CHIEF G. TAGBO IKE V. PEOPLES DEMOCRATIC PARTY & ORS.
(2010)LCN/4001(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of September, 2010
CA/E/EPT/06/2009
RATIO
RETURNING OFFICER: WHAT THE STATUTORY DUTY OF A RETURNING OFFICER UNDER SECTION 69 ELECTORAL ACT, 2006 ENTAILS
To be sure that the duty of the Returning Officer to declare the result is quite different from the issuance of a Certificate of Return, this Honourable Court highlighted the statutory duty of a Returning Officer under Section 69 (c) of the Act as follows: “The decision of the returning officer on any question arising from or relating to – (a) (b) (c) declaration of scores of candidates and the return of a candidate shall be final subject to review by a tribunal or court in an election petition proceeding under this Act.” See Alataha vs. Asin (1999) 5 NWLR (Pt. 601) 32. PER MOJEED ADEKUNLE OWOADE, J.C.A.
WHETHER A PARTY CAN BE DECLARED THE WINNER OF AN ELECTION; WHEN IS A CERTIFICATE OF RETURN ISSUED
In similar circumstances, as in the present case Nwosu-Iheme, JCA, held in the case of Onyekweli vs. 1NEC (2008) 14 NWLR (Pt. 1107) 317 at 355 – 356 that: “…..Since the respondent declared PDP as the winner of the said election, the appellant Charles Udogwu Onyekweli is deemed in law to be the candidate of PDP that won the said election.” Finally, the scores of candidates in an election are declared only at the time the result of the election is announced by the appropriate returning officer under section 28 of Electoral Act, 2006. No announcement is made at the time of issuance of a certificate of return, neither is the result declared at that point. Indeed, a certificate of return is issued only after a winner has been declared and the scores of the candidates known. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN M. OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
CHIEF G. TAGBO IKE Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY
2. HON. DR. OKECHUKWU UDEH
3. BARR. HANDEL OKOLI
4. THE RETURNING OFFICER,
(ORUMBA NORTH/SOUTH FEDERAL CONSTITUENCY & 428 OTHERS) Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This appeal presents similar facts and circumstances with Appeal No. CA/E/EPT/07/09 with the difference that the appellant in Appeal No. CA/E/EPT/07/09 was the candidate for the Action Congress in the election to the House of Representative for Orumba North/South Federal Constituency while the present appellant was the candidate for the All Peoples Grand Alliance (APGA) in the same election. In both cases the names of the PDP candidates were not known before the declaration of the election results. As a result of this development, an earlier election petition tribunal ruled that there was no declaration of result as at 28/04/07.
Petitions presented to a subsequent tribunal after the courts have declared the names of the proper candidates of the PDP were held to be statute barred. The arguments that a previous election tribunal had ruled that there was no declaration of result or that the certificate of return could be equated with the declaration of result were rejected.
The following briefs are relevant for the determination of the appeal:
1. Appellant’s Brief of Argument dated 7th August, 2009, and filed on the same date – settled by C. Chuma Oguejiofor, Esq.
2. 1st Respondent’s Brief of Argument dated and filed on 25/2/10 – settled by Ikechukwu Maledo, Esq.
3. 2nd. Respondent’s Brief of Argument incorporating Notice of Preliminary Objection dated and filed on 15/9/09 – settled by G. Ofodile Okafor, SAN.
4. 4th – 431st Respondent’s Brief of Argument dated 3/3/10 and filed on 4/3/10 – settled by S. O. Ibrahim.
5. Appellant’s Reply to the 1st Respondent’s Brief of Argument dated and filed 2/2/10 – settled by C. Oguejiofor, Esq.
6. Reply Brief of the Appellant to the 2nd Respondent’s Brief of Argument dated and filed 18/9/09 – settled by C. Oguejiofor, Esq.
7. Reply Brief of the Appellant to 4th – 431st Respondent’s Brief of Argument dated and filed 11/3/10 – by C. Oguejiofor, Esq.
First, in this appeal I have considered the preliminary objection raised by the 2nd respondent and have come to the conclusion that the items of preliminary objection by the learned senior counsel for the 2nd respondent are mere irregularities which do not go into the substance of the appeal, the preliminary objection by the 2nd respondent is accordingly overruled.
In the main appeal, the case for the appellant shall be placed on one side of the scale while the case of the 1st, the 2nd and the 4th – 431st respondents shall be put on the other side of the scale as the case of the respondents. This is because of the shared common interest in the case of the respondents and also for reasons of convenience.
This appeal, shall be decided on the issues nominated by the learned counsel for the appellant as follows:
“(i) Whether the tribunal was right in holding as it did that the result of the election to the Orumba North/South Federal Constituency was declared on 28/4/07 when the first tribunal that had entertained the case had determined that no such result had been declared for the same Federal Constituency on 28/4/07 which determination or decision has not been set aside or even been a subject of an appeal at all.
(ii) Whether the return made by the Chairman of INEC on 6/3/09 was not a declaration of result of the election since a winner in the election had not emerged before that date and whether time for filing an election petition can start running before an appropriate Election Petition Tribunal has been constituted with a secretariat in place to receive the Election Petitions.”
