AIYELABEGAN KAYODE A. & ANOR v. SALMAN ABDULFATAI & ORS
(2012)LCN/5721(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of December, 2012
CA/IL/EPT/SH/2/2012
RATIO
ELECTION PETITION: WHEN WILL AN ELECTION PETITION BE INITIATED
By the provisions of section 285(6) (a) (b) (c) and Section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria, as well as Section 134 of the Electoral Act 2010 (as amended) an election petition shall be filed within 21 days after the date of the declaration of result of Election and judgment thereon shall be delivered within 180 days by the Election Tribunal. The first Election Petition Tribunal in its judgment after taking all the necessary evidence “upheld the elections in five Wards and ordered for a fresh election in two Wards. This decision was upheld by the Court of Appeal. It follows therefore that the complaint in respect of the elections in the five wards have been satisfactorily resolved. To bring such petition again for adjudication will definitely amount to an abuse of Court process as alluded to by the learned Counsel for the 1st and 2nd Respondents. see African Recorp v. JOP Const.(Nig) Ltd. (2003) 13 NWLR (Pt.838) 6092 Opekun v. Sadiq (2003) 5 NWLR (Pt.814) 237 where an abuse of court process is about to be occasioned, the Court seized of the matter has the power to prevent it. See Fasakin Foods (Nig) Co. Ltd,. v. Shosanga (2003) 17 NWLR (Pt.849) 237. PER PAUL ADAMU GALINJE, J.C.A.
Justice
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE O. F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
AIYELABEGAN KAYODE A. & ANOR – Appellant(s)
AND
SALMAN ABDULFATAI & 2 ORS – Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National/State Houses of Assembly Election Petition Tribunal henceforth to be referred to as the Tribunal sitting at Ilorin, which was delivered on the 17th of October, 2012.
The facts of the case that gave rise to this appeal are straight forward and simple and are ably set out in the parties briefs of argument. I will therefore recount the facts albeit briefly in this judgment.
On the 26th of April 2011, State Houses of Assembly elections were held throughout Kwara State. At the end of the elections which was conducted by the 3rd Respondent, the 1st Respondent was declared the winner and returned elected member of the Kwara State House of Assembly representing Ilorin North/West Constituency. The 1st Appellant herein who was sponsored by the 2nd Appellant in that election was aggrieved by the result of the election and therefore presented a petition No.EPT/KWA/SH/8/2011 of 18/5/2011 challenging the result of the election at the Tribunal. The Tribunal members comprising Justice Bitrus G. Sanga as Chairman and John Awa Viko and Justice Stephen Eroh Chukwu as members heard the petition and in a considered judgment which was delivered, on the 12th day of October 2011 nullified the election in two Wards namely Balogun Alanamu and Oloje Wards and ordered the 3rd Respondent to conduct election in the two Wards and add the result to the results of the remaining five wards whose results were upheld before the announcement of the final result for the constituency.
The Appellants were dissatisfied with the decision of the Tribunal. Their appeal to the Court of Appeal was allowed on the ground that the Tribunal did not properly evaluate the oral and documentary evidence before it. A retrial of the petition was ordered to be conducted by another Tribunal strictly on the pleadings already existing on the record.
As a result of the decision of this Court, another Tribunal with Justice S. O. Itodo as Chairman and Justice Joy Isaiah Unwana and Justice John Igboji as members was set up to hear the petition. Relying on the case of ANPP v. Goni (2012) 7 NWLR (pt.1298) 147 the new Tribunal declined jurisdiction and struck out the petition on the ground that the one hundred and eighty (180) days within which its judgment should be delivered from the date of filing the petition as provided for; by section 285(6) of the 1999 Constitution of the Federal Republic of Nigeria had since expired.
Once again, the Appellants were unhappy with the decision. Being aggrieved, they appealed to this Court. Parties were heard, and in a reserved and well considered judgment, this court set aside its earlier decision in which it ordered a retrial. In its place the judgment of the Tribunal delivered on the 12th, day of October 2011 in which election in Balogun Alanamu and Oloje Wards was nullified was restored. The 3rd Respondent was therefore ordered to conduct election in the two Wards. For avoidance of doubt, this is what this Court said in its judgment of 21/4/12 –
The necessary consequence of this is that the judgment of the Election Tribunal delivered on the 12/11/11, which ordered a bye election in the two wards whereof the elections were inconclusive, revives (sic) and subsists and must be complied with by the 3rd Respondent. Therefore the Ruling of the second Tribunal, striking out the petition on 22nd February, 2012, is hereby set aside; having been reached without jurisdiction. Accordingly, the 3rd Respondent shall comply with the said earlier order of the Election Tribunal, delivered on 12/11/11 in the petition No. EPT/KW/SH/8/2011.”
