CHIEF HUMPHREY ANUMUDU v. CHIEF ACHIKE UDENWA & ORS
(2003)LCN/1475(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of October, 2003
CA/PH/EPT/199/2003
RATIO
PETITION: PARTIES TO A PETITION
“By the unambiguous provisions of S. 133(2) of the Electoral Act, it is imperative and incumbent on the petitioner to join all of them as they are all interested and necessary parties in the petition if it is to be brought to a complete and effectual determination. See BASHIR v. BUBA AUDU (1999) 5 NWLR PT 603 433 AT 439 B-E BAAB V. TARASHIYA (1999) 5 NWLR (PT.603) 668 AT 473, NWOKE V. EBEOGU (1999) 6 NWLR (PT.606) PT. 237 AT P.258, ONOYON V. EGARI (1999) 5 NWLR (PT.603) 416 AT 423D TO 424D.” PER ALBERT GBADEBO ODUYEMI, J.C.A.
PETITION: WHERE A PETITION IS STATUTE BARRED
“It is trite that a party alleging that a petition was statute barred should particularly plead same. The computation of the time must be known. An issue that was not before the Tribunal cannot obviously now form a ground of appeal. The onus was on the petitioner to produce form EC8 E (1) the declaration of result. The conclusion of the Tribunal that the petition was filed out of time is not sustainable.” PER ALBERT GBADEBO ODUYEMI, J.C.A.
JUSTICES
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADELEKE Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
Between
CHIEF HUMPHREY ANUMUDU Appellant(s)
AND
CHIEF ACHIKE UDENWA & 93 ORS Respondent(s)
ALBERT GBADEBO ODUYEMI, J.C.A. (Delivering the Leading Judgment):
The appellant was one of ten contestants for the office of Governor of Imo State of Nigeria at the Presidential and Governorship Elections held or 19th April 2003 Appellant was sponsored for the election as a candidate by the All Nigeria Peoples part – a registered political Party.
The 1st Respondent also contested the election for the same office. The 1st Respondent contested as a candidate sponsored by the Peoples Democratic Party – also a registered political Party.
The 3rd Respondent as Returning Officer in respect of the Office of Governor of Imo State returned the 1st Respondent as winner of the election.
The Appellant felt dissatisfied by the return and on 20th May 2003 filed before the National Assembly, Governorship and Legislative House Tribunal set up for Imo State an election petition upon the following grounds:
(a) The Election was invalid by reason of substantial non-compliance with the Provisions of the Electoral Act and the Guidelines.
(b)The purported election of the 1st Respondent as Governor of Imo state was characterized by corrupt practices, gross irregularity, electoral malpractice and large scale violence in the three senetorial zones of Orlu, Okigwe and Owerri that made up Imo state which the 1st respondent and his Agents encourged and benefitted immensely from, through unwarranted allocation of votes to the detriment of the Petitioner and other contestants.
Appellant in the petition listed paragraphs 6-39 as particulars in support of the Grounds of the Petition and claimed in paragraph 40 the following reliefs:
“40. WHEREFORE, on the basis of the above mentioned acts of the Respondents, your Petitioner prays as follows:
(a) That it be determined that the 1st Respondent (Chief Achike Udenwa of PDP) was not duly elected or returned as the Governor of Imo State.
(b) That the purported election of the 1st Respondent was voided by irregularities and was substantially conducted contrary to the Electoral Act of 2002.
(c) The election of 1st Respondent was voided by corrupt practices.
(d)An order of the court cancelling the Election and the return of the 1st Respondent as the Governor.
(e) An order of court on the 2nd Respondent to conduct another Election for the contestants.”
The 1st Respondent filed a conditional Memorandum of Appearance to the petition on 30th May 2003 before the Tribunal.
The 2nd – 94th Respondents also filed a Conditional Memorandum of Appearance on 5th June 2003.