On Issue No. 1, in the instant case as was the case with Appeal No. CA/E/EPT/07/09, there is no better way and perhaps better words to convey to the appellant that his tardiness in not filing an appeal against the Ruling of the 1st Tribunal led to the present quagmire. This is because, the 1st tribunal was clearly in error to have struck out the petition of the appellant on the ground inter alia that “no person has been declared the winner of the election” when in fact the Returning Officer had declared the PDP as the winner of the majority votes in the election on 28/4/07. Clearly, the lower tribunal was not wrong for refusing to follow an erroneous view of a court of coordinate jurisdiction.
Issue No. 1 is resolved against the Appellant.
On Issue No. 2, the distinction made between a declaration of result properly so called and a certificate of return as a confirmation of the conclusiveness of the election made by the lower tribunal is unassailable.
Clearly, the Certificate of Return do not qualify as a declaration of result within the meaning of Section 28(2) (e) and 70 of the Act.
Section 28(2) (e) of the Act provides:
“Results of all the elections shall be announced by the Returning Officer at the Federal Constituency Collection Centre.”
Section 70 of the Electoral Act provides:
“In an election to the office of the President or Governor whether or not contested and in any contested election to any other elective office, the result shall be ascertained by counting the votes cast for each candidate and subject to the provisions of Sections 133,134 and 179 of the Constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate Returning Officer.”
Quite distinctly but separately Section 76 of the Electoral Act, 2006 provides for a Certificate of Return as follows.
“A sealed Certificate of Return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act. Provided that where the Court of Appeal or the Supreme Court being the final Appellate Court in any election petition as the case may be nullifies the Certificate of Return of any candidate, the Commission shall within 48 hours after the receipt of the order of such court issue the successful candidate with a valid Certificate of Return.”
To be sure that the duty of the Returning Officer to declare the result is quite different from the issuance of a Certificate of Return, this Honourable Court highlighted the statutory duty of a Returning Officer under Section 69 (c) of the Act as follows:
“The decision of the returning officer on any question arising from or relating to –
(a)
(b)
(c) declaration of scores of candidates and the return of a candidate shall be final subject to review by a tribunal or court in an election petition proceeding under this Act.”
See Alataha vs. Asin (1999) 5 NWLR (Pt. 601) 32.
In the instant case, the appellants should not find it strange that the Returning Officer in the election that held in the Orumba North/South Federal Constituency on 28/4/07 declared the PDP as winner. Because in effect, the 2nd respondent who later emerged as the candidate of the PDP would have been deemed the candidate of the PDP as at 28/4/07.
See Oguntade, JSC, in Amaechi vs. INEC (supra).
In similar circumstances, as in the present case Nwosu-Iheme, JCA, held in the case of Onyekweli vs. 1NEC (2008) 14 NWLR (Pt. 1107) 317 at 355 – 356 that:
“…..Since the respondent declared PDP as the winner of the said election, the appellant Charles Udogwu Onyekweli is deemed in law to be the candidate of PDP that won the said election.” Finally, the scores of candidates in an election are declared only at the time the result of the election is announced by the appropriate returning officer under section 28 of Electoral Act, 2006. No announcement is made at the time of issuance of a certificate of return, neither is the result declared at that point. Indeed, a certificate of return is issued only after a winner has been declared and the scores of the candidates known. Ground 3 of the Appellant’s Grounds of Appeal on which the second part of Issue No. 2 was based, that is the question of the tribunal not being in existence at the time the result was declared or not having a registry in place was not submitted to the tribunal for adjudication and expectedly, no decision was reached on the same.
Appellant’s Ground 3 raises a new issue and the appellant having not obtained leave before raising the same the issue is incompetent. Appellant’s Ground 3 and the sub-issue in Appellant’s Issue 2 distilled therefrom is incompetent and is accordingly struck out.
Issue No. 2 is also resolved against the Appellant.
Having resolved the two issues in this appeal against the appellant, this appeal based on the same facts with Appeal No. GA/E/EPT/07/2009 also lacks merit. It is accordingly dismissed. N30,000.00 costs of this appeal is awarded to the respondents as against the appellant.
CONTRIBUTION
ABUBAKAIR JEGA ARDUL-KADIR J.C.A.: I have the privilege of reading the draft Judgment just delivered by my learned brother, Owoade, JCA. I agree with his reasoning and conclusion that this appeal lacks merit and ought to be dismissed. I too dismiss it with costs as assessed in the said Judgment.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read hitherto the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA. His Lordship has exhaustively dealt with all the issues in contention and I agree with his reasoning and conclusion. I dismiss the appeal and abide by the order as to costs.
Appearances
E. N. Onyibo, Esq.;
C. Chuma Oguejiofor’sFor Appellant
AND
I. Maledo, Esq.
G. Ofodile Okafor, SAN,;
K.O.K. Agbowo, Esq.
S. O. Ibrahim, Esq.,
Nkiru Frank-Mmegwa (Mrs.)For Respondent
