OKON BASSEY IMERH & ANOR v. OBONG (BARR.) IME BASSEY OKON & ORS.
(2011)LCN/4803(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of September, 2011
CA/C/NAEA/175/2011
RATIO
ELECTION PETITION: WHETHER ORAL ARGUMENT CAN BE USED TO CONTRADICT, VARY , ALTER OR ADD TO THE CONTENTS OF THE FORMS EC8E(I) AS TO THE DAY THE ELECTION WAS HELD AND THE RESULT WAS DECLARED
… there was an argument by the petitioner’s learned counsel before the Tribunal as to whether the election held on 26th April, 2011 and the result was declared on 28th April, 2011 hence the petition was filed within time on 18-05-2011, it was pleaded by the Respondents’ Replies that the election was actually held on the 26th April, 2011 and the result declared the same day. This finds support in Forms EC8E(i) which the 3rd Respondent used declaring the result of the election on 26-04-2011, was pleaded and frontloaded. No oral evidence may be used to contradict, vary, alter or add to the contents of the said forms. See Section 132(1) of the Evidence Act, 2004; Unon Bank of Nigeria Ltd vs. Sax Nig. Ltd. (1994) 9 SCNJ; Union Bank of Nigeria Ltd v. Ozigi (1994) 3 SCNJ 41. PER HON. JUSTICE JOSEPH TINE TUR, J.C.A.
COMPUTATION OF TIME FOR FILING AN ELECTION PETITION: WHETHER THE DAY THE ELECTION RESULT WAS DECLARED MUST BE EXCLUDED IN THE COMPUTING THE ALLOWED TIME FOR FILING AN ELECTION PETITION
If the election was held on 26-04.2011 and the result was declared on the same day, to compute the 21 days, the day election held will be excluded. In Akeredolu v. Akinyemi (1985) 2 NWLR (Pt.10) 787 the Supreme Court held at page 794 per Aniagolu, JSC, that the date of the happening of the event, example, delivery of judgment must be excluded in computing time, citing Interpretation Act, 1964 where the legislature Section 15(2) (a) that: “A reference in an enactment to a period of days shall be construed:- (a) where the period, is reckoned from particular event, as excluding the day on which the event occurs.”This will be in consonance with the provisions of Section 285(5) of the 1999 Federal Constitution as altered. PER HON. JUSTICE JOSEPH TINE TUR, J.C.A.
ELECTION PETITION: WHETHER THE COURT WILL RESORT TO FORMS ECSE(1) IN RESOLVING THE CONFLICT OR ARGUMENT AS TO THE DAY THE ELECTION WAS HELD, AND THE RESULT WAS DECLARED
…Forms ECSE(1) will be used as acid test to resolve the conflict or argument as to the day the election held, and the result was declared. See Fashanu vs Adekoya (1974) 1 All NLR (Pt.1) 35 at 41 and Olujunle vs Adeagbo (1988) 2 NWLR (Pt.75) 238 at 253. PER HON. JUSTICE JOSEPH TINE TUR, J.C.A.
ELECTION PETITION: TIME FRAME FOR PRESENTING AN ELECTION PETITION
Accordingly, from 26-04-2011 to 18-05-2011 is twenty, two clear days. I am of the humble opinion that the petition was presented one clear day out of time and merited a dismissal by the Tribunal. See Orji vs Ugochukwu (2009) 14 NWLR (Pt.1161) 207 at 283; Ogbebor vs Danjuma (2003) 15 NWLR (Pt.843) 403. PER HON. JUSTICE JOSEPH TINE TUR, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. OKON BASSEY IMERH
2. ACTION CONGRESS OF NIGERIA (ACN) Appellant(s)
AND
1. OBONG (BARR.) IME BASSEY OKON
2. PEOPLE DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
HON. JUSTICE JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The Independent National Electoral commission (3rd Respondent) conducted elections into the Ibiono Ibom State constituency of the State House of Assembly, Akwa Ibom State on 26th April, 2011. The Action congress of Nigeria fielded Okon Bassey Imerh while the Peoples Democratic Party’s candidate was Barrister Obong Ime Bassey Okon, Mr Okon Bassey Imerh (1st Petitioner) and the Action Congress of Nigeria (2nd Petitioner) were not satisfied with the return of Obong Ime Bassey Okon (1st Respondent) as the candidate with the highest number of votes’ namely, 52,010 votes as against 4,433 votes credited to them by the 3rd Respondent hence they presented a joint petition before the Election Petition Tribunal at Uyo, Akwa Ibom State on the 18th May, 2011 praying for the cancellation of the result of the election. The grounds were that the 1st Respondent was not duly elected by a majority of valid and lawful votes cast at the election. The petitioners further prayed for the Tribunal to hold that the election was not conducted in accordance with law and to order fresh elections.