On 7th June 2003, 1st Respondent filed before the Tribunal a Notice of Preliminary Objection thus:-
“NOTICE OF PRELIMINARY OBJECTTION
TAKE NOTICE that by way of Preliminary object, the 1st Respondent or Counsel on his behalf shall urge the tribunal to strike out paragraphs 6, 7, 9, 10, 11, 19, 20, 21, 22, 23, 24, 29, 31, 32, 33, 34, 35, 36, 37, 38 and 39 of the petition as being incompetent.
GROUNDS OF OBJECTION
(a) The officials whose conduct were complained against in paragraphs 11, 19, 20, 21, 22, 23, 24, 29, 31 and 32 were not joined as parties to the Petition.
That the paragraphs 6,7,9, 10, 33, 34,35,36,37 ,38 and 39 did not plead facts as provided for by the Electoral Law.
And shall apply that this petition be dismissed or struck out as being incompetent.
In support of the Notice of Preliminary Objection counsel filed an affidavit of 7 paragraphs.
Thereafter, on 11th June 2003 the 1st Respondent filed his Reply to the Petition repeating in paragraph 1 thereof the intention earlier given to ask that certain paragraphs of the petition be struck out on the ground of incompetence.
Similarly, on 17th June the 2nd-94th Respondents filed a Reply to the Petition. The Tribunal took arguments from Counsel on the Preliminary Objection and gave its ruling thereon.
However it is pertinent to state that in the course of – in fact, in the opening sentences of his argument, learned Senior Counsel to the 1st Respondent/Applicant raised the issue that the petition was filed out of time and should therefore be struck out.
Learned Senior Counsel thereafter went on to the issue of the alleged defects in certain paragraphs of the petition which 1st Respondent wanted struck out either because the statutory defendants were allegedly not joined as required by Section 133(2) of the Electoral Act, 2002 or because the paragraphs are vague and not in accordance with the provisions of paragraph 4(1)(d) of the 1st Schedule to the Act respectively.
In so far as the objection on the limitation period was concerned learned Counsel for the petitioner objected to the issue on the ground that there was no indication in the Notice of Motion that 1st Respondent intended to raise an issue relating to Statutory limitation indicating also that it would not be proper for the election Tribunal to find on the issue without taking evidence as to the date of the declaration of the result of the election to the office of Governor of Imo State.
In its Ruling on the question of limitation the Tribunal stated thus:-
“We are of the considered view that the date of the election and the date of the declaration of its result (if different) must be specifically pleaded.
If it were only different from the date of the election the petitioner could have tendered his EC81. As pleaded, “accordingly” connotes an agreement and harmony in sequence between the vital actions of election and the declaration of its results. By the petitioner’s own showing, the result was declared on the 19th of April 2003 and his 30 days within which to file his petition, commenced on the 20th of April, and ended on the 19th of May 2003.
When ever a legal act for which time is of the essence is done out of the time allowed by the statute, the failure to keep to time is very fatal and render the act incompetent. In the instant case, there is no material before us to make us hold that the petition is brought in compliance with the relevant statute governing it if it were properly raised.
However, the issue of statute bar was not raised on the motion prayer and the Tribunal cannot play father Christmas to grant any unclaimed prayer.”
With regard to the preliminary objection on certain paragraphs of the petition the Tribunal found all the paragraphs complained of except paragraphs 8, 10 and 36 incompetent either for failure to join officials against whose conduct the petition has complained or for being vague.
In the event, the Tribunal struck out the petition.
It is against that Ruling that the petitioner has appealed to this court.
Similarly the 1st Respondent felt aggrieved by that portion of the Ruling of the Tribunal which did not sanction Petitioner on the ground that the 1st Respondent did not pray for any relief in respect of the objection on statutory limitation.
Respondent has accordingly filed a cross-appeal to this court.
Petitioner in his Notice of Appeal filed five grounds of appeal while the 1st Respondent file only one ground in the notice of cross-appeal.
Both appellant and 1st Respondent formulated four issues out of the five grounds of appeal.
