GODSWILL OTU EKASI OTU v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS
(1999)LCN/0473(CA)
In The Court of Appeal of Nigeria
On Monday, the 1st day of March, 1999
CA/C/EPA/26/99
RATIO
EVIDENCE: WHETHER OR NOT AN AVERMENT IN AN AFFIDAVIT NOT CONTRADICTED OR DENIED IS DEEMED ADMITTED
It is our law that an averment in an affidavit which is not contradicted or denied is deemed admitted. (See Alagbe v. Abimbola (1978) 2 S.C. 39). This tribunal also found as a fact that the petitioner himself had in paragraphs 9, 10 & 11 of his petition averred that the 1st and 2nd respondents had “published” or declared a tailored result in favour of 3rd respondent on the date of the election on 5/12/98. It was self-contradictory therefore for the petitioner to come to the tribunal and argue that there was no declaration made on the date of the election. PER AKPABIO, J.C.A.
JUSTICES:
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
SIMEON OSUJI EKPE Justice of The Court of Appeal of Nigeria
OLUDADE OLADAPO OBADINA Justice of The Court of Appeal of Nigeria
Between
GODSWILL OTU EKASI OUT Appellant(s)
AND
- INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. ELECTORAL OFFICER, EKET
3. ISANG GODWIN ISAIAH Respondent(s)
AKPABIO, J.C.A. (Delivering the Leading Judgment): This was an appeal against a decision of the Local Government Election Petition Tribunal in respect of Akwa Ibom State sitting at Uyo, under the Chairmanship of Omokri, J. delivered on the 26th January, 1999 in petition No. LGET/AK/23/98. Wherein the petition of the petitioner was struck out for being incompetent, in that it was filed outside the prescribed time. The petitioner being dissatisfied with that ruling has now appealed to this court. From henceforth the petitioner will in this judgment be referred to as the “appellant.”
At the said Local Government election which took place on the 5th December, 1998, the appellant contested for the post of Councilor under the platform of the “All Peoples Party (APP) at Eket Urban Ward 11. Two other candidate contested against him viz.:- Effiong Akpan Akpan on, the platform of Alliance for Democracy (AD) while the third, one Isang Godwin Isaiah (now the 3rd respondent) contested on the platform of the Peoples Democratic Party (P.D.P.). Even though, according to the appellant, credible elections took place at only five or the seven polling stations in the ward, while the elections at the other two were disrupted, the returning officer nevertheless returned the 3rd respondent (Isang Godwin Isaiah) as the duly elected candidate with the majority of lawful votes: even without declaring the results in the two polling stations in which voting was disrupted. He therefore field his petition against the election as already set out above.
However, after pleadings had been filed, but before commencement of hearing an application on notice dated 14th January, 1999, was brought on behalf of the 3rd respondent praying the tribunal for an order.
‘(a) Setting aside or dismissing the petition of the petitioner for being incompetent.
(b) And for any other order as this honourable court may deem fit to make in the circumstance.’
The ground for the alleged incompetence was stated to be
“that the petition was statute-barred as at the time when the petitioner filed same”.
In a 6-paragraph affidavit in support of the motion, it was stated that under the electoral laws, a petition against the result of a Local Government Election has to be filed within 14 days from the date of the election, But in the instant case it was discovered that the petition was filed with the tribunal on 28th day of December, 1998, while the result of the said election was declared by 2nd respondent on 5th December, 1998. In effect between the date of the result and the date of filing of the petition 23 days had elapsed.
On 14th day of January, 1999, another application similar to that filed on behalf of the 3rd respondent was also filed on behalf of 1st and 2nd respondents, asking that the petition of the petitioner be dismissed for being “time-barred”.
In a counter-affidavit of seven paragraphs with eleven sub-paragraphs filed on behalf of the appellant he did not dispute the date of filing his petition, nor the date on which the election was held. Rather, he continued to contend that the voting in two or the seven polling stations in his ward was inconclusive, and so the 3rd respondent was wrongly declared as the winner.
In due course, the application came for hearing before the tribunal on 22nd January, 1999 after which ruling was reserved to 26th January, 1999.
On 26th of January, 1999, the tribunal came out with a six-paged unanimous ruling in which the petition of the appellant was held to be incompetent, and as struck out with no order as to cost.
