EKEREOBONG UDO AFIA & ANOR v. GODWIN OTN CHARLIE & ORS (2011)

EKEREOBONG UDO AFIA & ANOR v. GODWIN OTN CHARLIE & ORS

(2011)LCN/4831(CA)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of October, 2011

CA/C/NAEA/222/2011

RATIO

ELECTION PETITION: TIME FRAME FOR CHALLENGING AN ELECTION RESULT

A candidate who is aggrieved about the Result of an election has 21 days to present his petition. See s. 134 (1) of the Electoral Act 2010 (as amended). PER UZO I. NDUKWE-ANYANWU, JCA

JURISDICTION OF THE COURT: ESSENCE OF THE COURT NOT HAVING JURISDICTION TO HEAR AND DETERMINE A CASE BEFORE IT

Where a court’s jurisdiction is challenged, it is necessary that the court determines whether it has jurisdiction immediately before Proceeding further with the trial of the case. “It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction con be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes on exercise in futility as the decision arrived at in such a case amounts un low to utility irrespective of how well the Proceedings ducted. umanah vs. Attah (2006) 17 NWLR (pt. 1009) 503, Madukolu vs. Nkemdilim (1962) 1 All NLR 597, skenconsult vs. ukey (1981) 1 6, Benin Rubber producers Ltd vs. ojo (1997) 9 NWLR (pt. 521) 388, Mogoji vs. Matari (2000) 5 46, Aao vs. African continent of Bank Ltd (2000) 6 (pt.I) 27, Galodima vs. Tomboi (2000) 6 (pt 1) 196, Arako vs. Ejeogwu (2000) 12 (pt.1) 99, Lufthansa Airlines vs. odiese (2006) 7 NWLR (pt. 970) 39. PER UZO I. NDUKWE-ANYANWU, JCA

DOCUMENTARY EVIDENCE: EFFECT OF AN UNCHALLENGED DOCUMENTARY EVIDENCE

Where a document tendered is not challenged by affidavit or another more authentic document, it would be taken as correct and representing, the state of facts as presented. PER UZO I. NDUKWE-ANYANWU, JCA

ELECTION PETITION: EFFECT OF AN ELECTION PETITION FILED 1 DAY OUT OF TIME

where a petition is filed 1 day out of time, the Tribunal lacks the necessary jurisdiction to continue. PER UZO I. NDUKWE-ANYANWU, JCA

PLEADINGS: CONTENT OF PLEADINGS

PLEADINGS: WHETHER JUDGMENT CAN BE HAD ON THE PLEADINGS OF A PARTY

Judgment can be had on the pleadings where an essential issue is admitted by the opposing party. See Milts vs Renner (1940) 6 WACA 144 at 145; Eleko vs Baddeley (1925) 6 NLR 65. PER JOSEPH TINE TUR, J.C.A

JUSTICES:

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

1. EKEREOBONG UDO AFIA
2. ACTION CONGRESS – Appellant(s)

AND

1. GODWIN OTN CHARLIE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSIONS (INEC) – Respondent(s)

UZO I. NDUKWE-ANYANWU, JCA (Delivering the Leading Judgment): This is on appeal against the judgment of the Tribunal holding at Uyo Akwa Ibom delivered on the 16th August, 2011. The Appellant was the Petitioner at the Tribunal. The 1st Respondent contested with the 1st Appellant for the Onna State Constituency. The 1st Respondent was returned as the winner of the election held on 26th April, 2011.
Being dissatisfied, the Appellant as petitioner presented his petition on 18th May, 2011 challenging the return of the 1st Respondent.
The learned counsel to the 1st & 2nd Respondents filed a notice of Preliminary objection on 27th July, 2011. The preliminary objection was that
1. ” the petition was incompetent having been filed outside the period stipulated the by S. 134(1) of Electoral of Act 2010 ( as amended).
2. that this Hon. Tribunal lacks jurisdiction to entertain the petition serve having been filed in contravention of S. 84 (1) of the Electoral Act 2010 (as amended).”
In a considered judgment, the Tribunal held as follows that the Petitions filed outside the stipulated period prescribed by the constitution was statute barred. Tribunal declared the petition as incompetent and consequently struck it out. Being dissatisfied, the Petitioner/Appellant filed a notice and 2 Grounds of Appeal. The Appellants’ filed their Appellants brief on the 19th September, 2011 and articulated 2 issues for determination as follows:
(1) Whether the Tribunal below was right in hearing and granting a motion outside of the pre-trial session when the motion was filed and moved without leave of the tribunal? (Distilled from ground 1)
(2) Whether oral evidence is admissible to prove that a document is wrongly doted?
(Distilled from ground 2)
The 1st and 2nd Respondents filed their 1st and 2nd Respondents brief on 5th October, 2011 and deemed properly filed and served on the 11th October, 2011 vide an order of the same day.
In his brief the learned counsel for the 1st and 2nd Respondent articulated one issue f or determination as follows:
“Whether or not the Tribunal below rightly or wrongly struck out this petition in the circumstances of this case having found that same was filed 21 days allowed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2010, (as amended)?”.
The main issue in this appeal is as articulated by the counsel for the 1st & 2nd Respondents. This issue is one based on jurisdiction, “whether the Tribunal had jurisdiction to hear this appeal filed on 18th May, 2011”.
The Appellant counsel failed to come to court but informed the Registrar that he had filed his Appellant’s brief and should be taken as argued.
The learned counsel to the 1st and 2nd respondents submitted as in his notice of preliminary objection that the petition filed on 18th May, 2011 was filed outside the period envisaged by S. 134 (1) of the Electoral Act 2010 (as amended). He referred the court to Forms EC 8 E (1) for Onna State Constituency at page 175 of the Record of proceedings.
The learned counsel to the Appellant had no answer to this submission.
A candidate who is aggrieved about the Result of an election has 21 days to present his petition. See s. 134 (1) of the Electoral Act 2010 (as amended). In the instant case, the election was held on 26th April, 2011.
The 1st Respondent was declared and Returned winner of that election on 26th April, 2011 vide forms EC 8E (1) on page 175 0f the Record of Proceedings. If the election was declared on the 26th April, 2011 the latest day for presenting this petition would have been on the 17th May, 2011.
Where a court’s jurisdiction is challenged, it is necessary that the court determines whether it has jurisdiction immediately before Proceeding further with the trial of the case.
“It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction con be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes on exercise in futility as the decision arrived at in such a case
amounts un low to utility irrespective of how well the Proceedings ducted. umanah vs. Attah (2006) 17 NWLR (pt. 1009) 503, Madukolu vs. Nkemdilim (1962) 1 All NLR 597, skenconsult vs. ukey (1981) 1 6, Benin Rubber producers Ltd vs. ojo (1997) 9 NWLR (pt. 521) 388, Mogoji vs. Matari (2000) 5 46, Aao vs. African continent of Bank Ltd (2000) 6 (pt.I) 27, Galodima vs. Tomboi (2000) 6 (pt 1) 196, Arako vs. Ejeogwu (2000) 12 (pt.1) 99, Lufthansa Airlines vs. odiese (2006) 7 NWLR (pt. 970) 39.In the instant case, the results were declared on 26th May, 2011 and the Appellant could not fault this assertion. The forms EC 8E (1) was left unchallenged. Where a document tendered is not challenged by affidavit or another more authentic document, it would be taken as correct and representing, the state of facts as presented.It therefore follows that the Appellant’s petition presented on 18th May, 2011 was presented 1 day outside the period envisaged by S. 134 (1) of the Electoral of Act 2010 as amended).
where a petition is filed 1 day out of time, the Tribunal lacks the necessary jurisdiction to continue. I therefore hold that the petition filed on 18th May, 2011 was filed out of time. The appeal therefore lacks merit and is hereby dismissed.
I therefore affirm the judgment of the Tribunal in dismissing this petition No. EPT/AKS/HA/29/2011.
I make no orders as to costs.

EJEMBI EKO, J.G.A.: I was availed, in draft, the judgment just delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA. I am in complete agreement with the analysis of the lone issue and the conclusion thereon made by my learned brother.
I have nothing further to add to the judgment, which I hereby adopt. Accordingly, I enter an Order dismissing the Appeal. I also make no Order as to Costs.