However for the purpose of this judgment, I shall consider the appeal on the basis of the issues formulated by the 1st Respondent which are:-
“(a) Whether the preliminary objection to the competence of the petition was properly raised. (Ground Three)
(b) whether the issue of statute bar was properly raised (Ground One,)
(c) Whether the petition was filed out of time (Ground Two)
(d) Whether the petition was rightly struck out for incompetence (Ground four & Five)”
I may also mention that both Appellant and Cross-appellant are agreed on the issue for determination in the cross-appeal which is formulated thus:-
“Whether the Petition Tribunal could have competently struck out the petition in the prevailing circumstances on the ground that it was statute barred.”
I intend to dispose of the issue raised in the Cross-appeal in the course of my treating the issues in the main appeal.
It is only necessary for me at this stage to indicate that before the hearing of the substantive appeal and cross-appeal, the appellant brought an application for leave ex-debito justitiae to present evidence of the Declaration of the Result of Election (Form EC8E(1)) for the office of The Governor of Imo State held on 19th April, 2003 and to deem as properly presented before the Court – Exhibit A to the affidavit in support.
Arguments were taken from both counsel.
The court indicated that it would take arguments on the substantive appeal and cross-appeal and give its decision on the application for: additional evidence along with the judgments in the appeal and cross-appeal.
I now give my ruling on the application for additional evidence.
For the applicant it is contended that it has become very relevant to the doing of justice in this matter to allow evidence of the declaration of the result to be admitted even at this stage.
For the Respondent, it is contended inter alia that the document sought to be tendered is a public document which has not been certified as required by S.111 of the Evidence Act and should be rejected.
This objection is well taken. I uphold it. In the event, I refuse the applicant leave to tender the document marked “Exh. Justice I” in this appeal.
The application is struck out.
I now turn to the main appeal.
I have already indicated that I shall treat the issues as in the Respondent’s brief formulated.
However, it is convenient to deal with issues (b) and (c) together since they deal with statutory limitation.
Section 132 of the Electoral Act, 2002 provides thus:-
“132. An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”
The Petition does not indicate on its face the date of the declaration of the result although it indicates the date of the holding of the election as 19th April 2003.
The contention of the Appellant is that the Notice of preliminary objection served in the proceedings did not indicate an intention to raise the issue of limitation of time.
On the other hand, learned counsel for the Applicant/1st Respondent contends that being a matter which goes to jurisdiction of the Tribunal, it can be raised at anytime even in this appeal.
It is true that election matters are sui juris i.e. of a kind of their own. It is true also that where special procedure is provided such special procedure govern election matters.
It is trite law however that an issue of limitation must be specifically pleaded for it to be raised in defence – Ademola ju v. Adenipekun (1999) 1 NWLR (Pt.587) p.440.
However once successfully raised its effect is to put any right of the plaintiff in abeyance He cannot enforce it by process of litigation.
In this petition, there is no indication in the Notice of preliminary objection of 1st Respondent that 1st Respondent intended to raise an issue of limitation. In any event, even if the issue was properly raised, the Tribunal was in error to have placed the onus of pleading the date of the declaration of the result of the election on the petitioner. It is the 1st Respondent who sought to benefit from the evidence of the date of declaration of the result by its Preliminary objection. Sections 135, 136 and 137 of the Evidence Act place the burden of adducing evidence of that date on 1st Respondent.
Having failed to give that evidence the decision must be against 1st Respondent.
I therefore, answer issues (b) and (c) in the 1st Respondent’s brief against 1st Respondent. This also disposes of the Cross-appeal of the 1st Respondent.
The Cross-appeal fails. It is dismissed.
I now take issues (a) and (d) in the 1st Respondent’s brief of Argument together.
The relevant portions of the Ruling of the learned Tribunal is to be found at pages 100 and 101 of the Record thus:-
“We start with those dealing with non-joinder. We observe that the petitioner made serious and far-reading allegations against the grave misconduct and actions of electoral officers, presiding officers, returning officers and all other officials of INEC who took part in the conduct of the election. These are clearly born out in paragraph 11, 19, 20, 21, 22, 24, 31 and 32 of the petition.