The petitioner being dissatisfied with the above decision has now appealed to this court as the Constitutional Court on four grounds from which three issues were formulated as follows:
Issues for determination:-
(I) Whether the question whether the result of the said election was declared in a manner that is inconsistent with the provisions and requirements of Decree No. 36 of 1999 and particularly, paragraph 32 of Schedule 4 to Decree No. 36 of 1998, is a question of law to be determined in the determination of the question whether the petition No, LGET/AK/23/98, was filed within 14 days from the date on which the result of the election is declared and whether the Local Government Council Election Tribunal of Akwa Ibom State, Uyo, has jurisdiction to hear and determine the said petition?
(II) Whether the constitutional, natural and fundamental rights of the petitioner/appellant as a candidate the election held on 5/12/98, under Decree No. 36 of 1998, have not been bruised and breached by the respondents also and whether the result of the said election purportedly declared by the 2nd respondent could be said to be the decision of the final returning officer at the said election under paragraph 36 of Schedule 4 to Decree No. 36 of 1998, read together with paragraph 32 of Schedule 4 to Decree No. 36 of 1998, especially, regarding the declaration of scores of candidates and the return or a candidate as Councilor-elect for Eket Urban Ward II, “Eket?
(III) Whether the petitioner/appellant is not entitled to any relief upon the failure by the ward returning officer to declare the result of the said election to the position of Councilor for Eket Urban Ward II. Eket, at the Ward Collation Centre at Idua Primary School, Eket, on 5/12/98, or on any other date; and, or, whether this honourable court is not entitled to have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Constitutional Court, that is to say, this honourable court as court of first instance and may rehear the case in whole and interprete sections 81(1)(a), 82, 84(3), 85(1) and 99(1) of Decree No. 36 of 1998, read together with paragraphs 30(1) & (4), 31, 32, 36 and 39 of Schedule 4 to Decree No, 36 of 1998, in the context of his particular case?”
In reply to the above the 1st and 2nd respondents formulated no issues, but their learned counsel with leave of this court was allowed to reply orally. The 3rd respondent on the other hand, filed a brief in which three issues were formulated as follows:-
Issues for determination:-
2.1. Whether there was denial of fair hearing to the petitioner by the Election Tribunal in view or the opportunity given to the counsel to address the tribunal on the issue of its jurisdiction to entertain the petition.
2.2. Whether the Local Government Election Tribunal was justified in using the averments in the petition for determining whether it has the jurisdiction to hear the petition or not rather than relying on affidavit evidence when the issue of jurisdiction was raised.
2.3. Whether section 82 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36, 1998 contemplates that the requirement that the petition must be filed within 14days of declaration of the result is restricted to returns made by the returning officer or it covers any declaration made whereby a person other than the petitioner is put forward as having been returned”.
I have carefully considered all the issues formulated above by the appellant and must say quite frankly that they have been a colossal waste of judicial time, as they have no bearing whatsoever with the issues in controversy, namely whether the period between the declaration of results on 5/12/98 and filing the petition on 28/12/98 was more than 14 days or not.
Appellant completely left this simple arithmetical calculation and began to quarrel with the returning officer, who normally should have been made a party to the petition, but was not so joined. (See case of Gbadamosi v. Azeez (1998) 9 NWLR (Pt. 566) 471). He also failed to state any date on which the result was declared. In effect, the date stated by the respondents as the date on which election result was declared stood uncontradicted and was rightly believed by the tribunal.
It is our law that an averment in an affidavit which is not contradicted or denied is deemed admitted. (See Alagbe v. Abimbola (1978) 2 S.C. 39). This tribunal also found as a fact that the petitioner himself had in paragraphs 9, 10 & 11 of his petition averred that the 1st and 2nd respondents had “published” or declared a tailored result in favour of 3rd respondent on the date of the election on 5/12/98. It was self-contradictory therefore for the petitioner to come to the tribunal and argue that there was no declaration made on the date of the election.
The tribunal also held, rightly in my view, that if it was true, as contended by the petitioner that there was no declaration of a winner on date of election, it would mean that no cause of action had arisen before the petitioner filed his petition, meaning that the petition was incompetent and should be struck out for disclosing no cause of action. In other words, this was a case of “tail you lose, head you lose,” and I agree with them.
Finally, one must state that it was a mandatory provision of section 82 of Decree No. 36 of 1998 that “An election petition under this Decree shall be presented within 14 days from the date on which the result of the election was declared.”
