OMINI IKPI EWA & ANOR v. HON. BASSEY EWA & ORS
(2010)LCN/4220(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of July, 2010
CA/C/NAEA/126/2009
RATIO
ELECTION PETITION: WHETHER AN ELECTION PETITION CAN BE PRESENTED BY TWO DISTINCT AND DIFFERENT CANDIDATES SPONSORED BY DIFFERENT POLITICAL PARTIES
Section 144 (1) of the Electoral Act, 2006 provides – “144(1) An election petition may be presented by one or more of the following persons (a) a candidate at an election (b) a political party which participated in the election” Since this court interpreted the provision and held that the presentation of an election petition by separate and different candidates sponsored by different political parties renders the petition incompetent, a contrary holding by another Division of the same court will only bring uncertainty and confusion in the law; more so since there are no distinguishable features between this case and that in the Goli’s case supra. In the opinion of Abdullahi JCA at page 602- “…the only permissible situation where election petition by two distinct and different candidates and political parties are maintainable is through the process of consolidation and this may arise where two or more unsuccessful candidates in an election either separately on their own or in conjunction with their political parties, present election petition against the return of the winner of the election.” PER KUMAI BAYANG AKAAHS J.C.A.
Before Their Lordships
KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria
JA’AFARU MIKAILUJustice of The Court of Appeal of Nigeria
NWALE S. NGWUTAJustice of The Court of Appeal of Nigeria
Between
OMINI IKPI EWA & ANORAppellant(s)
AND
HON. BASSEY EWA & 271 ORSRespondent(s)
KUMAI BAYANG AKAAHS J.C.A. (DELIVERING THE LEADING JUDGMENT): The main appeal deals with the striking out of the petition. There are two interlocutory appeals. The 1st interlocutory appeal is numbered CA/C/NAEA/126/09A and is concerned with the refusal of the Tribunal to admit the Reply of the 1st and 6th Respondents dated 30m July, 2007 while the second interlocutory appeal: No. CA/C/NAEA/126/09B is centred on the refusal by the Tribunal to strike out the Replies of the Respondents to the Petition.
The 1st Appellant was the candidate for the Peoples Progressive Alliance (PPA) and he contested the election held on 28th April 2007 for the Abi/Yakurr Federal Constituency Seat of the House of Representatives while the 2nd Appellant was sponsored by the Action Congress (AC) for the same seat. The 1st Respondent who was the candidate of the Peoples Democratic Party (PDP) won and was declared winner of the said election. The appellants were not satisfied with the outcome of the election and they filed a joint petition challenging the declaration. The Petition was dismissed but on 10/12/2008 the appeal was allowed and a retrial ordered. At the retrial, objection was taken as to the competence of the Petition. The Tribunal (Coram Akomolafe-Wilson, Esan and Onyemenam JJ) upheld the objection and struck out the Petition on 19th May 2009 hence this appeal. The 1st and 6th Respondents are represented by Mr. Joe Agi SAN. They shall hereafter be referred to as the 1st set of Respondents while Mr. G.N. Okonkwo of counsel is representing the 2nd – 5th and 7th – 272nd Respondents. They will be referred to as the 2nd set of Respondents.
During the hearing of the Petition de novo a number of witnesses testified before the Petitioners closed their case. Mr. Agi, learned Senior Counsel for the 1st set of respondents indicated he will not call any evidence but will be relying on the case of the Petitioners because according to him the Petitioners did not prove anything (See page 714 lines 12-15 of the records). Mr. Okonkwo of counsel for the 2nd set of Respondents also indicated he was not calling any witnesses (see p.723 lines 21-23 of the Records). It was at the stage of final address that learned Senior Counsel for the 1st set of Respondents raised objection as to the competence of the petition and argued that under Section 144 (1) of the Electoral Act 2006, the presentation of a joint petition by two petitioners from two separate and distinct political parties with diverse interests who contested against each other in the elections renders the petition void and accordingly, robs the Tribunal of jurisdiction. The Tribunal in upholding the objection relied on the decision in EBI MATTHEW SUNNY GOLI & 5 ORS v. HON. NELSON BELIEFF & ORS (2009) 4 NWLR (PT.1132) 585 delivered by the Court of Appeal Port Harcourt Division on 18/2/2008 where it was held that the filing or presentation of an election petition by separate and different candidates sponsored by different political parties renders the petition incompetent.