The conduct of these various officials mentioned above where therefore challenged in the petition. By the unambiguous provisions of S. 133(2) of the Electoral Act, it is imperative and incumbent on the petitioner to join all of them as they are all interested and necessary parties in the petition if it is to be brought to a complete and effectual determination. See BASHIR v. BUBA AUDU (1999) 5 NWLR PT 603 433 AT 439 B-E BAAB V. TARASHIYA (1999) 5 NWLR (PT.603) 668 AT 473, NWOKE V. EBEOGU (1999) 6 NWLR (PT.606) PT. 237 AT P.258, ONOYON V. EGARI (1999) 5 NWLR (PT.603) 416 AT 423D TO 424D.
The failure to join them as parties to this petition is fatal.
As to the competency of paragraph 6, 7, 9, 10, 33, 34, 36, 37, 38 and 39 of the petition we have also carefully perused the paragraphs and find as a fact that paragraphs 8, 10 and 36 are in order.
However, we find paragraphs 7, 33, 34, 35, 37, 38 and 39 incompetent as they violate paragraph 41 of the first schedule to the Electoral Act which prescribes the content of an Election petition.
All told, based mainly on the prayers of the 1st respondent and upon our findings above on non-joinder and the incompetent paragraphs of the petition, this petition is liable to be struck out and it is hereby struck out.”
It is clear that the paragraphs of the petition sought to be struck out are of two categories:-
(a) Those which are alleged to offend against Section 133(2) of the Electoral Act, 2002 for failure to join statutory defendants i.e. paras. 11, 19, 20, 21, 22, 24, 29, 31 and 32; and
(b) Those who are alleged not to have satisfied the, requirements of paragraph 4(1) of the 1st schedule to the Act as to facts pleaded or are vague i.e. Paragraphs 6, 7, 9, 10, 33, 34, 35, 36, 37, 38 and 39.
Both parties have in their respective briefs dealt with each paragraph of the petition complained about by the Applicant/1st Respondent.
A close look at the petition would show that the style of the petitioner from paragraph 6 of the petition is to set out the general grounds of his complaint in some paragraphs and then indicate in subsequent paragraphs the particulars as well as the officials against whose conduct he is complaining. Invariably, another close look at the list of 94 Respondents would show the official against whom he is pointing the accusing finger as either the Independent National Electoral Commission or one of its officials listed as 3rd – 94th Respondents, For instance, Petitioner lists certain complaints of electoral malpractice at paragraphs 6-10 and then goes on in paragraph 11 to give particulars which show that the conduct of 2nd Respondent is the one being complained against in paragraphs 6-10.
Another example is paragraph 19 of the petition. It reads –
“ISU L.G.A.
Voting started as early as 8.00 am and was smooth. The INEC Officials did not distribute the result sheets along side the other electoral materials. It was confirmed from the Electoral Officer of the L.G.A. that those result sheets were actually issued to the Ward Supervisors. Until about 7.00 p.m. no result sheets were brought to the various polling booths. All the Ward returning officers refused to go to the various collation centres. Rather they stayed at the Council Hall, UMUNDUGBA, expecting the results. The transition Committee Chairman of Isu L.G.A., Chief Lambert Orisakwe, made his residence and office available for some people who were there writing fictitious results in favour of the PDP. This was done with the active connivance of security agents (Police, SSS, Civil Defenses Corps). The authentic results were never collated.”
It is clear that in, respect of this complaint that the Petitioner has identified the Electoral Officer, Isu Local Government Area – 19th Respondent on the list as the officer to answer. It was therefore wrong, in my view, for the learned Tribunal to have struck out paragraphs 11 and 19 or any of the other paragraphs struck out except paragraph 22(a) and (b) which rightly in my view, was conceded by appellant in his brief of argument. They all fall within this style adopted by the Petitioner in presenting his case.
In the result, I find that the learned Tribunal was in error to have struck out the paragraphs respectively struck out in its ruling except para.22(a) and (b) of the Petition.
In the result, I restore except as indicated herein all the affected paragraphs.
