SENATOR FESTUS BODE OLA V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ANOR
(2012)LCN/5712(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 5th day of December, 2012
CA/EK/19/2011
RATIO
APPEAL: EFFECT OF A GROUND OF APPEAL WHERE NO ISSUE IS DISTILLED FROM
It is my view that where no issue/issues is or are distilled from a Ground of Appeal, such a ground or grounds is or are deemed to have been abandoned and should be struck out. PER JIMI OLUKAYODE BADA, J.C.A.
ELECTION MATTERS: PROPER WAY TO QUESTION ERROR DISCOVERED AFTER A RETURN HAS BEEN MADE BY THE RETURNING OFFICER
Where an error is discovered after a return has been made by the Returning Officer following the declaration of an election result, the Returning Officer cannot make a second return as any subsequent return would be invalid. The proper way to question the 1st return is by way of petition to the appropriate Election Tribunal which has jurisdiction to determine all questions about the election.
See:- ABANA VS OBI (2004) 10 NWLR PART 881 PAGE 330. PER JIMI OLUKAYODE BADA, J.C.A.
CONSTITUTIONAL LAW: STATUTORY PROVISION FOR THE NATIONAL ASSEMBLY
The provisions of the 1999 constitution of the Federal Republic of Nigeria 1999 (as amended) which I mentioned earlier in this Judgment are hereby set out as follows:-
“(47) There shall be a National Assembly for the Federation which shall consist of Senate and a House of Representative
(48) The Senate shall consist of the three Senators from each of the State and one from the Federal Capital Territory, Abuja.
(64) (i)The Senate and the House of Representative shall each stand dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House.”
The above section of the Constitution i.e. Section 64(i) is unambiguous as regards the lifespan of the Senate. The intention of the lawmakers is clears. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
SENATOR FESTUS BODE OLA Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. THE CLERK NATIONAL ASSEMBLY Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Federal High Court, holden at Ado-Ekiti in suit no. FHC/AD/M08/2010 – SENATOR FESTUS BODE OLA V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 1 OTHER; delivered on 7th day of December, 2010.
Briefly the facts of the case are that the Appellant as Applicant filed an originating summons at the trial court in which he contended that he was entitled to payment of salaries and allowances due to him as a Senator of the Federal Republic of Nigeria for a period of four (4) years being the life span of Senate between proclamation and dissolution and specifically that he was entitled to those emoluments between 29th day of May, 2007 and 6th July, 2009 when he was at the Tribunal and thereafter declared the winner of the Election held in April, 2007, but consequently sworn in as a member of the National Assembly (Senate) on 7th July, 2009.
At the conclusion of hearing, the trial court in a considered judgment dismissed the suit. It is against this judgment that this appeal was lodged.
The learned counsel for the Appellant formulated a sole issue for the determination of the Appeal. The said issue is set out as follows:-
“Whether the trial court was right when it held that the Appellant was not entitled to payment of salaries, allowances and emolument for the period from 29th May, 2007 (date of proclamation of the Senate) to 6th July 2009 (the date of his preceding swearing-in at the Senate)”.
Distilled from Grounds 1, 2 and 5 of the Notice and Grounds of Appeal).
The learned counsel for the 1st Respondent formulated a similar issue for determination. The issue is set out as follows:
“Whether the trial court was not right when it held that the Appellant was not entitled to Payment of salaries, allowances and emoluments for the period from 29th May, 2007 (date of proclamation of the Senate) to 6th July 2009 (date preceding his swearing-in at the Senate).
On his own part the learned counsel for the 2nd Respondent adopted the issue as formulated on behalf of the Appellant.
At the hearing, learned counsel for the Appellant referred to the Appellant’s brief of argument filed on 6/7/2012. He applied to adopt the said brief as his argument in this appeal.
He urged that the appeal be allowed.
On his own part, the learned counsel for the 1st Respondent referred to the 1st Respondent’s brief of argument filed on 27/7/2012.
He adopted the brief as his argument in this appeal and he urged that the appeal be dismissed.
Also, the learned counsel for the 2nd Respondent also referred to the 2nd Respondent’s brief of argument filed on 3/8/2012. He applied to adopt the said brief as his argument in this appeal.
He urged that the appeal be dismissed.
The issue as formulated on behalf of the Appellant and 1st Respondent are similar, Therefore, I will rely on the sole issue for determination formulated on behalf of the Appellant to determine this appeal:
“Whether the trial court was right when it held that the Appellant was not entitled to payment of salaries, allowances and emolument for the period from 29th May, 2007 (date of proclamation of the Senate) to 6th July 2009 (the date of his preceding swearing-in at the Senate)”.
The learned counsel for the Appellant stated that the Appellant was the lawfully elected person to the seat of Ekiti Central Senatorial District in the National Assembly and winner of the April, 2007 General Elections.
