STEPHEN EHIKIOYA IDEHENRE & ANOR. V. EHIGIAMUSOE KINGSLEY OMIYI & ORS. (2010)

STEPHEN EHIKIOYA IDEHENRE & ANOR. V. EHIGIAMUSOE KINGSLEY OMIYI & ORS.

(2010)LCN/4162(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of December, 2010

CA/B/EPT/90/2008

RATIO

ISSUE OF JURISDICTION: ESSENCE OF THE ISSUE OF JURISDICTION

Let me say here that I agree with the learned counsel to the 1st and 2nd Respondents that issue of jurisdiction can be raised at any stage of the proceedings before judgment in any form and by any means. Once it is raised it cannot be glossed over. See GALADIMA V. TAMBAI (2000) 11 NWLR (Pt.677) page 15 at 16. I therefore repeat the part of authority cited with which I agree i.e. GALADIMA V. TAMBAI (2000) 11 NWLR (Pt.677) page 15 at 16 as per ACHIKE JSC: “……. Appellant’s learned counsel, Mr. J.B. Daudu, SAN, while appearing not to have questioned the belated raising of the issue of jurisdiction, nevertheless he forcefully submitted it was erroneous for the respondents to have raised the issue of jurisdiction by way of preliminary objection rather than by filing a cross-appeal or filing a respondents’ notice. To counsel in his submission, an appeal cannot be summarily disposed of by a preliminary objection except by either of the other two modes urged by him. Counsel strongly relied on Orji v. Zaria Industries Ltd. (1992) 1 NQLE (Pt.216) 124. On the contrary, Mr. J. Abbas-Ibrahim, learned respondents’ counsel, with no less force submitted that since the matter in controversy related to the jurisdiction of the trial court it could be properly and rightly raised at any stage of trial and even by way of a preliminary objection……. Time never runs against a court to decide on the issue of jurisdiction. The consequence of a court continuing a case where it lacks jurisdiction is, as it were, like the court embarking on a frolic which would indisputably result in a nullity for which an appellate court, so invited, would have no compuntion whatsoever to declare null and void. Jurisdictional question, be it in criminal or civil matter, has this same devastating consequence. An attack or question as to jurisdiction cannot be properly glossed over by any court once it is raised by the defendant or the respondent. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of court for questioning a decision of the court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional defect. To do so is unwittingly to postpone the doom’s day. See Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt.199) 550, Ezomo v. Oyakhime (1985) 1 NWLR (Pt.2) 195, State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33, Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 57 and Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt.200) 659. PER GEORGE OLADEINDE SHOREMI, J.C.A.

PRELIMINARY OBJECTION: WHAT A PRELIMINARY OBJECTION TO THE HEARING OF AN APPEAL ENTAILS

COMPUTATION OF TIME: WHEN DOES TIME BEGIN TO RUN FOR THE PURPOSE OF DETERMINING WHETHER AN ACTION IS STATUTE BARRED OR NOT

No doubt time begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitled the plaintiff to succeed. In his argument as to sufficient material to be inferred from records he argued that the evidence by the returning officer is conclusiveness of the fact that the result of election was collated and declared on the 14th day of April, (1999) 5 NWLR (Pt.601) Page 32 at 44 per Salami JCA as he then was) which is quoted hereunder; “…….In determining whether an action is statute barred it is always pertinent to ask for when time began to run. In the case of Fadare v. Attorney-General Oyo State (1982) 4 SC 1, 1982 NSCC 52, 60, the Supreme Court referred to the case of Board of Trade v. Coyzer Irvine & Co. Ltd. (1927) A.C. where it was held that: ‘Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are materials to be proved to entitle the plaintiff to succeed. PER GEORGE OLADEINDE SHOREMI, J.C.A.

ELECTION PETITION: TIME FRAME FROM PRESENTING AN ELECTION PETITION

Section 141 deals with the issue of the temporal competence of the Petition. For the avoidance of doubt, section 141 of the Electoral Act provides: An election petition under this Act shall be presented within thirty (30) days from date the result of the election is declared. PER GEORGE OLADEINDE SHOREMI, J.C.A.

WRONG PROCEDURE: WHETHER WHERE A PARTY CONSENTED TO WRONG PROCEDURE AT THE TRIAL COURT AND IN FACT SUFFERS NO INJUSTICE , IT WOULD BE TOO LATE TO COMPLAIN ON APPEAL THAT A WRONG PROCEDURE WAS ADOPTED

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

Between

1. STEPHEN EHIKIOYA IDEHENRE
2. ACTION CONGRESS (AC) Appellant(s)

AND

1. EHIGIAMUSOE KINGSLEY OMIYI
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. RESIDENT ELECTORAL COMMISSION (INEC) EDO STATE
5. ELECTORAL OFFICER INEC IGUEBEN LOCAL GOVERNMENT AREA) Respondent(s)

GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the National Assembly/Governorship and House of Assembly Election Petition Tribunal delivered by Hon. Justice B. Orilonise (Chairman), Hon. Justice A.S. Tahir (Member), Hon. Justice P.N. Umeadi (Member), Hon. Justice Obanole Ogbuinya (Member) and Hon. Justice S.M. Anjori (Member).
The complaint from which this appeal arose can be seen from its facts as contained in the judgment of the Tribunal.
The 1st Petitioner, Stephen Ehikioya Idehenre, of the Action Congress (AC) has petitioned against the election and declaration of the 1st Respondent, Ehigiamusoe Kingsley Omiyi of the Peoples Democratic Party as the winner of the Edo State House of Assembly seat for Igueben Constituency. The election was held on 14th April, 2007. The election was conducted by the Independent National Electoral Commission (INEC) joined as the 3rd Respondent in this petition.
The result of the election announced by the 3rd Respondent indicated that the 1st petitioner scored 7797 votes while the 1st respondent scored 8353 votes and was declared as the winner of the election having scored majority of votes cast at the election. He was thus returned as the member elected into the Edo State House of Assembly for Igueben Constituency. The grounds for challenging the election are that it was marred by corrupt practices and non-compliance with the provisions of the Electoral Act, 2006 and was therefore invalid. That the 1st respondent who was sponsored by the P.D.P was duly elected by majority of lawful votes cast at the election.
The reliefs sought by the Petitioners are: an order to invalidate the 8853 votes or such part of them scored or allocated to the 1st and 2nd respondents by the 3rd, 4th and 5th respondents as may be found to be invalid in Igueben Constituency election held on 14th April, 2007 on grounds of corrupt practices or non-compliance with the provisions of the Electoral Act, 2006.
And to declare the 1st petitioner of the Action Congress as validly elected and returned as the winner of the Igueben Local Government Constituency election into the Edo state House of Assembly having scored the highest number of lawful votes of the total valid votes cast at the said election after deducting the invalid votes allegedly scored or allocated to the 1st and 2nd respondents.
At the end of the trial the Tribunal gave judgment found no merit in the petition and therefore dismissed the petition accordingly. The Appellant having been dissatisfied with the said judgment filed Notice and grounds of appeal on 4/2/2008.
The appeal however was fought on the amended notice and grounds of appeal dated 29/3/09 filed on 26/3/10. The said grounds and particulars are set out hereunder for ease of reference as there is a Preliminary Objection to the grounds.
GROUND ONE
The Learned Judges of the Tribunal erred in law when they held as they did that:
“We are of the view that allegation of malpractices, corrupt practices, over voting, falsification of the votes and allocation of fictitious votes at polling stations should be directed at and made specifically against presiding officers and not generally against wards as was the case in this petition”
PARTICULARS OF ERROR OF LAW
i) the Electoral Act, 2006 in the proviso to section 144(2) thereof expressly provided that ‘where such officer or person (Electoral Officer, Presiding Officer, Returning Officer), is shown to have acted as an agent of the commission, his non joinder as aforesaid will not on its own operate n void the petition if the commission is made a party.
ii) The Commission (Independent Notional Electoral Commission) was joined as a party in this petition and was infact the 3rd Respondent in the petition…
iii) The petitioners (Appellant) in paragraphs 10, 11 and 12 of their petition expressly and copiously pleaded and directed their complaint against the Presiding Officers of the Units and Wards und in the Units and Wards named against them.
GROUND TWO
The learned Judges of the Tribunal erred in law when they held as they did that:
“Again the complaint of the petitioners that the election of 14th April, 2007 was disrupted by Hon. Fredrick Ijekhuanmen and Kenneth Ihensicnkhien who paraded armed thugs who shot sporadically into the air to scare away voter, snatch ballot boxes and ballot paper were all criminal allegations punishable under the Electoral Act, 2006. They are offences which must be proved beyond reasonable doubt. To succeed in proving the allegation of thuggery, violence, electoral mal practices, the petitioner must establish that the corrupt practices or violence was expressly authorized by the first Respondent and that such malpractice substantially affected the result of the election See Oyegun v. Igbinedion (1992) 3 NWLR )Part 226) 717, Nnachi v. Ibom (2004) 16 NWLR (PART 900) 611 AND Ajadi v. Ajibola (2004) 16 NWLR (Part 898) 91.”
PARTICULARS OF ERROR OF LAW
i) Proof of election petition is by preponderance of evidence or balance of probabilities and not by proof beyond reasonable doubt
ii) Kenneth Ihensienkhien and other named PDP agents and members did not deny the accusations made against them anywhere.
iii) 1st and 2nd Respondents admitted or showed that they had agents and members who acted and worked for them during the election on 14/4/07.
GROUND THREE
Learned Judges of the Tribunal misdirected themselves in law and on the facts and thereby occasioned a miscarriage of justice of when they held as they did that:
“Unit 2 Ward 5 – No issues were joined in the petition on this unit as neither the petitioner nor the Respondent challenged the declared result of the election in this unit which was also not pleaded in the petition We therefore see no reason to disturb the result of the election in unit 1 (sic) of Ward 5 where P.D.P scored 724 votes, A.C. 85 and A.D, 1.”
PARTICULARS OF MISDIRECTION IN LAW:
i) Issues are deemed joined where one party denies or contests the case of an adversary on a point in controversy in the litigation as happened on the pleadings in this case.
ii) attention of court was directed to the issues joined on this unit 2 ward 5 in the final address of appellant at page 462 – 463 of the record of appeal, but the submission were apparently ignored in the judgment.
