HON. DEIN BENADOUMENE & ANOR V. INEC & ORS
(2011)LCN/4961(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of December, 2011
CA/PH/EPT/21/2011
RATIO
ELECTION PETITION: EFFECT OF AN ELECTION PETITION THAT ITS RESULT WAS NOT DECLARED
The question as to when a party can file a petition has become a constitutional issue. The constitution of the Federal Republic of Nigeria (Section Alteration) Act, No 2 of 2011 amended S. 285 by adding subsection 5 which reads as follows:- “An election Petition shall be filed within 21 days after the date of the declaration of result of the election.” By this provision, any election petition that is purportedly filed in an election where no election result is declared is unconstitutional, null and void and can therefore not fall within the election petition contemplated under paragraph 12(5) of the 1st schedule to the Electoral Act 2010 [as amended]. PER PAUL ADAMU GALINJE, J.C.A
INCOMPETENT COURT PROCESS: EFFECT OF SUBSEQUENT PROCESSES FILED IN SUPPORT OF AN INCOMPETENT PROCESS
Where a process is incompetent, all subsequent processes filed in support of the incompetent process are in themselves incompetent. The Learned Judges of the Tribunal were therefore right when they failed to consider and give judgment on the motion on notice filed on the 23/7/2011 by the 2nd Respondent/cross Appellant pursuant to paragraph 18[1] & (3) of the 1st schedule to the Electoral Act 2010 (as amended) challenging the competence of the petition for failure of the appellants to apply for issuance of pre-hearing notice as required by law. The cross appeal is therefore lacking in merit and it is hereby dismissed. PER PAUL ADAMU GALINJE, J.C.A
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
HON. DEIN BENADOUMENE & ANOR Appellant(s)
AND
INEC & ORS Respondent(s)
PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment): On the 12th October 2011, this court dismissed this appeal and reserved reasons for that decision to a date to be communicated to the parties. The reasons for the decision are hereby given today. But before the reasons are given, I seek to set out in brief the facts of the case that gave rise to this appeal
The first Appellant herein was a candidate sponsored by the 2nd appellant in an election into the Bayelsa State House of Assembly. The election was conducted by the first Respondent to elect a member representing Ekeremor Constituency III of the State on the 26th April, 2011.
The 2nd-10 Respondents also contested the election under the platform of different political parties listed against their names in the, appellant’s petition at the lower court and in the notice of appeal filed on the 3rd of September 2011. At the conclusion of the election and for reasons which are not relevant in this appeal the returning officer, Dr. Kenneth Okiongbo declared the election inconclusive and no candidate was returned as elected. This development was communicated to the first Respondent who promptly fixed the 6th of May 2011 for a return election in one of the two wards in the constituency and all the parties were duly informed of the outcome On the 6th of Mary 2011, the 1st Respondent conducted election in the remaining one ward where election fraud was earlier detected. At the conclusion of that election and in the final result, the 2nd Respondent herein was declared the winner and returned as elected member representing Ekeremor Constituency III of Bayelsa State. The appellant’s are dissatisfied with the procedure leading to the declaration of the first election as inconclusive. They accordingly filed a petition at the National and State House of Assembly Election Tribunal sitting at Yenagoa on the 6th of May 2011 challenging the inconclusive election which was conducted on the 26th of April 2011 in which no result was declared and no return made in respect of any of the candidates that contested the election. The Tribunal heard the various motions that challenged the competence of the petition and in a reserved and considered ruling held:-
“In the instant case we hold that there was no fulfillment of paragraph 4(1)(c) of the 1st schedule which was also not contested by the petitioners being a condition precedent to filing a petition. The cause of action in this petition had not accrued when this petition was filed.
It is therefore not for a tribunal to declare a party where there was no declaration at all there must be declaration before tribunal such as ours can come close to such case.
It is our collective resolve that this petition is premature, discloses no cause of action and incompetent for failing to comply with the mandatory provisions of paragraph 4(1)(c) of the 1st schedule to the Electoral Act 2010 [as amended].
On the basis of the comments reproduced herein above, the Tribunal dismissed the petition in limine. It is against the decision of the Tribunal that the appellants have brought this appeal. Their notice of Appeal dated 29th August 2011 and filed on the 1st of September 2011 contains eight grounds of appeal.
The 2nd Respondent is not satisfied with certain aspect of the judgment. Being aggrieved, he has cross appealed to this court. His notice of cross-appeal at pages 484-488 of the record of appeal contains one ground of appeal.
Parties filed and exchanged briefs of argument. Appellants formulated three issues for determination of this appeal. I reproduce these issues hereunder as follows:-
1. Whether the Honourable Tribunal had jurisdiction to hear and determine the respondents’ objections to the hearing of the petition as in this case independent of and without hearing such objections along with the substantive petition.
2. Whether the Honourable Tribunal has jurisdiction to hear and determine this petition by virtue of the provisions of section 285(2) of the 1999 constitution of the Federal Republic of Nigeria.
3. Whether inadequate payment of filing fees in a petition against candidates not returned in an election robs the Honourable Tribunal of jurisdiction to hear and determine the petition
The 1st Respondent formulated one issue only for determination of this appeal and it reads thus:-
“Whether the National and State Houses of Assembly Election Tribunal established under section 285 (1) (b) of the constitution of the Federal Republic of Nigeria as amended has jurisdiction to hear and determine petition No. EPT/BYS/HA/05/2011, Hon Bein Benadoumene & Anor V. Independent National Electoral Commission & 9 Ors as presently constituted.
For the 4th-8th Respondents two issues were formulated jointly for determination of the appeal. These two issues are also reproduced herein under as follows:-
1. Whether or not the lower tribunal was right in hearing the Respondents’ objection challenging the competence of the petition and consequently lack of jurisdiction to entertain the petition, during the prehearing session.