He submitted that the Appellant was the de jure Senator from the date of the proclamation of the Senate even though de facto, he was a Senator for only two years from 7th July, 2009 to 29th May, 2011.
He submitted that the Legislative life of a State House of Assembly cannot be extended beyond the constitutionally prescribed period of four (4) years from the date of the proclamation of the House of Assembly. He relied on the case of BALONWU VS GOVERNOR OF ANAMBRA STATE (2008) 16 NWLR PART 1113 PAGE 236 at 261 PARAGRAPH H.
He went further in his submission that the administration of the Oath of Allegiance and Oath of Office and participation in the sessions of the Senate are not the yardstick to measure the validity or lawfulness of the participation of a Senator rather it is the validity of his election to the Senate that is material.
The learned counsel for the Appellant urged this court to hold that the Appellant is deemed in the eyes of the law not to have been absent from Senate even for one day from the date of the proclamation and to declare that he is entitled to his salaries, allowances and emoluments.
He relied on the case of:
LADOJA VS INEC (2007) 12 NWLR PART 1047 PAGE 119.
He finally submitted that the Appellant is entitled to all the benefits as a Senator of the Federal Republic of Nigeria from the date he was sworn into the Senate pursuant to the Court of Appeal, Ilorin Judgment in CA/IL/EP/SEN/21/2008.
The learned counsel for the 1st Respondent in his own submission stated that grounds 3 & 4 were not covered by any issue and that it is deemed abandoned.
He referred to SECTIONS 69 AND 70 OF THE ELECTORAL ACT 2006 (as amended) and submitted that the import of these provisions is that at any Election, whosoever is declared by the Returning Officer after counting of votes as scoring highest number of votes shall be deemed as true winner and so declared validly elected and returned until it is otherwise declared or set aside by a competent Tribunal or Court in an Election Petition.
He relied on the following cases: –
– CPC V. INEC (2011) 18 NWLR PART 1279 PAGE 493.
-BALONWU V. GOVERNOR OF ANAMBRA STATE (SUPRA)
He also relied on:
– SECTIONS – 47, 48 AND 64 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED), and the following cases of:
– I.G.I. CO. LTD V. ODOGU (2010) 1 NWLR PART 1175 PAGE 337.
– MARWA V. NYAKO (2012) 6 NWLR PART 1296 PAGE 199 AT 270 – 281 PARAGRAPHS E-H.
– WICKS V. DPP (1947) A.C. PAGE 362 AT 367.
– UWANGBA V. F.R.N. (2000) 15 NWLR PART 1163 PAGE 91 AT 114 PARAGRAPHS C -D. 91 At 114 PARAGRAPHS C – D.
Learned counsel finally urged that the Appeal be dismissed.
The learned counsel for the 2nd Respondent referred to SECTIONS 47, 48, 64(1), 70 AND 71(A) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (as amended).
He submitted that the provisions of the Constitution referred to above recognizes the Senate and all Senatorial Districts and not an individual member of the Senate.
He stated that the wordings of the Constitution are clear and unambiguous and must be given its ordinary meaning.
He relied on the case of:
– A.G.F. V. ABUBAKAR (2007) 10 NWLR PART 1041 PAGE 1 AT 144 – 145 PARAGRAPHS H-C.
He submitted that the Court cannot read or import into the Constitution what the legislators never intended. He relied on the following cases:
– GOVERNOR, KWARA STATE V. OJIBARA (2007) ALL FWLR PART 348 PAGE 864 AT 876 PARAGRAPHS E-G
– EHUWA V. ONDO STATE INEC (2007) ALL FWLR PART 315 PAGE 1415 AT 1430 – 1431.
Learned counsel also submitted that the Seat of Ekiti Central Senatorial District was never vacant, as someone who had a Certificate of Return sat in place of the Appellant from 6th June, 2007 to 7th July, 2009.
He relied on the case of:
– EZEIGWE V. NWAWULU (2010) 4 NWLR PART 1183 PAGE 159 AT 210 PARAGRAPHS A-B.
It was also contended on behalf of the 2nd Respondent that the Appellant has failed to prove his case as to how he arrived at the sum of N33,840,880.08 (Thirty Three Million, Eight Hundred and Forty Thousand, Eight Hundred and Eighty Naira, Eight Kobo) to be his emolument and salary for the period under contention.
Learned counsel for the 2nd Respondent finally urged this Court to resolve this issue in favour of the 2nd Respondent; affirm the Judgment of the lower court and dismiss the appeal with substantial costs.
The Appellant’s sole issue for determination in this appeal covers grounds 1, 2 and 5. No issue was distilled from grounds 4 and 5.