PARTICALARS OF MISDIRECTION ON THE FACTS:
iii) The result of word 5 was pleaded in paragraph 15 and also includes the total result of the 1st and 2nd Respondents pleaded in paragraph 49(1) of the petition
iv) Both parties stated in their pleadings that they would rely on the Unit Results contained in all the forms EC8A (1) of the Constituency.
v) The result of ward 5, Unit 2 EC8A(1) No. 023243 was before the Tribunal as Exhibit 64D and was clear on the fact of it that there was o clear of over-voting.
GROUND FOUR
The Learned Judges of the Tribunal erred in law when they failed or refused to consider and pronounced on the result of ward 7 Unit 3 in her judgment.
PARTICULARS OF ERROR OF LAW
i) the result of ward 7 was in issue and was pleaded in paragraph 40 and 41 of the of the petition
ii) the result of ward 7 unit 3 EC8A(1) No. 023230 was tendered and admitted in evidence by both parties admitted in evidence by both parties without any objection and was marked as Exhibit 64A.
iii) the voters Register of Ward 7 Unit 3, Exhibit 69, showed only 19 accredited voters whereas total votes of 254 were distributed between the Appellants and the 2nd Respondents
GROUND FIVE
The Learned Judges of the Tribunal erred in law and on the fact when they held that:
“Ward 9 Unit 2. The result sheet is Exhibit 20A Form EC8A (1) No. 023221, it shows that there are 1,231 registered voters. The figure 11 appears as the number of ballot papers issued to the unit. Three ballot papers were spoiled, three were rejected and the total votes cast were 1,097. There was evidence of accreditation of voters in the manual register of voters. The evidence of PW3 was that voting started in Unit 2 of ward 9 at 10.00 am and went on until 12.00 noon when Fredrick Ijekhuanmen and his armed thugs came to disrupt the voting and that as at that time about 600 out of 1, 240 registered voters had cast their vote. This piece of evidence belied the assertion of the petitioner that only 11 ballot papers were issued to that polling station. How can about 600 voters have voted with only 11 ballot papers? The evidence PW3 which is an admission against interest supports the explanation of PW3 that 11 booklets of ballot papers each contained 100 ballot papers were issued to her unit. Register of voters accredited so we will not disturb the result of the unit”.
PARTICULARS OF ERROR OF LAW
i) 1097 voters plus 3 spoiled ballot papers plus 3 rejected ballots would amounts to 1103 ballot papers. Even if taken that 11 in column 2 of Exhibits 20A (EC8A(1) No. 023221) is 1,100 ballot papers, when three spoiled ballot papers and 3 rejected ballot papers are deducted from 1100 ballot papers, there would be 1094 valid ballot papers left. But the overall scored produced from Ward 9 Unit 2 as contained in Exhibit 20A is 1097. There is still a clear case of over-voting.
ii) In Ward 9 Unit 3 the presiding Officer RW12 (Momoh Saturday) also gave “evidence against interest” when he said that 10 in column 2 of Exhibit 37 EC8A(1) No.023220 stood for 10 booklets (1000) and yet the Tribunal cancelled the result of ward 9 unit 3 where the Appellants scored 849 votes against votes of the 1st and 2nd respondents. The Tribunal approbated and reprobated.
iii) The tribunal held in the case of ward 9 unit 3 that 10 columns of Exhibit 37 simply means 10 ballot papers and held that in case of ward 9 unit 2, 11 means 11 ballot booklets to represent 1,100 ballot booklets to represent t 1,100 ballot papers thereby allowing the 1033 votes of the 1st and 2nd respondents. The tribunal again approbated and reprobated.
iv) The tribunal found as a fact that ‘three ballot papers were spoiled and three were rejected and the total votes cast was 1097″.
v) the evidence of PW3 that “less than” (not ‘about’ as stated in the judgment) six hundred people had voted before disruption of election in ward 9 units 2 was wrongly relied upon to hold that the election was valid.
vi) 3rd – 5th respondent’s tendered four voters register used for accreditation of voters in the unit, vide Exhibit 7 (electronic voters register in which 1191 voters were accredited).
vii) Three manual voters registers Exhibit 66,66A and 66B were also tendered whereby additional 500, 124 and 483 voters were also accredited for eth election in the polling unit, making a total 2233 accredited voters in the polling unit;
viii) The result declared from the ward 9 unit 2 was 1097, far more than the total number of voters admitted by appellant’s witness to have voted before the disruption.
ix) The evidence ascribed in the judgment to RW3 in reaching the decision is not borne out of the record.
x) The result for the unit, Exhibit 20A, showing that, 11 ballot papers were supplied, but total ballot papers used were 1103, while accredited voters were 2233 as against the total number of registered voters on the result as found by the tribunal being 1,231, are irregularities which are only consistent with the case of appellants that the election in the unit was disrupted and ought not to be canceled.
GROUND SIX
The learned Judges of the tribunal erred in law and misdirected themselves on the facts when they held that:
“Ward 10 Unit 7. The result sheet for this unit is Exhibit 18 form EC8A(1) 023213. The number of votes on the register is 800 out of which 215 were unused, 8 ballot papers were spoiled and 19 were rejected. The PDP scored 210 votes and AC scored 74 votes making a total of 284 valid votes cast. The spoiled ballots, plus rejected ballots and valid votes cast gives a total of 311. This is in order. We do not disturb the result of that Unit.”
PARTICULARS OF MISDIRECTION ON THE FACTS:
i) The result was upheld notwithstanding that the figure as to the number of ballot papers supplied to ward 10 and 7 as stated in column 2 of Exhibit 18F (EC8A(1) NO. 023213) was uncertain and unclear.
ii) Exhibit 22B (Ballot papers distribution) stated clearly and unambiguous that only 400 ballot papers were supplied to ward 10 unit 7 with the serial numbers 018927801 – 018928200 (totaling 400 ballot papers only).
