JAMES IDAHOSA OJEMENVA & ANOR V. OMOKHODION BRIGHT EHI & ORS
(2019)LCN/13626(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of July, 2009
CA/B/EPT/181/2008
RATIO
JURISDICTION: WHEN CAN IT BE RAISED AND DECIDED ON
It is trite that the issue of jurisdiction is a threshold issue which must be decided as soon as it is raised, and it may be raised at any stage of the proceedings and even on appeal. Where a Court lacks jurisdiction, no matter how well the trial was conducted, the trial would be a nullity. See CHIEF ELIGBE V. OMOKHAFE (2004) 12 SCNJ. Page 106.
ELABANJO V. DAWODU (2006) 6 SCNJ 204. PER CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A
JURISDICTION: THE POSITION OF JURISDICTION IN A MATTER
Where an appeal is based on several grounds which include a ground raising and challenging jurisdiction on a firm ground before the Court of Appeal sitting as a final Court in an Election Petition appeal, it is unnecessary to Consider arguments and decide other issues raised in the appeal after dealing with the issue of jurisdiction. See ALHAJI BARI BUDO NUHU V. ALHAJI ISOLA ARE OGELE (2003) 12 SCNJ. 158. PER CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A
JUSTICES
VICTOR AIMEPEMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. JAMES IDAHOSA OJEMENVA
2. ACTION CONGRESS Appellant(s)
AND
1. OMOKHODION BRIGHT EHI
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER INEC EDO STATE
5. ELECTORAL OFFICER (INEC) ESAN WEST CONSTITUENCY Respondent(s)
CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A (Delivering the leading Judgment): This appeal flows from the decision of the Governorship, and Legislative Houses Election Petition Tribunal Edo State in which their Lordships who presided over the Petition of the Appellant dismissed his Petition. The Petitioner James Idahosa Ojemenva (Appellant herein) contested election into the Edo State House of Assembly for Esan West constituency under the platform of the Second Appellant the Action Congress against the 1st Respondent Omekhodion Bright Ehi who contested under the platform of the 2nd Respondent (PDP). At the Conclusion of the Election, the 3rd – 5th Respondents returned the 1st Respondent as elected. The result of that election was said to have been declared on the 14/4/07.
Aggrieved by the declaration, the Appellant as Petitioner in the lower tribunal commenced these proceedings on the 14th of May 2007 when he filed the Petition. Wherein he claimed, in paragraph 72 there of, the following reliefs:
“(i) An order invalidating the 52,023 votes or such part of the votes scored or allocated to the 1st & 2nd Respondents by the 3rd, 4th and 5th Respondents as may be found to be invalid in Esan West Constituency election held on 14/4/07 on the ground of corrupt practices or non – compliance with the provisions of the Electoral Act, 2006.
(ii) An order declaring the Petitioners as validly elected and returned as the winners of the Esan West Constituency Election of Edo State House of Assembly, conducted on 14/4/07 having Scored the highest number of lawful votes of the total valid votes cast in the said election after removing the invalid votes allegedly scored or allocated to the 1st & 2nd Respondents.”
The Petition proceeded to trial before the lower tribunal, and at the conclusion of evidence and addresses of Counsel, the tribunal in a considered Judgment dismissed the petition as lacking in merit and held that the 1st Respondent polled the highest number of votes cast at the election and was therefore the winner of the said election into the Edo State House of Assembly for Esan West Constituency.
Not pleased with the decision of the lower tribunal, the Appellant now appealed to this Court on 12 grounds of appeal as shown in his amended Notice and Grounds of appeal, which without their particulars, are as follows:
GROUND 1
The learned Justice of the Election Petition Tribunal erred in Law when they held at page 17 of the Judgment as follows:-
“We see that Exhibit 37 signed in the Tribunal does not match the signature of RW3 on the deposition. It was a good try but they are different. See section 108 Evidence Act 1990. That will certainly whittle down the weight of his evidence. The signature on exhibit 38 is not the same with the signature on the deposition of RW5. That also whittles down the weight of the evidence … the evidence of the witnesses for the 1st and 2nd Respondents after the shedding of much weight due to non-execution of the deposition still outweigh the evidence of the 1st and 2nd petitioners. The 1st and 2nd Petitioners have not therefore proved their case upon oral evidence against the 1st and 2nd Respondents, beyond reasonable doubt.”