It is my view that where no issue/issues is or are distilled from a Ground of Appeal, such a ground or grounds is or are deemed to have been abandoned and should be struck out. In the circumstance, grounds 3 and 4 in the Appellant’s Notice and Grounds of Appeal are accordingly struck out.
See the case of:
OGBE V. ASADE (2009) 18 NWLR PART 1172 PAGE 106.
The contention of the Appellant in this appeal is that since he was sworn in on 7th July, 2009, he is entitled to salaries, allowances and emolument accruing to the Seat of Ekiti Central Senatorial District of Ekiti State from 29th day of May, 2007 to the 6th day of July, 2009.
In order to get to the root of this matter, it would be necessary to examine the provisions of Sections 69(i)(c) and 70 of the Electoral Act 2006 (as amended) and Sections 47, 48 and 64 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
“69 (i) (c) The decision of the Returning Officer on any question arising from or relating to declaration of scores of candidates and the return of a candidate, shall be final subject to review by a Tribunal or Court in an Election Petition proceeding under the Act.
(70) In an election to the office of the President or Governor whether or not contested and in any other contested election to any other elective office, the result shall be ascertained by counting votes cast for each candidate and subject to the provisions of Sections 133, 134 and 179 of the constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate Returning Officer.
By virtue of the sections referred to above, the decision of the returning officer on any question arising from or relating to declaration of scores of candidates and return of a candidate is final subject to review by a Tribunal or Court in an Election Petition Proceedings under the Act.
See:- EMEKA V. EMODI (2004) 16 NWLR PART 900 PAGE 436.
Where an error is discovered after a return has been made by the Returning Officer following the declaration of an election result, the Returning Officer cannot make a second return as any subsequent return would be invalid. The proper way to question the 1st return is by way of petition to the appropriate Election Tribunal which has jurisdiction to determine all questions about the election.
See:- ABANA VS OBI (2004) 10 NWLR PART 881 PAGE 330.
In the instant case the declaration of Engineer Kila Adefemi by the 1st Respondent after counting of votes during the Senatorial Election of April 2007 was valid, and regular in that it is the duty of the Independent National Electoral Commission (INEC) to say who wins the Election and once this duty is performed all acts performed by him after he has subscribed to his Oath of Office and Allegiance as a Senator are legitimate and subsisting until it is set aside by the appropriate Tribunal or Court.
See:-CPC VS INEC (SUPRA) PAGE 493 – 544 – 545
– ABUBAKAR VS YAR’ADUA (2008) 19 NWLR PART 1120 PAGE 1
– OMOBORIOWO VS AJASIN (1984) 1 SCNLR PAGE 108
Following the above decisions it means that there was no vacuum in Ekiti Central Senatorial District in the Senate between 29th May, 2007 and 30th June 2009 when the Election of Engineer Kila Adefemi was nullified.
In BALONWU VS GOVERNOR OF ANAMBRA STATE (SUPRA) PAGE 266 – 269 PARAGRAPHS H-D this Court held among others as follows:
“Dr C. Ngige was returned as lawful Governor of Anambra State at the time before the Court’s decision nullified his Election … Governor Ngige exercised for two years all the functions of a Governor. Nothing in Law has nullified those actions, though his appointment has been nullified.
All acts performed by him in that period as Governor are legally performed. The nullification of his election has made him to cease the performance of those functions as Governor, the actions made by him at a time before his nullification remains valid and enforceable at law, to hold otherwise will engender Chaos…”
See also:- BALONWU VS GOVERNOR, ANAMBRA STATE (2009) 18 NWLR PART 1172 PAGE 13 at 49 PARAGRAPHS B-D.
The provisions of the 1999 constitution of the Federal Republic of Nigeria 1999 (as amended) which I mentioned earlier in this Judgment are hereby set out as follows:-
“(47) There shall be a National Assembly for the Federation which shall consist of Senate and a House of Representative
(48) The Senate shall consist of the three Senators from each of the State and one from the Federal Capital Territory, Abuja.
(64) (i)The Senate and the House of Representative shall each stand dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House.”
The above section of the Constitution i.e. Section 64(i) is unambiguous as regards the lifespan of the Senate. The intention of the lawmakers is clears.
It is my view that Court cannot read into or import into the Constitution what the Legislators never intended, The Seat of Ekiti Central Senatorial District was never vacant since someone who had a Certificate of Return sat in place of Appellant from 6th June 2007 to 7th July 2009. It is the law that an individual, whose Election and return was challenged, remains in office until final determination of Appeal arising from the Election Petition.
In the instant appeal, by the Judgment of Court of Appeal with Appeal No: CA/IL/SEN/26/2008 delivered on 30th June 2009, the Appellant only becomes a Senator on the day he received his Certificate of Return pursuant to the said Judgment and not earlier.