Upon service of the petition the 2nd Respondent filed a reply on 06-06-2011 while the 1st Respondent did so on 07-07-2011. With leave of the Tribunal the 3rd Respondent (INEC) filed a Reply on 01-07-2011. The petitioners filed Reply to the issues raised by the 2nd Respondent on 09-07-2011.
On 16-07-2011 the petitioners filed a Reply to the 1st Respondent’s Reply. Furthermore, on the 20-07-2011 the petitioners again filed a Reply to the 3rd Respondent’s Reply. Following these developments the 3rd Respondent brought a preliminary objection to the hearing of the petition on the ground that since the election was held on 26th April, 2011 and the result declared the same day but the petition was presented on 18th day of May, 2011 this was outside the time stipulated by Section 235(5) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which reads as follows:
“285(5)An election petition shall be filed within 21 days after the date of the declaration of result of the elections.”
Learned Counsel appearing for the parties made copious submissions to the Tribunal on the 21-07-2011. On the 22-07-2011 the Tribunal ruled as follows:
“We have considered the submissions of 1st, 2nd and 3rd Respondents in this Petition. The petitioner’s counsel having walked out of court before the 3rd Respondent moved the preliminary objection. We have noted that the clear non-compliance with the provision of Section 255(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is an incurable defect in the petition before this Tribunal. We hereby grant the prayers of the 3rd Respondent, this petition is hereby dismissed for the said defect has robbed this Tribunal of the jurisdiction to entertain this petition or it is contrary to section 285(5) of the Constitution.”
On the 25-07-2011 the petitioner lodged an appeal before this Court on two grounds seeking that the dismissal of the petition be set aside and an order be made remitting the petition to be heard on the merit. Furthermore, that the 1st Respondent’s deposition in Reply to the petition be struck out as an abuse of the Court processes. Counsel formulated two issues for determination, namely, whether the Tribunal was right to have dismissed the petition under the provision of Section 285(5) of the Constitution supra and secondly, whether the petitioners were denied fair hearing “.
Learned Counsel to the 1st Respondent adopted the same issues in his client’s Brief of Argument. The 2nd Respondent’s issue one is whether the Tribunal had jurisdiction to have entertained the petition on the 18-05-2011 whereas the election held on 26-04-2011 and the result was declared the same day. There is no brief of argument from the 3rd Respondent.
Having read the briefs of the petitioners, and that of the leaned Counsel to the 1st and 2nd Respondents, I am of the humble opinion that the only issue for determination in this Court is whether the petition was filed within 21 days as stipulated by the provisions of Section 235(5) of the Constitution of the Federal Republic of Nigeria as altered.
I have already reproduced the provisions of section 285(5) of the constitution (as altered) to show that an election petition has to be filed within 21 days after the date of the declaration of result.
Though there was an argument by the petitioner’s learned counsel before the Tribunal as to whether the election held on 26th April, 2011 and the result was declared on 28th April, 2011 hence the petition was filed within time on 18-05-2011, it was pleaded by the Respondents’ Replies that the election was actually held on the 26th April, 2011 and the result declared the same day. This finds support in Forms EC8E(i) which the 3rd Respondent used declaring the result of the election on 26-04-2011, was pleaded and frontloaded. No oral evidence may be used to contradict, vary, alter or add to the contents of the said forms. See Section 132(1) of the Evidence Act, 2004; Unon Bank of Nigeria Ltd vs. Sax Nig. Ltd. (1994) 9 SCNJ; Union Bank of Nigeria Ltd v. Ozigi (1994) 3 SCNJ 41.
If the election was held on 26-04.2011 and the result was declared on the same day, to compute the 21 days, the day election held will be excluded. In Akeredolu v. Akinyemi (1985) 2 NWLR (Pt.10) 787 the Supreme Court held at page 794 per Aniagolu, JSC, that the date of the happening of the event, example, delivery of judgment must be excluded in computing time, citing Interpretation Act, 1964 where the legislature Section 15(2) (a) that:
“A reference in an enactment to a period of days shall be construed:-
(a) where the period, is reckoned from particular event, as excluding the day on which the event occurs.”