iii) 215 unused ballot papers plus 8 spoiled ballot papers plus 19 rejected ballot papers equal 242 ballot papers and when subtracted from 400 supplied ballot papers, it will give a balance of 158 ballot papers, which cannot produce 284 total votes for the parties.
GROUND SEVEN
The learned Judges of the tribunal erred in law when they held that: “We find to merit in the petition, all eth reliefs sought have failed and petition is accordingly dismissed.” (page 19 of the judgment).
PARTICULARS OF ERROR OF LAW
i) the Appellants proved the reliefs they sought by documentary evidence produced before the tribunal by the
parties.
ii) the Appellants proved that the 1st and 2nd respondents did not score the majority of lawful votes.
ii) the Appellants proved that they had the majority of lawful votes after deducting the invalid votes from the total votes.
GROUND EIGHT
The learned Judges of the trial tribunal erred in law and thereby occasioned a miscarriage of justice which affected their decision to refuse the prayer for the return of appellant as duly elected in the election, when they canceled the unchallenged results of the election in ward 9 unit 3 where Appellant scored 989 votes as against 1st respondent who scored 94 by holding at page 16 of their judgment thus:-
“Ward 9 unit 3; here there are 1001 registered voters but only 10 ballot papers were issued to the unit 46 ballot papers were unused, 9 were spoiled and none was rejected. The number of valid votes cast for parties was 989. The P.D.P. scored votes and A scored 849 votes with only 10 ballot papers,. The result is ridiculous and is therefore cancelled.
PARTICULARS OF ERROR
i) The 1st and 2nd Respondents did not file notice of objection to the result in ward 9 unit 3, although they pleaded list of objection to results from other units in wards 6 and 8 only at paragraph 25 of their Reply to the petition.
ii) The score of appellant in the result of the election in ward 9 unit 3 was expressly pleaded and admitted as correct by 1st and 2nd respondent in paragraph 30 their reply to the petition.
iii) the total valid lawful votes adjudged scored by appellant in the judgment was 5,742 after deducting the unchallenged 849 votes cast for appellant in ward 9 unit 3 which was canceled in the judgment.
iv) had the votes in ward 9 unit 3 not been canceled although not contested in the petition, appellant would have scored 6591 votes.
GROUND NINE
The learned judges of the trial tribunal misdirected themselves in law and on the facts when, apart from wrongly canceling the unchallenged results in ward 9 unit 3 as highlighted in ground 8 (supra) they took into account the invalid votes returned for 1st respondent inward 9 unit 2 to determine that 1st respondent scored 6,703 votes in the election as against appellant’s reduced score of 5,742 to occlude that P.D.P (i.e. political party that sponsored 1st respondent scored “MAJORITY 961 VOTES” when:
i) the tribunal should have found for appellant on their relief that 1st respondent did not win the election with the votes declared by 3rd respondent to return or with any majority votes, and that, instead, appellant scored majority of lawful votes at the election as prayed for in reliefs (i) and (ii) of the appellants petition;
ii) it is “majority of lawful votes” only that the tribunal is enjoined to reckon with in determining who was the winner of the election being challenged in the petition before them under section 147(2) of the Electoral Act, 2006.
iii) By legitimate computation of majority of lawful votes, the result of ward 9 unit 2 votes cast (invalid an invalid) exceeded number of ballots supplied and 1st respondent was ascribed with 1,033 votes as against 64 votes ascribed to appellant were nvalid.
iv) The tribunal failed to discharge its judicial duty to have deducted the 1044 votes ascribed to 1st respondent in ward 9 unit 2 in the final computation to arrive at 5,670 votes in favour of 1st respondent; and also to have cancelled the 64 votes recorded for appellant in the said ward 9 unit 2;
v) The tribunal failed to discharge its judicial duty have added the wrongfully canceled votes in ward 9 unit 3 to the total score of appellant to arrive at 6591 votes (less 64 votes cancelable votes ascribed to appellant from ward 9 unit 2) to arrive at a net total of (6591-64) 6527.
vi) The appellants total lawful votes of 6527 exceeds the lawful votes of 5670 scored by 1st respondent by (6527 – 5670) 857 votes.
vii) the failure to properly and correctly compute the results misled the tribunal not to uphold the claim of appellant as the winner of the election, and has occasioned miscarriage of justice.
OMNIBUS GROUND
Judgment is against the weight of evidence
RELIEFS SOUGHT FROM THE COURT OF APPEAL
AN ORDER setting aside the decision of the lower Election Tribunal contained in the judgment delivered on 21st January, 2008.
AN ORDER invoking section 15 of the Court of Appeal Act, 2004 to declare Appellants as the winners of 14th April, 2007 Election into the Igube Constituency of the Edo State House of Assembly having scored majority of lawful valid votes cast at the election.
AN ORDER directing the 3rd – 5th Respondents to withdraw the certificate of Return issued to the 1st Respondent, and to issue the 1st appellant with a certificate of return for the said election.
In line with the practice of this court briefs were field by all parties. When the appeal came up for hearing on 21/10/10 Mr. Owonikoko of the learned counsel for the Appellants referred to his brief dated 20/3/09 filed same day. He also a filed a reply brief to the 1st and 2nd Respondents brief same day. He also filed a reply brief to the 1st and 2nd Respondents brief dated 22/6/10 filed a reply brief to the 3rd – 5th Respondents brief dated 22/6/10 filed a reply brief to the 3rd – 5th Respondents brief dated 3/6/09 filed on 11/6/09.
Imadegbelo SAN for the 1st – 2nd respondents referred to his amended brief of argument dated 18/6/10 filed same day. He referred to his Preliminary Objection dated 18/10/10 filed same day.
Omo-Osagie Esq for the 3rd – 5th Respondent referred to his brief dated 27/5/09 field same day. He also filed a Preliminary Objection dated 15/10/09 filed same day.