There is only one Constitutional seat for the Ekiti Central Senatorial District. The earlier occupant legitimately occupied that seat having been earlier declared, returned and sworn in according to the law.
The contention of the Appellant that since he was sworn in, on 7th July 2009 he is entitled to salaries, allowances, and emolument accruing to the Seat of Ekiti Central Senatorial District, Ekiti State from 29th day of May 2007 to 6th day of July 2009 is mis-conceived and not backed up by any law. It is morally and politically wrong for a person who did not work to present a claim for salaries, allowances and entitlement which he did not merit.
It is my view that a member of the Senate like the Appellant is only entitled to receive such salary and allowances from the day he was sworn in and not before then. It cannot be retrospective.
Before I conclude this Judgment, it is necessary to state that the Appellant has also failed to prove how he arrived at the sum of N33, 840,800.08 Thirty Three Million, Eight Hundred and Forty Thousand, Eight Hundred Naira, Eight Kobo, which he claimed to be his salaries and emoluments for the period under consideration.
The bedrock of the Appellant’s case is Paragraph 13 of the affidavit in support of the Originating Summons (See pages 14 and 15 of the Record of Appeal).
It is my view that the only way to prove paragraph 13 of the said affidavit is by documentary evidence, it is not by oral evidence or bare affidavit evidence without attaching documents showing the appellant’s averment.
Consequent upon the foregoing, it is my conclusion that this appeal lacks merit.
The sole issue is resolved against the Appellant and in favour of the 1st and 2nd Respondents.
In the result, this appeal is hereby dismissed.
There shall be N50, 000.00 (Fifty Thousand Naira) cost to each of 1st and 2nd Respondents against the Appellant.
EJEMBI EKO, J.C.A.: The only issue in this appeal is: whether the appellant, as a Senator of the Federal Republic of Nigeria, became entitled to salaries, allowances and emolument of the office of Senator from the date of the proclamation of the Senate, that is 29th May, 2007 or from the date he became entitled to sit in the Senate as a member. The appellant contested election to the Senate and a protracted litigation ensued. As a result of the protracted litigation the appellant took his seat in the Senate from 7th July, 2009 to 29th May, 2011.
I have read all the briefs filed and exchanged in this appeal. My learned brother, J.O. BADA, JCA, has exhaustively set out the facts and the summary of the arguments of the parties in the judgment just delivered. I hereby adopt the summary of facts and arguments of the parties in the said judgment, as condensed from the briefs of argument of the parties. It appears to me that Section 52 (1) of the 1999 constitution offers the needed answer to the only issue in this appeal. The provisions are herein below reproduced as follows:-
52 (i) Every member of the senate, shall, before taking his seat, declare his assets and liabilities as prescribed in this constitution and subsequently take and subscribe the oath of Allegiance and the oath of membership prescribed in the Seventh Schedule to this constitution before the President of the Senate – but a member may before taking the oaths take part in the election of a President and a Deputy President of the Senate. –
The compliance of the appellant with the above provisions is the condition precedent for his taking his seat in the Senate. It naturally follows therefore, that he becomes entitled to the salaries, allowances and emoluments of the office, as Senator of the Federal Republic of Nigeria, only from the time he took his seat in the Senate. It cannot be earlier. He is only paid the salaries, allowances and emoluments of that office as a Senator de jure and de facto and not as a Senator designate.
From his own admission these mandatory provisions of Section 52 (1) of the Constitution 1999 were only satisfied or complied with by the appellant from 6th July, 2009 when he was sworn-in as a member of the Senate. I cannot, in the circumstances, agree with the appellant that he was entitled to be paid salaries, allowances and emoluments accruable to his office as Senator from 29th May, 2007 to 6th July, 2009. The principle of law in the maxim Quantum meruit, is that a person is entitled to be paid for services he had rendered. The converse, which also is true, is that a person is not entitled to be paid for services he has not rendered.
I am, on this footing, in agreement with the judgment just delivered by my learned brother, J.O. BADA, JCA. I hereby adopt it, including all the consequential orders therein. The appeal is misconceived and it is hereby dismissed in its entirety.
MODUPE FASANMI, J.C.A.: I have read in the draft the judgment just delivered by my Lord, J. O. Bada, J.C.A.
I am in complete agreement with his erudite reasoning and conclusion. I also abide with the consequential orders contained therein.
Appearances
Mr. Chikezie AdieleFor Appellant
AND
Mr. Obafemi Adewale; with him are: Dr. Foluke Dada, Ezekiel
Agunbiade, Bunmi Olugbade, Adeyemi Adewumi, and Iyabosade Oiumide Ojo for the 1st Respondent.
Mr, J.J. Usman for the 2nd Respondent; with him is: Samuel Oguche.For Respondent