Section 144 (1) of the Electoral Act, 2006 provides –
“144(1) An election petition may be presented by one or more of the following persons
(a) a candidate at an election
(b) a political party which participated in the election”
Since this court interpreted the provision and held that the presentation of an election petition by separate and different candidates sponsored by different political parties renders the petition incompetent, a contrary holding by another Division of the same court will only bring uncertainty and confusion in the law; more so since there are no distinguishable features between this case and that in the Goli’s case supra. In the opinion of Abdullahi JCA at page 602-
“…the only permissible situation where election petition by two distinct and different candidates and political parties are maintainable is through the process of consolidation and this may arise where two or more unsuccessful candidates in an election either separately on their own or in conjunction with their political parties, present election petition against the return of the winner of the election.”
In paragraphs 2 and 3 of the Petition it was averred as follows:-
“2. The 1st Petitioner contested the said Election under the platform of the Progressive Peoples Alliance PPA, one of the Registered Political Parties in the federal Republic of Nigeria
3. The 2nd Petitioner contested the said election under the platform of the Action Congress one of the Registered Political Parties in the Federal Republic of Nigeria.”
Since the Petitioners contested the election under different Political parties, the joint petition they presented is incompetent and is according struck out. In view of what I have stated above, there is no need to consider the Interlocutory appeals, as arguments proferred thereon have become a mere academic exercise.
One aspect of this case that I wish to comment upon is the averment in paragraphs 34, 35 & 36 of the Petition on the submission of NYSC Exemption Certificate by the 1st Respondent. In the said paragraphs 34, 35 and 36 it was averred as follows:
“34. The 1st Respondent did not qualify to contest the said election on the ground of his presentation or stating in the affidavit in support of his Nomination paper that he was exempted from the National Youth Service Corps (NYSC).
35. The Petitioners aver that by the provision of Section 32(5) of the Electoral Act states that supplying of false information in the affidavit is a ground of disqualification.
36. The Petitioners aver that at the time of the graduation of the 1st Respondent from the Nigerian law School he was already a member of the Cross River State House of Assembly but was still within age of eligibility prescribed by the NYSC Act 2004. The 1st Respondent obtained the exemption Certificate in December 1999 when he was already a Member of the Cross River State House of Assembly as at May 1999. Notice is hereby given to the 1st Respondent to produce the said Exemption Certificate. Notice is hereby given to the 1st Respondent to produce his application for exemption from participation in NYSC. The 1st Respondent obtained the purported NYSC Exemption Certificate through false Declaration.”
PWS, Iniobong Utuk, a legal officer with INEC was subpoenaed to produce the Certificate of Exemption No. 266286 dated 6/12/99 but stated in his evidence that there was no such certificate in their records (see page 665 of the Records). The Director-General of the NYSC was subpoened to produce certain documents. Mrs. Joyce Akaa who testified as PW9 stated as follows:
“I am aware of a subpoena on Director-General of NYSC to produce certain documents. I am here to represent him. I do not have NYSC Certificate of Exemption issued in the name of Ewa Bassey Eko of Council of Legal Education dated 6th December 1979 with No. 266286 because it does not emanate from NYSC. I have no document to produce” (See page 699 lines 2-8 of the Records).
The evidence portrays that if the said NYSC Exemption Certificate was presented by the 1st Respondent to obtain the clearance to contest the election, a charge of using a false document can be brought against him. Either the Office of the Attorney-General can file the charge or the Petitioners, can apply for a fiat to prosecute the offence.
With this observation, I find that there is no merit in the appeal and it is accordingly dismissed. The appellant urged this court to invoke Section 15 Court of Appeal Act and deal with the appeal on the evidence adduced. The request cannot be entertained because the evidence adduced was oral evidence and only the Tribunal could have ruled on the credibility of the witnesses.
JAAFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my learned brother Kumai Bayang Akaahs, JCA. There is no merit in the appeal and I dismiss it.
I award no costs.
NWALI SYLVESTER NGWUTA, J.C.A.: I read in draft the lead judgment just delivered by my learned brother, Akaahs, JCA, and I agree with His Lordship’s reasoning and conclusion.
Consequently I also dismiss the appeal. I order that parties bear their costs.
Appearances
Chief O.O.;
Obono-Obla;
E.O. Oka and
O.A. OmowayeFor Appellant
AND
Mr. Joe Agi SAN;
Nta A. Nta;
C. Onugba
G.N. OkonkwoFor Respondent