I hold therefore that the Preliminary objection of the 1st respondent fails.
The appeal succeeds.
I order that the Petition of Appellant shall be remitted for trial on its merit to another Tribunal to be set up by the President of the Court of Appeal in due course.
I make no order as to costs.
RABIU DANLAMI MUHAMMAD, J.C.A. I have the advantage of reading in draft the judgment just delivered by my learned brother Oduyemi, J.C,A. He has thoroughly dealt with all the issues raised in this appeal. I am in complete agreement with his reasoning and conclusion. I agree that the appeal has merit and it should be allowed. I only wish to comment, albeit briefly on all issue raised by the learned Senior Counsel for the 1st Respondent. He tried to raise the issue of jurisdiction.
He submitted that this Court lacks the jurisdiction to entertain and determine the appeal. It should be noted that the issue of jurisdiction was never raised at the Tribunal. There is no ground of appeal before us dealing with jurisdiction, there is no issue for determination dealing with jurisdiction. He just sprang the issue out of the blues. Even though he submitted that it is a matter of jurisdiction which could be raised at any stage of the proceedings, the issue must be raised properly.
There must be a ground of appeal. See Order 3 Rule 5 of the Court of Appeal Rules 2003 which provides:
“The appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem fit.”
There is no ground on jurisdiction as such he could not be heard on the issue. It is for this and the fuller reasons contained in the leading judgment that I allow the appeal. I abide by all the consequential orders made by my learned brother Oduyemi, J.C.A.
PIUS OLAYIWOLA ADEREMI, J.C.A.: I agree with my leaned brother, oduyemi, JCA whose reasons for judgment I have been privileged with a preview. I agree with his reasoning and conclusion that the application to adduce fresh evidence is unmeritorious but that the appeal has merit.
I wish to add few words of my own; and I shall start with the application by the Appellant/applicant for leave to adduce fresh or new evidence or facts. That there is power in the appellate court to grant leave to adduce new evidence or facts for the furtherance of justice if the court thinks fit is not in doubt. That is the general principle.
However a court of justice which an appellate court is will not allow a fresh point to be taken before it if such a point was not pronounced upon by the court below. Also an appellant will not be permitted to raise on appeal, a question which was not raised, tried or considered by the trial court, but where the question involves substantial points of law, substantive or procedural, and its plain that no further evidence could have been adduced which would affect the decision other than the court will allow the question to be raised and the points taken to avoid an obvious miscarriage of justice. See ARAKA VS. EJEAGWU (2000) 12 sc (PT 1) 99. In the instant case, what is sought to be raised is not substantial points of law rather they are new facts.
The Supreme Court and this court have over the years laid down principles which should guide the courts in the judicious exercise of their powers to grant leave to adduce further evidence; and they are:
(1) The evidence now sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial.
(2) The evidence so sought should be such as, if admitted, could have an Important effect on the whole case; and
(3) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.
See A-G of FEDERATION VS. ALKALI (1972) 12 SC 29. There is nothing in the supporting affidavit which suggest or can persuade this court that the documentary evidence now sought to be tendered was not available to the applicant at the trial. form EC8 E(1) now sought to be used a copy of which is attached to the application and marked Exhibit “Justice I” ex facie, is lacking in evidential value. The application is therefore, in my view devoid of merit and it must be dismissed. I also dismiss it.
On the merits of the appeal itself, sequel to the petitioner/appellant filing his petition the 1st Respondent filed a Notice of preliminary objection urging the tribunal to strike out certain paragraphs of the petition for being incompetent. Whilst the objection was still pending the 1st respondent filed a Reply. When the petition came up for argument before the tribunal, counsel for the 1st Respondent sought to more his Notice of Preliminary objection while counsel for the petitioner sought to raise objection to the Notice of Preliminary objection. The chairman of the lower tribunal, for reason of time directed that the counsel for the petitioner should raise the objection he might intend at the time of response to the 1st respondent objection. Following the directive, counsel for the 1st respondent in the course of arguing the preliminary objection attacked the petition on the ground according to him, that it was filed out of time.