JOSEPH TINE TUR, J.C.A: Having read the judgment of my Lord Uzo I. Ndukwe-Anyanwu, JCA, I concur.
In striking out the petition the Tribunal held at pages 245 lines 11- 24 to page 246 lines 1- 18 and page 247 lines l-2 of the printed record as follows:
“We have seriously considered the submissions of the parties on the failure of the Petitioners to file their petition within 21 days after the date of declaration of result.
we have noted that the 1st and 2nd Respondents have buttressed their assertion on the date of declaration of result by exhibiting the date of declaration of result as contained in Exh. RA, which is duly certified and issued by the 3rd Respondent who are the custodians of the document. There is no other document exhibited by the Petitioners. We hold that the declaration of result Form EC8E (i) is the best evidence of declaration of result. we refer to the case of Adighije vs Nwogu (2010) 12 NWLR (Pt.1209) page 419 at 481 paragraphs “C-F”, also Buhari vs Obasunjo (2005) 18 NWLR (Pt.941) p.25 5 paragraphs “C-D”.
Still on the finality of declaration of result we refer to Section 68(1)(c) of the Electoral Act, 2010 (as amended) which provides that the decision of the Returning Officer in any question arising from declaration of scores and return of a candidate shall be final subject to reviewed by a Tribunal or Court.
In view of the foregoing we are satisfied that the Form EC8E(i) attached as Exhibit RA by the 1st and 2nd Respondents contains the authentic date of declaration of result of the election in question before this Tribunal.
There is also the Constitutional requirement on filing an election petition. On this we refer to Section 255(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended which provides:
“An election petition shall be filed within 21 days after the date of declaration of result of election.” In the present case the learned Counsel to the Petitioners argued that the result of the election was announced on the 28th of April, 2011, but there is a distinction between the date of declaration of result and the date of announcement. Where as the date of declaration is the date contained in the Form EC8E(i) the other date is unknown to law as it cannot be authenticated. Moreover, the Petitioners have failed, refused or neglected to produce an alternative evidence of declaration of the said result in question.
In view of the foregoing the non-filing of the petition within the stipulated period prescribed by the constitution, we hereby declare the petition as incompetent and consequently struck out.”
Section 134(1) of the Electoral Act No.6 of 2010 as amended reads as follows:
“134(1) An election petition shall be filed within 21 days after the date of the declaration of results of the election”
In the computation of time the day the election was conducted and the result declared is to be excluded in order to determine whether the appeal was filed within or out of time. See Azeez Akeredolu vs Akinremi (19s5) 2 NWLR (pt.10) 787 at 793-794.
Paragraphs 2 and 5 of the petition reads as follows:
“2. The 1st Respondent was a candidate of the People’s Democratic party (PDP) at the election into Onna State Constituency seat held on the 26th day of the April, 2011.
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5. At the conclusion of the said election held on the 2nd day of April, 2011, 3rd Respondent declared the 1st Respondent as the winner of the election and thereby returning the 1st Respondent as duly elected.”
In the Joint Reply filed by 1st and 2nd Respondents on 16-06-2011 the following facts are pleaded:
“2. The 1st and 2nd Respondents admit paragraphs 1, 2, 3, 4 and 5 of the petition. The 1st and 2nd Respondents deny paragraph 6 of the petition and shall put the petitioners to the strictest proof of the results stated therein save the votes recorded for the 1st Respondent. ”
What is admitted needs no further proof. This is because no one sets out to prove what has not been denied. See Section 75 of the Evidence Act, 2004; Olale vs Ekwelendu (1939) 7 SCNJ 181.

Pleadings constitute notice of the case parties intend to canvass at the hearing. See Obmiami Brick Stones Nig. Ltd vs ACB (1992) 3 SCNJ 1 at 35; Uwegba vs Attorney-General of Bendel State (1986) 1 NWLR (Pt.16) 303 at 317. Judgment can be had on the pleadings where an essential issue is admitted by the opposing party. See Milts vs Renner (1940) 6 WACA 144 at 145; Eleko vs Baddeley (1925) 6 NLR 65.Having admitted in paragraphs 1-5 of the petition that the election was held and the result declared on 26th April, 2011 by the 3rd Respondent in favour of the 1s Respondent, it does not lie in the mouth of the petitioners to argue before the Tribunal and in this Court that the declaration was made on the 28th April, 2011.
Accordingly, excluding 26th April, 2011 the 21 days for filing the petition at the Tribunal commenced on 27th day of April, 2011 and expired on 17-05-2011. The petition was however presented on 18- 05-2011.
The Tribunal was right to have held that the petition was incompetent. Being incompetent the Tribunal was robbed of jurisdiction to adjudicate. Jurisdiction must be vested in a Tribunal or Court of law before the rights of the parties can be determined.
If a Court or Tribunal has no jurisdiction it cannot make binding orders. See Kalu vs Odili (1 992) 6 SCNJ (Pt. l) 76; Madukolu vs Nkemdilim & ors (1962) 1 All NLR 587 at 595; Adeigbe vs Kusimo (1965) NMLR 284 at 287. In the happening of such an event there is no time limit for raising the issue of the incompetency of the jurisdiction of the Tribunal to entertain the petition. This is one of such cases where the Tribunal could suo motu have raised the issue of the competence of the petition and upon address from Counsel, struck out the petition. See Bayero vs Mainasara & sons Nig. Ltd (2007) All NLR (pt.359) 1285 at 1314 paragraph “F-G”. Apart from the pleadings if there had real conflict in the date the result of the election was declared one would have examined the entries on Form EC8E(i) prepared by the officers of the 3rd Respondent and declared on 26th April, 2011. In Nwobodo vs onoh (1984) NSCC I Bello, JSC, (as he then was) held at page 20 that:
“….there is in law a rebuttable presumption that the result of any election declared by the FEDECO is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption. In my view, where such denial is based on allegation of crimes against the FEDECO officials responsible for the declaration of the result, the rebuttal must be proved beyond reasonable doubt.”
The onus of proving that the result of the election held on the 26th April, 2011 was declared on the 28th day of April, 2011 as on the petitioners; this had to be proved beyond reasonable doubt. This is lacking in this appeal. see also omoboriowo vs Ajasin (1984) 15 NSCC 81 at 90.
On the whole this appeal lacks merit. The appeal is dismissed. I affirm the judgment of the Tribunal. I make no order as to costs.
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Appearances

NKEREUWEM UDOFIA, ESQ.For Appellant

AND

OKON A. OKON, EsqFor Respondent