And thereby occasioned a miscarriage of Justice.
GROUND 2
The Learned Justice of the Election Petitions Tribunal erred in Law when they held at page 16 of the judgment as follows:-
“The effect is that the 1st and 2nd Petitioners have not presented direct, credible and sound oral evidence in their Petition”.
And thereby occasioned a miscarriage of Justice.
GROUND 3
The Learned Justice of the Election Petition Tribunal erred in Law when they held at page 20 of the judgment that:-
“with regards to units 3, 5 and 10 of ward 9 the 1st and 2nd Petitioners have only tendered the manual voters register which are not accredited. There is evidence of RW7 and RW9 that both manual and electronic voters’ registers were used which was not contradicted. We think that in the absence of the electronic registers for the units it will be unsafe to invalidate those units based on non-accreditation of the manual voters registers only and we decline to do so”
And failed also to cancel the votes and result credited to the parties in ward 10 unit 8 and ward 9 unit 1.
And thereby occasioned a miscarriage of justice.
GROUND 4
The Learned Justices of the Election Petition Tribunal erred in Law in failing to cancel the results and the votes credited to the parties in ward 2 unit 9.
GROUND 5
The Learned Justices of the Election Petition Tribunal erred in law in failing to cancel the results and the votes credited to the parties therein in ward 2 unit 2.
GROUND 6
The Learned Justices of the Election Petition Tribunal erred in law in failing to cancel the results and the votes credited to the parties therein in units 8, 13 & 14 of ward 4.
GROUND 7
The Learned Justices of Election Petition Tribunal erred in Law in failing to cancel the results and the votes credited to the parties therein in Ward 5 unit 3, ward 6 units 5 and ward 9 unit 3.
GROUND 8
The Learned Justices of Election Petition Tribunal erred in Law in failing to cancel the results and the votes credited to the parties therein in units 3, 6, 10 and 11 of ward 6.
GROUND 9
The Learned Justice of Election Petition Tribunal erred in Law in failing to cancel the result and votes credited to the parties therein in ward 9 unit 2 and 3.
GROUND 10
The Judgment of the Election Petition Tribunal is against the weight of evidence.
GROUND 11
The Learned Justice of the Election Petition Tribunal misdirected themselves in failing to effect the correction in the results and votes credited to the parties in ward 1, unit 8, ward 7 unit 8 and form EC8B (1) for ward one.
GROUND 12
1) The Learned Justices of the Election Petition Tribunal misdirected themselves stating the figure recorded for the 1st and 2nd Respondents for ballot papers that were not signed and not stamped.
Both sides filed briefs of argument in the appeal. In their further amended brief of argument, the 1st & 2nd Respondents inter alia raised preliminary objection contending that the petition is incompetent having been filed out of time, which therefore affected the jurisdiction of the Court.
On their part the 3rd – 5th Respondents in their brief raised objection to Ground Eleven of the Grounds of appeal.
The 1st & 2nd Respondents by motion dated 9/2/09, filed the same day, prayed this Court for an order granting them leave to raise a fresh issue on appeal bothering on jurisdiction and granting them leave to adduce additional evidence on appeal by relying a Certified true copy of form EC8E, notice of declaration of result dated 14/4/07. This Court heard that application and granted the first limb of the prayer namely to raise the issue of jurisdiction on appeal and order them to argue the Second relief which seeks to introduce fresh evidence on appeal in their brief in the main appeal.