Consequent upon the order of this Court as reproduced above, the 3rd Respondent conducted elections in the two Wards on the 30th June 2012. At the end of the election, 1st Respondent was again declared winner of the election when the votes from the two wards were added to the votes from five wards where fresh elections were not ordered.
The Appellants filed a petition before the Tribunal on the 20th of July 2012 in which they challenged the result of the election. In doing so, the petition covered allegations of malpractices and noncompliance or irregularities in all the seven Wards that make up the Ilorin North/West constituency.
The Respondents filed a reply to the petition and further issued a notice of preliminary objection to the competence of the petition or in the alternative strike out paragraphs 1 – 23, 33 and 36 of the petition which deal with allegations of malpractices, noncompliance and irregularities in the five Wards where fresh elections did not take place. These Wards are Adewole, Ajikobi, Ogidi, Ojuekun/Zaruni and Ubandawaki., The Appellants filed a counter affidavit. The Tribunal, chaired by Justice J. J. Jella and Justice J. A. Viko and Justice C. L. Dabub as members heard the preliminary objection on the 16th of October, 2012 and in a reserved, and considered ruling which was delivered on the 17th day of October upheld the objection and struck out grounds 1 – 23, 33 and 36 of the petition as they relate to the holding of Election conducted on 26th April 2011 in the five Wards on the ground that the Tribunal’s mandate is restricted to the two Wards of Balogun Alanamu and Oloje only where fresh election was conducted on the 30th of June 2012.
It is against this ruling that the Appellants have again appealed to this Court. Their notice of appeal which was filed on the 24th of October 2012 contains three grounds of appeal. Parties filed and exchanged briefs of argument The Appellants formulated two issues at page 7 of their joint briefs of argument dated and filed on the 16th November 2012. These issues read as follows:-
“i. Whether the contents of Exhibits A, K, A.01, 02, 03 and 04 contain anything to suggest and or imply the conclusion or inference that the defunct Tribunal had earlier, decided the disputes or allegations or malpractices and irregularities in Ajikobi, Adewole, Ubandawaki, Ogidi and Ojuekun/Zarumi Wards being the remaining five wards which the trial Tribunal declined to adjudicate.
(ii) Whether the trial Tribunal was right by striking out the paragraphs 1 – 23, 33 and 36 of the petition No.EPT/KWA/SH/1/2012 to hold that its mandate is restricted to two Wards (Balogun Alanamu and Oloje Wards) on the grounds that the defunct Tribunal had decided the disputes arising from the five wards not of the entire seven Wards that made up Ilorin North/West Constituency in its judgment was restored by the Court of Appeal in the judgment delivered on 6th April, 2012?
The 1st and 2nd Respondents, formulated one issue only at pages 3 – 4 of their joint brief of argument, dated and filed on the 20th November, 2012. The sole issue reads as follows:-
“Whether heaving regards to the constitutional time limit for determining an election petition and the judgment of the defunct election Tribunal in petition No. EPT/KWA/SH/8/2011 delivered on the 12TH of November, 2011 and affirmed by the judgment of the Court of Appeal, Ilorin Division in Appeal No.CA/IL/EPT/SH/1/2012 delivered on 21/4/2012, The trial Election Tribunal was not right to strike out the paragraphs of the Appellants’ Petition pertaining to the five (5) Wards of Ajikobi, Adewole, Ogidi, Ojuekun/Zarumi and Ubandawaki (not affected by the bye election Conducted in respect of Balogun Alanamu and Oloje Wards, on the 30/06/2012 bye election and declining jurisdiction in respect thereof.”
For the 3rd Respondent, two issues have been formulated for determination of this appeal. They are hereunder set out as follows:-
1. “Whether the Honourable Election Petition Tribunal have (sic) jurisdiction to entertain the petition particularly those related to the facts pleaded in paragraphs 1 – 23, 33 and 36 of the petition.