In conclusion, I must refer to the case of Nnonye v. Anyichie (1989) 2 NWLR (Pt. 101) p. 110 at 112, cited by learned counsel for the respondents and also relied upon by the tribunal, in which the effect of failure to file a petition within prescribed time was stated by the Court of Appeal to be as follows:-
“Compliance with statutory provision as to time within which to file an election petition is a fundamental pre-condition, breach of which is incurable, and failure to comply with the statutory provision is fatal and in such cases, the court has no jurisdiction to entertain such a petition.”
In view of the foregoing, I accept the contention of the respondents that an election result was declared at Atabong Ward II on date of election. 5/12/98. But whether it was the correct result that was declared or not was a different matter. If no result had been declared, the appellant would have had nothing to quarrel about, and so go to the Election Tribunal. That being the case, I am satisfied that the said petition was filed within 28 days instead of 14 days, from date of the election as required by section 82 or the Decree.
That being the case, the said petition became time-barred and incompetent and the tribunal had no jurisdiction to entertain it. It was therefore, rightly struck nut by the tribunal.
This appeal therefore fails and is hereby dismissed with costs of N3,000.00 in favour of the respondents.
EKPE, J.C.A.: I have had a preview of the judgment just delivered by my learned brother Akpabio, J.C.A., with which I am entirely in agreement. I agree with the reasoning and the conclusion thereat, that the appeal lacks merit and should be dismissed.
Section 82 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 or 1998 provides that an election petition under this Decree shall be presented within fourteen days from the date in which the result of the election is declared. The Local Government Election of 1998 was held throughout Nigeria on the 5th December, 1998. The appellant was in that election a councillorship candidate at the Eket Urban Ward II in Eket Local Government Council Area. He contested the election under the ticket of the All Peoples Party (APP) and lost to the 3rd respondent, one Isang Godwin Isaiah of the Peoples Democratic Party (PDP).
The appellant claimed that he had the right to be returned or elected by a majority of lawful votes cast at the said election, but he was not so returned or elected. He claimed also that voting in the two polling stations at Atabong village hail was disrupted and the ejection threat was inconclusive as the results from those polling stations were not available or collated at the ward collating centre by the ward returning officer. The appellant filed an election petition challenging the return or the 3rd respondent. The election petition was filed on the 28th of December, 1998.
Applications by the respondents at the Election Tribunal to set aside or dismiss the election petition for being incompetent on the ground that it was time barred, having been filed after fourteen days from the date in which the election result was declared, was granted by the Election Tribunal and the petition was struck out. Being dissatisfied with this decision of the tribunal, the appellant has now appealed to this court as the Constitutional Court charged with hearing appeals from the Election Tribunals. I have carefully considered this appeal.
In my view, the Election Tribunal in its ruling delivered on the 26th of January, 1999 took meticulous care to address the issues now agitated by the appellant’s counsel in this appeal. Their reasoning and conclusions were sound and unassailable. The learned counsel for the appellant could not say exactly when the result or that election was declared. He disagreed that it was declared on the 5th of December, 1998, the date the election was held. In one vein, he asserted that there was no declaration of the result at all, while in another vein, he told us that the result of the election was published in a local newspaper called “Weekend Pioneer” on the 11th of December, 1998.
I entirely agree with the Election Tribunal at page 6 of its ruling delivered on the 26th of January, 1999 where it stated thus:
“Even if it is accepted as submitted by counsel that there has been no declaration of result or return or whatever, then it means that this petition is incompetent because the cause of action has not arisen. There cannot be an anticipatory petition or petition in advance of a cause of action.”
In the final analysis, I hereby dismiss this appeal as it is without any merit.
I abide by the order as to costs.
OBADINA, J.C.A.: I have had the privilege of reading in draft the leading judgment just delivered by my learned brother, Akpabio, J.C.A. He thoroughly considered all the issues rose in the appeal. I agree with his reasoning’s and conclusions that the appeal be dismissed. I only wish to contribute by way of emphasis on some of the issues raised in the appeal.
This is an election petition brought by the appellant herein, (Godswill Otu Ekesi Otu) who was a Councillorship candidate at the Eket Local Government, Eket Urban Ward II under the platforms of APP.
It is common ground that the election was held on the 5th day of December, 1998. The petitioner lost the election and the 3rd respondent won. The petitioner presented a petition before the Local Government Election Petition Tribunal, Akwa Ibom State.
The 1st and 2nd respondents filed a motion on notice against the petition praying the tribunal to dismiss the petition on the ground that the petition was time barred, having been filed after 14 days from the date on which the election result was declared.