In short he was raising the issue of Limitation Law for the first time. Counsel for the petitioner raised objection to this line of argument, contend that it was never raised anywhere. However, the lower tribunal in its ruling upheld the contention of the 1st respondent and struck out the petition on the ground that it was statute-barred.
I have looked at the whole gamut of the records, nowhere was Limitation Law pleaded. The law is now well settled and that for the provisions of the Limitation Law to be relied upon it must be specifically pleaded. See KETU VS. OMIKORO (1984) 10 SC 265. For the lower tribunal to have based its ruling on the statute that was not pleaded, that ruling and the consequential orders therein made are vitiated. For this reason and most especially for the fuller reasons contained in the lead judgment, I shall allow the appeal as it is meritorious. The petition shall be heard by another panel of tribunal. I abide by all the other consequential orders made in the lead judgment.
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.: I had read in advance the copy of the lead judgment just delivered by my learned brother, ODUYEMI J.C.A.
The crux of the application filed by the appellant/applicant on the 22/9/03 is to secure leave of this court to present before the court either orally or by affidavit evidence of the declaration of result of election form EC 8 E (1) for the office of the governor of Imo state held on the 19th of April 2003 prior to the hearing of the appeal scheduled for 30th September 2003.
Secondly, that if the foregoing is granted, Exhibit A should be deemed as properly presented before this Honourable court as evidence for the purpose of hearing the appeal. The form EC8E (l) is relevant for the determination of the appear and cross appear. Both counsels for the parties made copious submission in respect of the application. Conditions for granting leave of the court to adduce fresh evidence on appeal are well known. The leave is sought to tender a document, which there was no opportunity to tender before the tribunal erroneously relied on the contents at a stage when hearing has not started. By virtue of Orders 1 Rule 19(2)of the Court of Appeal Rules – no such evidence shall be admitted except on special grounds. The applicant must adduce or establish convincing reasons for such a grant. The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial or are matters which have occurred after judgment in the trial court. The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.
Enekebe v. Enekebe (1964) N.W.L.R. 42; Ofiasi v.Oracle(1985)3 N.W.L.R. (Pt 11) page 82; Emmanuel Okpanum v. SGE Nig Ltd (1988) 8 N.W.L.R. (Pt 539) page 537 at page 546.
I agree that the applicant failed to satisfy the conditions for granting of such leave to adduce fresh evidence before this court. It is accordingly refused.
Both parties argued the substantive appeal and cross-appeal. The issues for determination formulated by the appellant are as follows:
“(a) Whether the Honourable Tribunal was competent to have adjudicated and made a finding on statute bar of the petition when the issue was not properly put before it?
(b) Assuming without conceding that the election petition Tribunal had competence to adjudicate on the question of statute bar whether the Tribunal correctly decided that the petition was filed out of time?
(c) Whether failure of the Tribunal to decide upon the appellant’s objection to the 1st respondent’s preliminary objection to the petition did not vitiate the proceeding.
(d) Whether on the face of the petition the election petition Tribunal was right in striking out the petition for incompetence?
The first respondent also distilled four issues for determination as follows:
“(1) Whether the preliminary objection to the competence of the petition was properly raised?
(2) Whether the issue of statute bar was properly raised?
(3) Whether the petition was filed out of time?
(4) Whether the petition was rightly struck out for incompetence?
The appellant contended that the Tribunal court not adjudicate on the issue of statute bar, which was not contained in the Notice of preliminary objection served on the petitioner.
(b) Failure to decide one way or the other by the Tribunal, the appellant’s objection to the hearing of the preliminary objection vitiated the decision subsequently arrived at.
(c) All the officers complained about in the petition save paragraph 201(c) and 22 (a) and (b) were joined in the petition.
(d) The petition was in full compliance with paragraph 4(1) of the First Schedule on the Electoral Act.