Imadegbelo SAN adopted and relied on his Preliminary Objection dated 18/10/10 filed same day on the ground that tappeal is incompetent and his argument is contained on his pages 5 – 33. He relied on the same and urge the court to dismiss the appeal on the ground of his objection.
Omo-Osagie Esq for the 3rd – 5th Respondents referred to his notice of objection dated 18/10/09 filed same day and contained in his notice of Objection dated 19/2/10 filed same day. He adopted same and that the appeal be struck out on the ground of his Preliminary Objection. He argued that a ground of appeal must be in conformity with the relevant rules of the court. He referred and stressed on the case of SOSANYA V. ONOLKU (2005) 2 SC 13 at 28.
Mr. Owonikoko for the Appellant submitted that his reply to the Preliminary Objection is contained in his reply brief to the 1st and 2nd Respondent. It is titled Amended Reply brief dated 22/6/10 at page 1 – 16. For the 3rd – 5th respondents his reply to the Preliminary Objection is contained in his Reply brief dated 8/6/09 on 11/6/09, he adopted same and argued that all the Preliminary Objections should be dismissed. He referred page 240 – 243 of the record.
He relied on the case of AMADSUN V. ATIVIE Appeal No. CA/B/EPT/61/08 unreported delivered on 30/4/09. He referred to page 15 of the record that it is evident that the result of the election was not declared on 14/4/07. He again urged the court to dismiss the Preliminary Objection. He further argued that the 1st and 2nd Respondents cannot object to the grounds of appeal as they ought to have come by way of Cross/Appeal or Respondent’s notice.
Imadegbelo SAN in replying argued that leave to argue fresh point on issue of jurisdiction was granted by the court. No need to file a cross/appeal. Refer to GALADIMA V. TAMBAI (2000) 11 NWLR PT.677 at 15, 16; ADESANYA V. OTUEWMI 1993 1 NWLR Pt.270 at 414; OKPAGU V. NNPC 1998 4 NWLR Pt.115 page 296 at 309. He also argued that the notice of declaration cannot be faulted per Exhibit 60 and that result was not declared on 14/4/07.
Omo-Osagie Esq. He adopted the submission of the learned counsel to the 1st and 2nd Respondents and that issues were never joined as to the time of declaration of Result.
I have earlier set out the grounds of appeal as propounded by the appellant I will now set out the objection and argument thereon 1st and 2nd Respondents Preliminary Objection are stated hereunder:
i. The petition is statute barred in that the result of the election for Igueben Constituency, House of Assembly Election was declared on the 14th day of April, 2007 and the Petition was filed on 14th day of May 2007 i.e. the 31st day, in breach of section 141 of the Electoral Act, 2006.
ii. An order dismissing the petition as abandoned pursuant to paragraph 3(1), (2), (3), (4) and (5) of the Election Tribunal and Court Practice Directions, 2007 for failure of the Petitioners to file an application for pre-hearing Notice (as provided in Form TF007) a mandatory condition precedent before the Tribunal can proceed to entertain any Election Petition or matters relating thereto.
iii. An order dismissing the Petition as incompetent since the Tribunal suo motu conduct or caused a pre-hearing session to be held contrary to paragraphs 3(1), (2), (3), (4) and (5) of the Election Tribunal and Court Practice Directions, 2007 i.e. without an application for the issuance of Forms TF007 and TF008 a condition precedent before the Tribunal can proceed to entertain any Election Petition.
On this issue he relied on Section 141 of the Electoral Act 2006 which provides that an election petition shall be filed within 30 days from the date the result of the election is declared.
Let me say here that I agree with the learned counsel to the 1st and 2nd Respondents that issue of jurisdiction can be raised at any stage of the proceedings before judgment in any form and by any means. Once it is raised it cannot be glossed over. See GALADIMA V. TAMBAI (2000) 11 NWLR (Pt.677) page 15 at 16. I therefore repeat the part of authority cited with which I agree i.e. GALADIMA V. TAMBAI (2000) 11 NWLR (Pt.677) page 15 at 16 as per ACHIKE JSC:
“……. Appellant’s learned counsel, Mr. J.B. Daudu, SAN, while appearing not to have questioned the belated raising of the issue of jurisdiction, nevertheless he forcefully submitted it was erroneous for the respondents to have raised the issue of jurisdiction by way of preliminary objection rather than by filing a cross-appeal or filing a respondents’ notice. To counsel in his submission, an appeal cannot be summarily disposed of by a preliminary objection except by either of the other two modes urged by him. Counsel strongly relied on Orji v. Zaria Industries Ltd. (1992) 1 NQLE (Pt.216) 124. On the contrary, Mr. J. Abbas-Ibrahim, learned respondents’ counsel, with no less force submitted that since the matter in controversy related to the jurisdiction of the trial court it could be properly and rightly raised at any stage of trial and even by way of a preliminary objection…….
Time never runs against a court to decide on the issue of jurisdiction. The consequence of a court continuing a case where it lacks jurisdiction is, as it were, like the court embarking on a frolic which would indisputably result in a nullity for which an appellate court, so invited, would have no compuntion whatsoever to declare null and void. Jurisdictional question, be it in criminal or civil matter, has this same devastating consequence. An attack or question as to jurisdiction cannot be properly glossed over by any court once it is raised by the defendant or the respondent. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of court for questioning a decision of the court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional defect. To do so is unwittingly to postpone the doom’s day. See Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt.199) 550, Ezomo v. Oyakhime (1985) 1 NWLR (Pt.2) 195, State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33, Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 57 and Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt.200) 659.