In their argument on the second arm of their prayer, the 1st & 2nd Respondents relying on a Seven paragraph affidavit to which a Certified true copy of form EC8A (i) was exhibited as Exhibit A, argued that under order 4 Rules 2, 3 & 4 of the Court of Appeal Rules 2007, this Court can receive further evidence on appeal.
Counsel for the 1st & 2nd Respondents Contended that the said Exhibit A sought to be relied upon is not fresh to the proceedings, but only further evidence to establish that the result of the said election was declared on the 14/4/07. He referred to the various pleadings of the parties touching on Exhibit A, and argued that from the pleadings of the parties on that document, the document was not fresh evidence, but further or additional evidence. In the Circumstance, he urged the Court to allow the application for the document to be accepted as further evidence.
In his reply on the application for further or additional evidence, learned Counsel for the Appellant argued that the prayer for additional evidence is not jurisdictional in character, but one anchored on unpleaded and unproven facts, and therefore cannot be let in at this stage. He contended therefore that that prayer is belated. He argued that in an election petition, an application of this nature must be taken timeously in view of paragraph 49 (2) of the first Schedule to the Electoral Act 2006 which he contended foreclosed such matter after a party had taken steps in the proceedings.
I have carefully considered the arguments on both sides on the document sought to be used as further evidence in this matter, and I am of the view that the question as to the time of filing a Petition flowing from a declaration of the result of an Election is a fundamental issue by virtue of Section 141 of the Electoral Act 2006. Paragraphs 3, 15, 18, 31 and 70 of the Petition clearly pleaded when the Election was held namely 14/4/07. The declaration of the Result of that Election was pleaded in paragraph 16 of the petition wherein the Petitioner pleaded that the 3rd, 4th & 5th Respondents declared 1st and 2nd Respondents winners of the Election. Thus the holding of the Election and the declaration of the result of the Election become relevant facts in issue. Evidence to establish these facts are therefore material. So the document sought to be used as additional evidence to establish this relevant fact of date of declaration is materially relevant.
In the Circumstance therefore, I will allow the Second limb of the application and accept the certified true copy of form EC8E 1 as additional or further evidence in this appeal.
Having allowed this additional or further evidence let me now dispose of the Preliminary Objection on jurisdiction.
The main issue for determination in the preliminary objection is “Whether the Petition was filed out of time”.
It is trite that the issue of jurisdiction is a threshold issue which must be decided as soon as it is raised, and it may be raised at any stage of the proceedings and even on appeal. Where a Court lacks jurisdiction, no matter how well the trial was conducted, the trial would be a nullity. See CHIEF ELIGBE V. OMOKHAFE (2004) 12 SCNJ. Page 106.
ELABANJO V. DAWODU (2006) 6 SCNJ 204.
The issue of Jurisdiction raised in the preliminary objection will be considered and dealt with first. The disposal of this issue one way or the other will affect the entire appeal. If I find that the issue of Jurisdiction raised in the preliminary objection is well within the law, this Court will have no jurisdiction to go into the main appeal. If on the other hand the issue of jurisdiction is misconceived, I will then go into the issues raised in the main appeal.
As the final Court in election matters other than the Presidential election, the disposal of the issue of jurisdiction will affect the appeal. Where an appeal is based on several grounds which include a ground raising and challenging jurisdiction on a firm ground before the Court of Appeal sitting as a final Court in an Election Petition appeal, it is unnecessary to Consider arguments and decide other issues raised in the appeal after dealing with the issue of jurisdiction. See ALHAJI BARI BUDO NUHU V. ALHAJI ISOLA ARE OGELE (2003) 12 SCNJ. 158.
It is the case of the 1st & 2nd Respondents that the 1st Respondent OMOKHODION BRIGHT EHI was declared winner on the 14th of April 2007 the day the election was held. The Appellant filed the Petition on the 14th of May 2007 i.e. on the 31st day, and therefore strayed from the 30 days provided for under Section 141 of the Electoral Act 2006. They cited several authorities to drive home this point including FADARE V. ATTORNEY GENERAL (1982) 4 S.C page 1.