2. Whether the contexts of Exhibits A.K.A 01, 02, 03 and 04 contained facts to suggest that the defunct Tribunal had previously adjudicated upon and determined issues in dispute in Ajikobi, Adewole, Ubandawaki, Ogidi and Ojuekun/Zarumi Wards of Ilorin North/West Constituency.”
Issue 1 is said to be distilled from Ground 3 while issue 2 is said to arise of grounds 1 and 2 of the appeal.
I have read the judgment against which this appeal lies and the briefs of argument of the parties. From all indications, the only issue calling for determination of this appeal is whether the learned Judges of the Tribunal were right when they struck out grounds 1 – 23, 33 and 36 of the grounds of the petition that touched on the five wards where fresh elections were not held, on the ground that those grounds do not fall within the Tribunal’s mandate. However because this is an election petition appeal, the argument of the parties will have to be considered on the issues formulated by them before I resolve the sole issue identified by me.
While arguing issue 1, Mr. A. O. Adetayo, learned counsel for the Appellant made reference to Exhibit A. K. A. 01, which is the copy of the judgment delivered by the Tribunal on the 12/11/ 2011 and quoted some passage of the judgment which are irrelevant in this appeal to support his case. The passages quoted are to the effect that the election of 26/4/2011 was inconclusive as at the time Form EC 8E(1) was made and that it is only after the collation of the result from the two wards that the result will be announced and that the winner in the constituency will be declared. Learned Counsel did not disclose in his argument that it was the result of the two wards that were nullified and the other results were spared. By sparing the results of the five wards, the Tribunal had clearly resolved that those results were adjudged correct and free from any malpractice. By that decision, the Tribunal had affirmed the results of the five wards, and that decision was affirmed by this court in its judgment which was delivered on the 21/4/2012.
Learned counsel made reference, to Exhibit A.K.A. 02 which he said is the judgment of this Court which was delivered on the 6th of January, 2012, I wish to state clearly here that, that judgment cannot now be referred to as the judgment of this Court, since it was declared a nullity and subsequently set aside by this Court in its judgment which was delivered on the 21/4/12. For avoidance of doubt, in its judgment of 21/4/12, this court at page 573 of the record said:
“And to the extent that the decision and order of this Court delivered on 6/1/12 was reached without jurisdiction in view of the recent decisions of the Supreme Court, it is my humble view, that that defect has had a vitiating effect on the decision and order of this court in the appeal No. CA/IL/EPT/13/2011, and the entire Judgment cannot stand, as same becomes a nullity. It is hereby set aside.”
Clearly a judgment that is set aside for being a nullity cannot be cited as authority in any case. The reference to it in the Appellant’s brief is at large and therefore has no effect whatsoever in the learned Counsel’s submission. ,
Exhibit A.K.A. 03 merely revives the order of the Tribunal which directed the 3rd Respondent to conduct election in two out of the 7 Wards in Ilorin North/West constituency. Appeals are against the decision and/or orders of the, court and not against the reasoning contained in the judgment. The learned Counsel for the Appellants submitted here that the content of Exhibit A.K.A. 03 did not do more than reviving the contents of Exhibit A.K.A. 01 which held that the election process for the honourable seat for Ilorin North/West constituency of Kwara State previously commenced on 26th April 2011 was inconclusive and incomplete. This argument is without basis. The Order of the Court, had to do with the two Wards where irregularities were discovered in the election process. The inconclusiveness and incompleteness of the result in the ward was because of the absence of the results from the two Wards whose results were nullified. I therefore do not agree with the learned Counsel for the Appellants that the results in the 5 Wards were also affected.
Exhibit A.K.A. 04 cannot validate a petition touching on the results of the five wards where- election did not take place on 30/06/2012. This is so because the decision in respect of those Wards was based on the election of 26/4/2011 and on the petition which was presented against the declaration of the result of that election on the 18th of May 2011. As at the- date Exhibit A.K.A. 04 which is Form EC 8E (1) was issued, that is 30th June 2012, 180 days from the date of presentation of the petition had elapsed. The Tribunal therefore had no jurisdiction to entertain petitions touching on the five Wards. Having therefore commented on Exhibits A.K.A. 01 – 04, the question is, was the Tribunal right to have declined jurisdiction to hear those parts of the petition touching on the results of the five Wards.