A preliminary objection to the hearing of an appeal is a special procedure whereby a respondent may contend the competence of the appeal which, if upheld, has the effect of striking out the appeal. Such is the intendment of Order 2 Rule 9(1) of the Supreme Court Rules (as amended in 1999).
Be that as it may, it seems quite clear that a challenge to the court’s jurisdiction is, as earlier noted, pivotally fundamental and can pass as sui generic in terms of the procedure adopted to raise it. In the instant case, the trial court’s jurisdiction was raised at the Court of Appeal rather irregularity by a preliminary objection. The Court of Appeal appreciating the enormity of the jurisdictional issues raised and did not allow it to be treated with such levity……..”
No doubt time begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitled the plaintiff to succeed. In his argument as to sufficient material to be inferred from records he argued that the evidence by the returning officer is conclusiveness of the fact that the result of election was collated and declared on the 14th day of April, (1999) 5 NWLR (Pt.601) Page 32 at 44 per Salami JCA as he then was) which is quoted hereunder;
“…….In determining whether an action is statute barred it is always pertinent to ask for when time began to run. In the case of Fadare v. Attorney-General Oyo State (1982) 4 SC 1, 1982 NSCC 52, 60, the Supreme Court referred to the case of Board of Trade v. Coyzer Irvine & Co. Ltd. (1927) A.C. where it was held that:
‘Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are materials to be proved to entitle the plaintiff to succeed.’
The time therefore began to run in this case on 7th December, 1998 when Exhibit 1 or R1 was issued declaring the first respondent ‘as being the winner of the election.” The time to sue was up on that day because from that day the Petitioners could present their petition against the respondents and all the material facts required by then to prove their case had happened. Since the appellants had only 14 days from the return date to present their petition by virtue of Section 82 of Decree 36 of 1998, the petition must be presented any day between 7th December, 1998 and 21st December, 1998 otherwise they are out. The petition presented on 22nd December, 1998 is time or statute barred. The only issue calling for determination in this appeal having been resolved against the appellant the appeal fails and it is dismissed…….”
He also relied on CHIBUEZE V. IBEDIRO (1999) 3 NWLR (Part 594) page 206 at page 213; EKEKUOGBO V. FIBERESIMA (1994) 3 NWLR (Part 335) page 707. He also argued on the fit that principle of interpretation. He relied on ODENIGWE OKWU (1981) 2 P.L.R. 685 and a host of other authorities including COLAKOGUN TUNDE (RTD) V. ANNENA ELEZABETH JEMITOLA & ORS. CA/B/EPT/137/08; CA/B/EPT/156/08; CA/B/EPT/186/08 (unreported judgment of the Court of Appeal, Benin Division delivered on 20/5/09.
On Objection No. 2: He cited paragraphs 3(1), (3), (4) and (5) of the Election Petition and Court Practice Direction 2007. He argued that there is no where on record to show that a motion for preliminary session as in Form TF007 was ever filed. He argued that the court cannot speculate on its existence. He relied on-
(i) SOMMER V. F.H.A. (1992) 1 NWLR (Part 219) page 548 (ii) OGOLO V. FUBURA (2003) 11 NWLR (Part 831) page 231; (iii) OLUFEAGBA V. ABDUL RAHEEM (2009) 18 NWLR (Part 1173) page 384. (iv) OSSAI V. WAKWAH (2006) 4 NWLR (Part 969 page 208 and (v) OKEREKE V. YAR’ADUA (2008) 12 NWLR (Part 1100) page 95
It is argued that parties cannot by acquiescence confer jurisdiction on the tribunal relying on OKOLO V. UBN (2004) 3 NWLR (Pt.859) 87. He urged the court to dismiss the appeal on these two grounds.
In his reply to arguments on the preliminary objection of the 1st and 2nd Respondents. Mr. Owonikoko agreed that Exhibit (60) EC8E1 was declared vide form EC8E1 to the purported winner. The Respondents conceded that the petition was filed on 14/5/07. He argued that if there was any defect as early as June 2007 which the 1st and 2nd Respondents were earlier aware of it was to be raised as early as that date. He said the Respondents ignored it and waived the fact that the petition was filed on 14/5/07 despite the declaration of result of 14/4/07, he argued that they took steps on various dates till the judgment was delivered. He referred to UDFU V. KRAUS AND ARIORI V. ELEMO (1983) 1 SC 13 where Eso JSC has this to say I quote.
‘Waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in any system of court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit is fully aware of his right to the benefit or benefits but he either neglects to exercise his right to the benefit or where he has a choice of two, he decides to take one but not both. The exercise has to be a voluntary act. There is no doubt that a man who is not under any legal disability should be the best judge of his own interest. If therefore having full knowledge of the rights, interests profits or benefits conferred upon or accruing to him by and under the law but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights or that he has suffered by not having exercised his rights. He should be held to have waived those rights. He is to put it in another way estopped from raising the issue.”
He further relied on ISOLA V. UBN NIG. LTD. (2005) 17 WRN 1 AT 17 – 18 which I quote again.
The court can only use a document properly admitted before it for the purpose for which it was admitted. It is not open to the court to use the document other than for the purposes not intended by the parties as pleaded unless the attention of the court is drawn by any of the parties before it to do so. And even in that case, the court must invite all the parties before it to address it on the point before making a decision on it. This, in my view is the only legitimate use of the document admitted in evidence in court.
He submitted that Section 141 of the Electoral Act does not deal with issue of the jurisdiction of the Election Tribunal. Section 141 deals with the issue of the temporal competence of the Petition. For the avoidance of doubt, section 141 of the Electoral Act provides:
An election petition under this Act shall be presented within thirty (30) days from date the result of the election is declared. The Respondents are raising the issues of the competence of the petition now for the first time ever in their Brief filed on 26/5/09 First Schedule to the Electoral Act, 2006; Bichi v. Haladu (2003) 52 WRN 48 at 76 lines 30 – 35:
“Applying the literal or golden rule of interpretation to paragraph 49(2) of the first schedule to the Electoral Act, 2002 and relying on the decision of the Supreme Court of Nigeria on Odua’s case. I hold that the 1st and 2nd respondents have taken steps in the proceedings consequently waived their right. I therefore agree that at that stage the tribunal ought not to have entertained the objection. I therefore resolve issue No. 1 in favour of the appellant against respondents.
He further submitted that the Respondents having failed to raise the issue of the competence of the petition at the lower tribunal timeously and at all, they cannot now raise it in this Appeal for the first time without the prior leave of this Honourable court first sought and obtained. This, the respondents have failed to do. Therefore, the objection is in itself incompetent: See Ilobi v. Uzoegwu (2004) 19 WRN 93 at 121 lines 40 – 45:
“…. The said issue was not raised before the lower tribunal; same cannot also be raised or relied upon in this court without the leave of court. The authorities of Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263; (1988) SC 151, Agbaka v. Amadi (1988) 11 NWLR (Pt.572) 16 and Iweka v. SCOA (Nig.) Ltd. (2000) 15 WRN 106; (2000) 7 NWLR (Pt.664) 325 at 338 are relevant and in point.”
It is crystal clear from the provisions of section 141 of the Electoral Act, 2006, that it does not in any way relate to the jurisdiction of the tribunal but to the time within which an Election Petition is to be filed. Thus, if an election petition is not filed within the prescribed time under the Act, it is the petition that is not competent, not that the tribunal has no jurisdiction to determine electoral issues.
He submitted that the jurisdiction of the lower tribunal was vested in it by section 285(2) of the Constitution of the Federal Republic of Nigeria, 1999. It provides:
There shall be established in each State of the Federation one or more election tribunal to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.
Whilst section 141 of the Electoral Act 2006 relates to what has been described as procedural jurisdiction which can be waived; section 285(2) of the Constitution which established and vested jurisdiction in the tribunal relates to what has been described as substantive jurisdiction which cannot be waived; See Ndayakko v. Jikantoro (2004) 8 MJSC at 188 – 189 paragraphs D – C where the Supreme Court identified two types of jurisdictions:
It is noteworthy that a distinction must be drawn between two types of jurisdictions viz- jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the court where the constitution or a statute or any provision of the common law may say that the court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the court e.g. where a writ had been served outside jurisdiction without leave: Re Orr v. Ewing (1882) 22 Ch. D 4456, 463: See Practice and Procedure of the Supreme Court; Court of Appeal and High Court of Nigeria by T. Akinola Aguda, 1980 Edition at Page 86 paragraph 7.03.