NONYE V. ANYICHIE (1989) 2 NWLR (PT. 101) page 110. OGBEBOR V. DANJUMA (2003) 15 NWLR (PT. 843) page 403 at 426 – 427.
The Appellants on their part argued that since the last day fell on a Sunday regarded as a “Holiday”, they were within the ambit of the law to have filed the Petition on Monday the 14th of May 2007 the next working day. They also cited numerous authorities to buttress this stand including AGBAI V. INEC (2008) 14 NWLR (PT. 1108) 417 at 434.
KAINJI ALUGBE – OBIA V. MARTIN OKONTA & 3 ORS. APPEAL NO.CA/B/EPT/260/07 delivered on the 21st of February 2008. BALOGUN V. ODUMOSU (1999) 2 NWLR (PT. 592) 590 at 595. The 3rd – 5th Respondents did not argue the issue of jurisdiction in their brief.
Section 141 of the Electoral Act 2006 provides as follows:
“An Election Petition under this Act SHALL be presented within Thirty (30) days from the date the result of the election is declared” (underlining mine for emphasis).
All Counsel in this appeal conceded that the result was declared on the 14/4/07, hence the Appellant concentrated on the fact that since the last day fell on Sunday, a non working day, that the Petition filed on the 14th of May 2007 the following day was well within the Law.
I have carefully considered the arguments and authorities cited on the issue of jurisdiction raised in the preliminary objection of the 1st & 2nd Respondents.
There is no doubt that the said election was declared on the 14th of April 2007. It is also not in doubt that the Appellant filed the Petition at the lower tribunal on the 14th of May 2007 i.e. 31 days after the declaration of the said result.
I am not unmindful of the decision of this Court in Appeal NO.CA/B/EPT/221/08 PATRICK IKHARAIALE & ANOR. V. THEOPHILUS OKOH & ORS. delivered on the 23rd of April 2009, and other decisions of this Court on the interpretation of Section 141 of the Electoral Act 2006. The facts and circumstances of that case are very similar to this. I have therefore decided not to dwell on the arguments of Counsel on the issue of Jurisdiction to avoid repetition. I see no cogent reason, or any reason for that matter to depart or differ from that Judgment.
In the circumstance of this case, I hold that time began to run on the 14th of April 2007, the day the result was declared as clearly seen on form EC8E 1, and that time ended on the 13th of May 2007.
The filing of the Petition on the 14th of May 2007, one day outside the statutory period has therefore resulted in fatal consequences on the Petitioner (Appellant herein).
The Petition filed on the 14th of May 2007 having been filed on the 31st day has unfortunately strayed outside the period stipulated by Section 141 of the 2006 Electoral Act. The fact that the last day fell on a Sunday is no excuse to justify this lapse. The Petition is statute barred and Section 141 of the Electoral Act does not allow for extension of time.
If the Petition is statute barred, it means the lower tribunal lacked the competence to entertain the petition. The trial and the subsequent Judgment is an exercise in futility no matter how well conducted.
The said decision is a nullity as well as the consequential orders. The preliminary objection on jurisdiction by the 1st & 2nd Respondents is well within the law, and hereby upheld. The Petition filed by the Appellant at the Tribunal below on the 14th of May 2007 having been declared incompetent is hereby Struck Out. I make no order as to costs.
VICTOR A. O. OMAGE, J.C.A, OFR: I agree.
ALI ABUBAKAR BABANDI GUMEL J.C.A: I agree.
Appearances
RICKY TARFA SAN
WOLE IYAMMA
A.J. OWONIKOKOFor Appellant
AND
I.E. IMADEGBELO SAN
A. ALOFOJE, V. EGBON,
O. ESEZEBOR
EKI OMO – OSAGIE
AYI OBASEKI MISSFor Respondent
