasury receipt in question has serial No 2004037490 and is dated 14th May, 2007. But the receipt issued before it with serial No. Z004037489 bears the date of 16th July 2007 while the receipt immediately following the receipt in dispute with serial No. 200403791 is still blank signifying that it was yet to be issued or used. Now the question that boggles ones mind is, how come that the receipt issued before the one in dispute be used or issued more than two months later i.e. on 16/7/2007. All these pieces of facts were deposed to by the 1st Respondent in his further affidavit. No further counter affidavit was filed by the 1st Respondent in this appeal to counter or challenge those facts. With regret, the tribunal also failed to make any reference or pronouncement on these facts in the ruling now being appealed against which ipso facto implies that it either glossed them over deliberately or due to an oversight. It neither referred to them even in passing nor analyse them and then disbelieve them. In any case, it is trite law, that facts deposed to in an affidavit which is not entered, controverted or challenged is deemed to have been admitted or accepted and a court/tribunal can accept and act on it See Ejikeme vs Ibekwe (1997) NWLR (Pt 514) 92 at 518. This court in the case of Kamba vs Bawa (2005) 4 NWLR (Pt 914) 43 held that receipt is not recognized evidence of presentation of petition.

The law is now well settled and is therefore beyond any doubt that any election petition filed outside the period stipulated by the statute becomes statute barred and therefore in competent. There are multiplicity of decided authorities on this of which only few of them will be cited here. See Umar vs Onikata (1999) 3 NWLR (Pt 598) p. 90, Bilbis vs Tsafe (1999) 4 NWLR (Pt 597) 24; Saliu vs Adesanya (1999) 2 NWLR (Pt 592) 533. In the instant case and from what I have posited above I am in entire agreement with the learned 1st respondent’s counsel submission that the petitioner’s petition was filed outside the 30 days stipulated in the provisions of Section 141 of the Electoral Act 2006. I am also of the view that the tribunal was wrong in its finding and conclusion that the petition was filed within the 30 days period stipulated by the statute. The petition filed before it, having filed out of time was thus filed without due compliance with the provisions of the statute. It is therefore incompetent and for that reason the tribunal lacked jurisdictional powers to entertain, adjudicate and determine same.

The first issue is therefore resolved in favour of the appellant herein.

Thus, having resolved the first issue in favour of the appellant and in view of my finding that the petition is incompetent and that the tribunal lacked jurisdiction to entertain same, I feel it will be a futile exercise to consider the other issues raised in this appeal.

On the whole, the appeal is adjudged meritorious and is allowed by me. The petition No. NAGL/EPT/EN/SH/03/2007 filed before the tribunal which is the subject matter of these appeals Nos CA/E/EPT/5/2007 and CA/E/EPT/5A/2007 is hereby struck out for want of competence. Now having allowed appeal No CA/E/EPT/5A/2007 to the effect that the petition filed before the tribunal is incompetent and for that reason having struck it out, I am of the view that it will be otiose to consider the first or substantive appeal No.CA/E/EPT/5/2007 since it is based or predicated on an incompetent petition. The said appeal therefore has to be struck out and it is accordingly so struck out too. No orders to costs, so each party to bear its own costs.

MOHAMMED L. TSAMIYA, J.C.A.: I agree

AYOBODE O. LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in advance the Judgment of my learned brother, AMIRU SANUSI JCA I am in complete agreement with His Lordship’s reasoning and conclusions. I have nothing to add. I also abide by all orders made by my learned brother in the Judgment including the order as to costs.

Appearances

P.M.B. OnyiaFor Appellant

AND

Ozor Ochiagha, Ugochukwu

E.E. OgboduFor Respondent