In the case of Noibi v. Fikolati (1987) 1 NWLR (Pt.52) 519 at 632, it was held that where a party consented to wrong procedure at the trial court and in fact suffers no injustice , it would be too late to complain on appeal that a wrong procedure was adopted. Thus, where an action was commenced by an irregular procedure and a Defendant did not complain but took active part therein, he cannot later be heard to complain and take advantage of the irregularity: See also Naser Management Services Ltd. v. B.N. Amaku Transport Ltd. (1999) 1 NWLR (Pt.588) 576 at 588.
Besides, the complaints in regard to the first two questions relate to matters of practice and procedure not amounting to a breach of natural justice, which ought to have been taken up timeously at the court of first instance. By raising them belatedly at the Appellate court, the Appellants are deemed to have waived their rights.
In the case of Akande v. Ajani (1989) 3 NWLR (Pt.111) 511 at 545, this court, per Nnaemeka-Agu, JSC observed as follows:-
“Now, by a long line of decided cases, this court as well as the Court of Appeal has reiterated the fact that pursuant to the principle that it will always lean in favour of doing substantial justice in a case rather than hanging on technicality, it will not re-open a procedural irregularity that has been waived at the instance of a partly who could have raised the point timeously. This principle was recently re-affirmed by this court in the case of Nneji & Ors. v. Chukwu 7 Ors. (1988) 6 SCNJ 132 at pages 138 – 140 per Wali, JSC.” He argued that S.141 did not say that the provision cannot be waived. He argued that having regard to the circumstances of the election which necessitated the collation of election results from Units in a ward into Form EC8A and Form EC8A to EC8B – C at the Local Government Collation Centre before final entry into EC8E and having regard to the circumstances of election in Nigeria coupled with Electricity and transportation Problem on election day, the possibility that final result of the election cannot be declared the same day the election was held cannot be ruled out. Referred to section 125 of the Evidence Act. He further argued and concluded thus: I quote.
“We submit that it is practically impossible for an election that ought to end at 3p.m but which did not commence until about 11 a.m and ended at about 6 p.m in most units for the results to be received and entered into the various Forms between 6 p.m. to 12 midnight on 14/4/07 having regard to the conditions of working, including the conduct of elections, in Nigeria. We submit that unless the respondents can prove that all the processes of receipt of election results and filling them into the various prescribed Forms were carried out between 6 p.m. and 12 midnight on 14/4/07, the date of 14/4/07 on Form EC8E1 is already rebutted by Forms EC8A, EC8B, EC8C and EC8E1, all hearing the same date of 14/4/07; See Section 125 of the Evidence Act: Awojugbade Light Industries Ltd. v. Chinukwe (1993) 1 NWLR (Pt.270) 485 at 505; Clarke v. Roche (1877) 3 Q.B.D. 170; Atlas (Nigeria) Ltd. v. Steve Rhodes (1961) All NLR 348, supra.
Thus, such circumstances ought to be taken into account in attaching weight to the date Form EC8E bears, See Section 125 of the Evidence Act where it was enacted that circumstances surrounding the document ought to be taken into account if the circumstances are such that collusion as to the date might be practiced, and would, if practiced, injure any person, or defeat the objects of any law.
In Rev. Moses a. Abiegbe and Ors. v. Edheremu Ugbodume and Ors. (1973) 1 SC 133 at 148 – 149, the Supreme Court of Nigeria said that:
It is, however, necessary to point out that in deciding to exercise such discretion, local conditions should always be taken into consideration. It has been pointed out quite often that decisions in English courts applying some principles of law or practice to circumstances obtaining in that country, are not necessary guidelines to the application of such principles to local conditions, situations or circumstances. It requires to be emphasized that whilst English decisions can be of considerable help in the examination and application of many principles of law, the determination of the meaning and effect of primary facts as affected by such principles depends absolutely on the given situation or circumstances existing in this country. It is tempting, and sometimes attractive, to adopt descriptive words as ‘inordinate’, ‘inexcusable’ or ‘unreasonable’ as characterizing some facts peculiar to cases here in Nigeria, in order to make applicable English decisions in which those words have been used. What is inordinate delay in England may not be exactly so in Nigeria”.
This court have decided on many occasions as cited by the Respondent. I have carefully considered the submission of learned counsel to the 1st and 2nd Respondents on this preliminary objection I found their submission very useful hence it puts me in a better state to look into the record and deduce what the justice of the case demands.
It is trite law in this country that election matters are in a class of their own (sui generic) Adjudication in election matters would normally resolve around documentary evidence in most cases. Let me deal with objection No. 2 based on paragraph (3)(4) and 5 of the Election Petition and Court Practice Direction 2007 on the ground that there was no pre-hearing notice based on the authority of OKEREKE V. YAR’ADUA (2008) 12 NWLR (Pt.1100) pages 95.
I agree with that judgment and I say there is not other way to it, but I do not agree with the 1st and 2nd Respondents that there was no pre-hearing at the tribunal. One wonders why the tribunal without pre-hearing at the tribunal. One wonders why the tribunal without pre-hearing proceeded with the hearing of the petition. The counsel to the 1st & 2nd Respondents in my view did not avert their mind to the following which I gathered from the record.
At page 42 of Record in the Final Address is issue of pre-hearing session was evident when it reads I quote-
“No specific issues were formulated at the end of pre-hearing session”.
This is a strong presumption that there was a notice pre-hearing session and it indeed took place. At page 225 of the record there is what is called pre-hearing information sheet dated 20/7/07 signed by the petitioners counsel and served on Respondents.
From the foregoing, I hold that the objection 1st & 2nd respondents on this issue is misconceived and it is dismissed.
On whether the petition was filed out of time or incompetent. All the submission of the learned counsel are in line with the authorities and this court had on many occasion had come to conclusion that any petition filed outside the prescribed time is incompetent. See AKINYUGA V. BAKARE CA/B/EPT/314/08 delivered 15/12/09 (unreported) OLAMIJI CA/B/EPT/187/08 delivered on 14/12/09 (unreported and AJAYI & ORS. V. EBITONUYE CA/B/EPT/330/08 delivered on 19/5/09.
At the same time this court will not close its eyes to apparent contents of Record which shows or portrays otherwise.
Firstly, the issue of competence of the tribunal was raised by the 1st and 2nd Respondents and in a considered ruling delivered on 23/8/07 and in a similar application by the 3rd & 5th Respondents the issue competence of court was also raised and dismissed.
The ruling of the court is contained on pages 262 – 272 of the Record S.125 of Evidence Act provides I quote
1. When any document bearing a date has been proved, it is presumed to have been made on the day on which it bears date, and if more documents than one bear date on the same day, they are presumed to have been executed in the order necessary to effect the object for which they were executed, but independent proof of the correctness of the date will be required if the circumstances are such that collusion as to the date might be practiced, and would, if practiced, injure any person, or defeat the objects of any law.