Learned Counsel for the Appellants insisted that the Tribunal was wrong in that the election process was only concluded on the 30th of June 2012 and any party aggrieved is at liberty to present a petition from that date.
Mr. A. Bamidele, learned Counsel for the 1st and 2nd Respondents, relying on Section 285(6) of the 1999 Constitution of Nigeria as amended submitted that the Tribunal was right in striking out the grounds of the petition touching on the five Wards because it had no jurisdiction to hear such petition as the 180 days provided for it to deliver judgment in such petition from the time it was filed had elapsed. In a further argument, learned Counsel submitted that the Tribunal, had finally and effectually determined the petition No. EPT/KWA/SH/8/2011 between the parties in respect of the 5 Wards and any petition on the same 5 Wards is an abuse of Court process. In aid learned Counsel cited Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt.200) 659 at 689. According to the learned Counsel, that judgment constitute an estoppel per rem judicatem. In aid learned Counsel cited Afolabi v. Governor of Osun State (2003) 7 S.C. 55 at 61 – 63, Ajiboye v. Ishola (2006) 6 – 7.
Learned Counsel urged the Court to dismiss the appeal.
Mr. Tunde Salako and Jacob Ayanda, learned Counsel for the 3rd Respondent in their argument, submitted that a mater having been decided by a competent Court of jurisdiction on the same subject matter, cannot be adjudicated upon by the same Court or Tribunal again. It is their further submission that by the combined effect of the judgment of Tribunal (Exhibit A.K.A. 01 which was delivered on the 12th September, 2011 and which was also upheld by this Court on 21/4/12 in which repeat election was ordered only in Balogun Alanamu and Oloje Wards respectively, the Petitioners cannot re-litigate by way of presentation of fresh petition in those five Wards.
By the provisions of section 285(6) (a) (b) (c) and Section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria, as well as Section 134 of the Electoral Act 2010 (as amended) an election petition shall be filed within 21 days after the date of the declaration of result of Election and judgment thereon shall be delivered within 180 days by the Election Tribunal. The first Election Petition Tribunal in its judgment after taking all the necessary evidence “upheld the elections in five Wards and ordered for a fresh election in two Wards. This decision was upheld by the Court of Appeal. It follows therefore that the complaint in respect of the elections in the five wards have been satisfactorily resolved. To bring such petition again for adjudication will definitely amount to an abuse of Court process as alluded to by the learned Counsel for the 1st and 2nd Respondents. see African Recorp v. JOP Const.(Nig) Ltd. (2003) 13 NWLR (Pt.838) 6092 Opekun v. Sadiq (2003) 5 NWLR (Pt.814) 237 where an abuse of court process is about to be occasioned, the Court seized of the matter has the power to prevent it. See Fasakin Foods (Nig) Co. Ltd,. v. Shosanga (2003) 17 NWLR (Pt.849) 237.
The Tribunal by striking out those offending grounds was merely invoking its powers to prevent an obvious case of abuse of Court process
I therefore agree with the Tribunal, that its mandate is limited to the fresh election conducted by the 3rd Respondent in the two wards, namely Balogun Alanamu and Oloje Wards.
This is the 3rd appeal from the decision of the Tribunal in this case. I do not think learned counsel for the Appellants is contributing positively to the Appellants case. Interlocutory appeals have the tendency of slowing down the main petition. It will be in the interest of the Petitioners if the interlocutory appeals are taken up with the main appeals in the final decision concerning the substantive case. Indeed there must be an end to litigation, when such occurs, Counsel can still find other means of livelihood.
For all I have said, I find this appeal lacking in merit, and same is hereby dismissed.
The Respondents are entitled to the cost of this appeal which I assess at N30,000.00 for each Respondent and against the Appellants.
ITA GEORGE MBABA, J.C.A.: I agree.
OBANDE O. F. OGBUINYA, J.C.A.: I agree.
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Appearances
Mr. S. O BabakebeFor Appellant
AND
Mr. AbdulWahab Bamidele with him is Ahmed AbdulYakeen and M. T Usman for the 1st and 2nd Respondents.
Mr. Tunde Salako with Jacob Ayanda for the 3rd Respondent.For Respondent