2. Whether the lower tribunal was right in striking out the petition having regard to the relevant provisions of the Electoral Act 2010 (As Amended) and section 285(1)(b) and 5 of the constitution of the Federal Republic of Nigeria, 1999 [As Amended].
The Appellants filed a reply brief to each of the Respondents’ briefs of argument.
I now wish to consider the issues raised in the main appeal before I consider the cross appeal if necessary.
Having read through the record of appeal and parties briefs of argument, I am of the firm view that the only issue calling for determination of this appeal is whether the National and State House of Assembly Tribunal Sitting in Yenagoa, Bayelsa state was right in hearing the various motions filed by the respondents challenging the competence of the petition and determining them without hearing them along with the petition.
In arguing the appeal, Mr. Preye Agedah, Learned counsel for the appellants dwelt extensively on paragraph 12[5] of the first schedule to the Electoral Act 2010 (as amended) and contended that the Tribunal acted without jurisdiction when it heard the respondents’ motions which amounted to objections to the hearing of the petition independent of the main petition. According to the Learned counsel this is contrary to the provision of paragraph 12(5) of the 1st schedule to the Act, which provides as follows:-
“A respondent who has an objection to the hearing of the petition shall file his reply and state the objection therein, and the objection shall be heard along with the substantive petition”.
In a further argument, learned counsel submitted that if the language of a statute is clear, the court must give the words their ordinary meaning in its interpretation of the statute. In aid Learned counsel cited Awuse v. Odili & Ors (2004) FWLR (Pt 193) 314 at 360 paragraphs C, A.G. Ondo State V. A. G. Ekiti State [2001] All FWLR (pt. 79) 1431; Buhari v. INEC & Ors (2008) 12 SC (pt.1) 1 and a host of other authorities.
For the 1st Respondent, Ahmed Raji of counsel submitted that the petition filed by the Appellant was incompetent as such the Tribunal had no jurisdiction to hear an incompetent petition and that is why the motions to strike out the petition were heard and determined.
For the 4th-8th Respondents, Mr. Ichegbe of counsel submitted that paragraph 12(5) of the 1st schedule to the Electoral Act [as amended] is meant to abolish demurrer proceedings and was never intended to prevent the hearing of objection during the pre-hearing session. In a further argument, Learned counsel submitted that the defect which paragraph 12[5] of the 1st schedule to the Act seeks to correct is well captioned in numerous decided cases under the repealed Act. Learned Counsel cited those decided cases as Olibie v. Okeke (1999) 8 NWLR (pt 613) 165 at 168 Tafida v. Bafarawa (1999) 4 NWLR (pt. 597) 70.
Just as the Appellant has argued, where the words of a piece of legislation is very clear and unambiguous, they must be given their ordinary grammatical meaning. The words embedded in paragraph 12(5) of the 1st schedule to the Electoral Act 2010 (as amended) cannot be treated differently. The petition mentioned in the paragraph aforesaid must be petition that is in conformity with the provisions of the Electoral Act 2010 [as amended]. Any petition that is not in accordance with the provisions of the Electoral act and the constitution cannot be the petition contemplated under paragraph 12 (5) of the 1st schedule to the Act and can therefore not be heard with any objection raised by the Respondent. The prayers filed at the Tribunal by the Appellant did not meet the standard set by paragraph 4(1) (c) of the 1st schedule to the Electoral Act 2010 [as amended]. This paragraph provides as follows:-
“An election petition under the Act shall state the holding of the election, the scores of the candidate and the person returned as the winner of the election.”
All the parties in this appeal have agreed that there was no declaration of result and no return of any candidate was made at the end of the election that is being challenged. The so called petition was incompetent, null and void and therefore required no order for it to be set aside. See Macfoy v. UAC (1961) 3 All NLR 1169 at 1409. The court could suo motu set it aside for being incompetent. The question as to when a party can file a petition has become a constitutional issue. The constitution of the Federal Republic of Nigeria (Section Alteration) Act, No 2 of 2011 amended S. 285 by adding subsection 5 which reads as follows:-
“An election Petition shall be filed within 21 days after the date of the declaration of result of the election.”
By this provision, any election petition that is purportedly filed in an election where no election result is declared is unconstitutional, null and void and can therefore not fall within the election petition contemplated under paragraph 12(5) of the 1st schedule to the Electoral Act 2010 [as amended].
For all I have said herein I am satisfied that the Tribunal was right when it heard the motions that challenged the competence of the petition and granted them accordingly. The only issue identified by me is resolved in favour of the Respondents. The appeal is accordingly dismissed in line with our decision of 12th October 2011.
Having held that the petition was incompetent and not known to law, it will amount to a summer Sault to insist that the Appellant should have applied for a pre-hearing notice as in Form TF007. Where a process is incompetent, all subsequent processes filed in support of the incompetent process are in themselves incompetent. The Learned Judges of the Tribunal were therefore right when they failed to consider and give judgment on the motion on notice filed on the 23/7/2011 by the 2nd Respondent/cross Appellant pursuant to paragraph 18[1] & (3) of the 1st schedule to the Electoral Act 2010 (as amended) challenging the competence of the petition for failure of the appellants to apply for issuance of pre-hearing notice as required by law. The cross appeal is therefore lacking in merit and it is hereby dismissed.
M. D. MUHAMMAD (OFR), J.C.A: I agree.
T. O. AWOTOYE J.C.A: I agree.
Appearances
PREYE AGEHAH with C.C. ANOSIKE I.M. MAX ALAGOA and O. ALFRED – ETOFor Appellant
AND
C. C. OHA holding AHMED RAJI’S
Lucky OYIBO, I.E. ONOKOWHAKE for 2nd Respondent holds brief of A.E. ICHEGHEFor Respondent