The tribunal listened to the arguments of counsel to the parties. The tribunal referred specifically to paragraphs 9, 10 and 11 of the petition and the submission of the counsel for the petitioner. The tribunal then made specific findings of fact and concluded as follows:
“The above paragraphs are solemn affirmations and dear admissions that there was a return and a winner has been declared.”
The law is well settled that an appellate court should not interfere with the findings or fact by a trial court once the findings are based on the evidence upon the pleadings or the parties – see Godwin Uzoechi v. Elias Onyenwe & others (1999) 1 NWLR (Part 587) 339 at 340.
Where a court of trial unquestionably evaluated the evidence and appraised the facts, it is not open to a Court of Appeal to substitute its own views for those of the trial court which is abundantly supported by the evidence See Federal Commissioner for Works & Housing v. Lababedi (1977) 11-12 SC. 15.
Fashanu v. Adekoya (1974) I ANLR (Part 1) 35.
Akinloye & ors v. Eyiyola & ors. (1963) NMLR 92.
The appellate court can however interfere where the trial court failed to make findings or arrived at inconsistent findings on a crucial issue raised by the parties – See Godwin Uzoechi v. Elias Onyenwe & Ors. (1999) supra at 345.
In the instant case, it seems to me the findings of the tribunal are supported by the totality of the evidence and as there is no obvious error in the ruling, the Court of Appeal cannot interfere with the findings – See Agwunedu v. Onwumere (1994) 1 NWLR (Part 321) 375.
Nwoke v. Okere (1994) 5 NWLR (Part 343) 159.
Oro v. Falade (1995) 5 NWLR (Part 396) 385.
With the findings of the tribunal which I accept, namely, “that the result of the election was declared on the 5/12/98,” it is my view that the petitioner was presented out of the period prescribed by section 82 of Decree No. 36 of 1998.
Section 82 or the Decree provides as follows:-
“An election petition under this Decree shall be presented within fourteen days from the date un which the result of the election was declared.”
It is common ground that the election took place on 5/12/98. It is not in dispute that the petitioner presented his petition on the 28/12/98.
In paragraphs 9, and 10 or the petition filed by the petitioner, the petitioner states as follows:-
“(a) And your petitioner states that the 1st and 2nd respondents published a tailored result to justify the return or the 3rd respondent as follows – and will at the trial tender the said document –
Effiong Akpan Akpan –
(AD) – 701
Godswill Otu Ekagi Otu
(APP) – 1, 194
Isang Godwin Isaiah
(PDP) – 1,633.
(10) And your petitioner states that on hearing of the publication or concerted, fabricated and raise result above pleaded in paragraph of this petition briefed his solicitor with a copy of forwarding of complaint to the Ministry of Justice, within 14 days of the election and your petitioner did so through his solicitor, Aniefiok W. Atakpa Esq. of counsel.
The protest to INEC dated 9/12/98 and the protest in writing by the said solicitor dated 17/12/98 to the Permanent Secretary. Ministry or Justice are hereby pleaded for reliance on at the trial.”
From paragraph 10 of the petition, the petitioner was aware of the so called “publication of the concocted, fabricated and false result before the expiration of 14 days of the election. Infact he protested to INEC on the 9/12/98 after becoming aware of the said publication and briefed his solicitor who wrote a letter on 17/12/98. The facts pleaded in paragraph 10 or the petition are not consistent with the contention or the appellant that the result was not declared within 14 days of the election.
The exact date of the said publication is not disclosed. He did not think it proper and appropriate to file the petition immediately he became aware that the result has been published, on the contrary, he chose to write petitions to INEC and the Ministry of Justice.
The petitioner having presented his petition on 28/12/98 has violated the mandatory provisions of section 82 or Decree No.36 of 1998, and the petition was statute barred.
See Egbe v. Adefarasin & ors. (1985) 5 SC. 50; (No.1) (1985) 1 NWLR (Pt. 3)549
See also Alhaji v. Egbe (1986) 1 NWLR (pt. 16) 361.
Tejuoso v. Omojowogbe (1998) 7 NWLR (Pt. 559) 628.
In conclusion it is my view that the appeal is very unmeritotious and should be dismissed.
I therefore dismiss the appeal and abide by the order as to costs made by my learned brother Akpabio, J.C.A.
Appeal Dismissed.
Appearances
- W. Atakpa Esq. For Appellant
AND
Eta Eta – for the 1st and 2nd Respondents
Etukakpan, A. S. – for the 3rd Respondent For Respondent