This will be in consonance with the provisions of Section 285(5) of the 1999 Federal Constitution as altered.
Secondly, Forms ECSE(1) will be used as acid test to resolve the conflict or argument as to the day the election held, and the result was declared. See Fashanu vs Adekoya (1974) 1 All NLR (Pt.1) 35 at 41 and Olujunle vs Adeagbo (1988) 2 NWLR (Pt.75) 238 at 253.
Accordingly, from 26-04-2011 to 18-05-2011 is twenty, two clear days. I am of the humble opinion that the petition was presented one clear day out of time and merited a dismissal by the Tribunal. See Orji vs Ugochukwu (2009) 14 NWLR (Pt.1161) 207 at 283; Ogbebor vs Danjuma (2003) 15 NWLR (Pt.843) 403.
The issue of fair hearing is not a live issue that can be raised at this stage of the appeal. The petition was filed out of time thereby depriving the Tribunal of the jurisdiction to entertain the petition. We uphold the order of the Tribunal dismissing the petition.
This appeal lacks merit and is dismissed with N20,000.00 cost to each of the 1st and 2nd Respondents.
HON. JUSTICE UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Tina Tur, JCA and have this to add.
This is an appeal against the Ruling of the Tribunal delivered on the 22nd of July, 2011 dismissing the petition of Okon Bassey Imerh as 1st Petitioner and A.C.N. as 2nd petitioner. The petitioners being dissatisfied with the Ruling appealed to this court.
The Appellants filed their appeal and formulated 2 issues for determination namely:-
(1) Whether the Tribunal was right to have dismissed the petition on the ground or for the reason that the petition did not comply with s.285(5) of the 1999 constitution (as amended).
(2) Whether the Petitioners were given fair hearing by the Tribunal at the hearing of the application.
The appellants proferred their arguments and so did the 1st and 2nd Respondent, 3rd Respondent filed no brief.
Issue 1 is an issue bordering on the Tribunal’s Jurisdiction to hear the petition of the petitioners.
Simply put, the issue is
“Whether the petition field by the appellants on 18th May, 2011 was filed within time”.
S285 (5) of the 1999 Constitution States: An election petition shall be field within 21 days after the date of the declaration of result of the elections.
This section envisages that an Election Petition must be brought before the expiration of 21 days after the declaration of the results in any election.
The question here is when was the Results of this election complained of declared? The appellants in their petition stated that the 1st Appellant contested in the election into the Akwa Ibom State House of Assembly and that the Results were declared on the 28th April, 2011
All the respondents to the petition pleaded that the Results were declared on the 26/04/11. Where there is a conflict as to what date the elections were declared, the Tribunal would only Resort to the 3rd Respondents forms EC 8E(1) which is called “Declaration of Results of election. See page 686 of the Record of Proceedings of the Tribunal. The form clearly shows that the elections results were declared on the 26th April, 2011. The aggrieved party has 21 days to file his petition after the date of the declaration. It therefore means that the date starts to run from 27th April, 2011 and expires on the 17th May, 2011.
Any petition filed after the 17th May, 2011 would have been field out of time.
The appellants petition was filed on the 18th May, 2011 a day outside the envisaged 21 days prescribed by the Election Act 2011 (as amended). It is therefore out of time.
The Tribunal was right in upholding the Preliminary Objection filed by the 3rd Respondent that the petition was filed out of time. If a petition is filed out of time, the Tribunal lacks the necessary jurisdiction to deal with the petition filed outside the mandatory 21 days, it being statute barred.
When a petition is statute barred, the petition may or may not have merit but the Tribunal no longer hand the jurisdiction to deal with the petition. The tribunal can only dismiss the petition it being statute barred.
This appeal lacks merit and it is therefore dismissed. The ruling of the Tribunal is upheld. The Declaration and return of the 1st Respondent Obong (Barr). Ime Bassey Okon is hereby affirmed.
I make no orders as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read before now the lead judgment in this appeal delivered by my learned brother, Joseph Tine Tur, JCA. I am fully convinced that the live issue in this appeal which is whether the petition of the appellants was validly filed within the statutory period of 21 days allowed under section 285 (5) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) has been well considered and determined in the lead judgment. I agree with the reasons advanced by my learned brother and the conclusion that the appeal is devoid of any merit.
The appeal is dismissed by me, with costs as awarded in the lead judgment.
Appearances
Aniekan G. UdoFor Appellant
AND
Anietie Akpam Udo
Ekem ThomasFor Respondent