(e) Even if some non-compliance existed which is not conceded save in respect of paragraph 20(c) 22 (a) and (b) the Tribunal had the discretion under section 136(3) of the Act and paragraph 4(6) of the First Schedule to do substantial justice, by saving the petition instead of resting on technicalities which the Supreme court condemned in the case of Egolum v. Obasanjo (1999) 7 N.W.L.R. (pt.611) at page 432.
The summaries of the arguments of the 1st respondent in asking that the appeal be dismissed are as follows:
(a) The preliminary objection to the competence of the petition was properly raised.
(b) The petition was filed out of time.
(c) The petition was rightly struck out for incompetence because of non-joinder of necessary paragraphs of the petition
(d) There is no prayer in the notice of appeal for an order of retrial. I agree with the conclusion of the appellants on the issues, particularly the finding of the Tribunal that the petition filed out of time is a nullity.
The issue was practically not before the Tribunal. It is trite that a party alleging that a petition was statute barred should particularly plead same. The computation of the time must be known. An issue that was not before the Tribunal cannot obviously now form a ground of appeal. The onus was on the petitioner to produce form EC8 E (1) the declaration of result. The conclusion of the Tribunal that the petition was filed out of time is not sustainable.
The tribunal should have decided one way or the other the case brought before it. Failure to do so amounts to an infringement of the aggrieved party’s right to fair hearing. A breach of the rule of fair hearing amounts to a fundamental irregularity, which operates to nullify the proceeding wherein the breach occurred. In determining the competency of the petition, the tribunal took into consideration the affidavit evidence and the reply of the 1st respondent rather than the con of the petition.
Going through the petition, the tribunal’s conclusion that the necessary parties to those paragraphs save paragraphs 20(c) and 22(a) and (b) were no joined as parties is not supported by the pleadings in the petition. The petition did not violate any of the provisions in the five sub-paragraphs of paragraph 4(1) of the First Schedule to the Electoral Act 2002. All the necessary parties against whom the petitioner has complained were joined in respect of paragraphs 20(c) and 22(a) and (b).
The remaining paragraphs court still have sustained the petition in view, of the provisions of section 17(2), 18 and 67(3) and 129 of the petition. Going by the decision in Egolum v. Obasanjo (1999) 7 N.W.L.R. (Pt 611) at page 432 – the learned Tribunal could have done substantial justice by saving the petition rather than dismissing same on technicalities.
In the cross-appeal the major issue for determination is whether the Tribunal could have competently struck out the petition in the prevailing circumstances on the ground that it was statute barred. This issue had been argued in the main appeal.
In sum I subscribe to the view in the lead judgment that the appeal be allowed, while the decision of the Tribunal striking out the petition be set aside. The petition shall be remitted back for hearing before another constituted panel of Tribunal. The cross-appear lacks merit and it is dismissed accordingly. I abide the consequential orders made in the lead judgment.
AMIRU SANUSI, J.C.A.: I have the advantage of reading in draft form, the judgment delivered by my learned brother Oduyemi, JCA.
While I agree entirely with his reasoning and conclusion he reached, I wish to for purpose of emphasis comment on the application made by the appellant /applicant for leave to admit fresh evidence. Definitely, this court has discretion to allow parties to adduce fresh evidence on appeal. see BRAITHWAITE vs M.S.A, LINES (1999) 13 NWLR (PT.636) 611. However, before such discretion is exercised some conditions must as it matter of law, be met or fulfilled by the party seeking such leave to admit fresh evidence on appeal.
The learned applicant/appellant’s counsel has in my view not fulfilled such conditions. The leave to admit such evidence can not be granted.
On the whole, for the reasons given in the judgment of my learned brother just delivered. I also see merit in the appeal. It succeeds and I too accordingly allow it, I also order the restoration of the petition as the paragraphs struck out by the tribunal were wrongly struck out. I abide by the consequential order made in the leading ruling. I also refuse to grant any cost.
Appearances
CHIEF M.I. AHAMBA, S.A.N. (with him E.I. Egbedu Esq)For Appellant
AND
BON NWAKANMA, ESQ SAN (with him O.J. Okpara Esq)For Respondent