2. Awojugbade Light Industries Ltd. v. Chinukwe (1993) 1 NWLR (Pt.270) 485 at 505;
“The presumption created by section 125 of Evidence Act is not a conclusive presumption. But it is a rebuttable presumption which applies only where collusion or fraud is suspected. Therefore, in the absence of evidence of fraud or collusion, the presumption must be made.
3. In Clarke v. Roche (1877) 3 Q.B.D. 170, it was held that the date borne by an instrument, may be different from the actual date of execution.
4. Atlas (Nigeria) Ltd. v. Steve Rhodes (1961) All NLR 348.
I called in aid this section when I looked at page 15 of the record where on issue as to when the result of this election was declared was joined and there is no where in the record where it was disputed. See page 15 of the Record paragraph 14 thereto where it was alleged that neither voting took place and neither was any result declared at any of the polling units in wards 6, 7, 8 Igueben Constituency on the election of 14/4/07.
In other words no result would have been declared before the 15/4/07 or hereinafter. This was never challenged in the record. From the forging I call in S.125 of the Evidence Act and the justice that this case demands; the objection is also misconceived and it is dismissed as the situation in this case is not similar to cases where this court had decided on S.141 of the Exhibit Act 2006.
The 3rd – 5th Respondents also filed a notice of objection dated 19/2/2010 filed on 11/2/10. The said listed on ground of objection are set out below:
1). Grounds 1 – 9 be struck out into that they do not comply with Order 6 of the Court of Appeal Rules 2007.
2) And for such further order or orders as this Honourable Court may deem fit to make in the circumstances of this Appeal.
AND TAKE FURTHER NOTICE that the Grounds on which this application is predicated are:
1) The particulars of error of grounds 1, 2 and 3 are irrelevant and unconnected to their grounds of appeal and are not borne out of the Record of Appeal.
2) The particulars of error of grounds 1, 2 and 3 are argumentative and narrative.
3) Ground 4 raises an issue which was never argued or canvassed at the trial of the petition.
4) Grounds 5 and 6 are argumentative, and did not create any factual controversy between the parties at the tribunal as issues were not joined on them and therefore, there is no issue derivable from grounds 5 and 6 on which this Honourable court can adjudicate thereof.
5) Ground 7 is argumentative, vague and too general in terms to constitute a valid ground of appeal.
6) Grounds 8 and 9 did not create any factual controversy between the parties at the trial on which this Honourable court can adjudicate as the Appellants themselves had indeed invited the tribunal to cancel the result complained against.
When the case came up for hearing Omo Osagie Esq for the 3rd – 5th Respondents argued his objection at pages 2 – 24 of his brief. In my treating the argument of objection of the 1st & 2nd Respondents. His argument on Preliminary Objection no. 1 contained on pages 3 – 8. Paragraph 1. I had been taken care of. It therefore for the reasons I gave above liable to be dismissed and it is therefore dismissed.
In his arguments Grounds 1 & 2 of the notice of appeal he argued that they offend Order 6 Rules 2, 3 and 4 of the Court of Appeal Rules 2007. He argued in the same vein that Ground 1-9 of the Appellants Notice of Appeal run fowl of the said Order. He said there is a total disconnect between the purport of the tribunal finding and the particulars of the error stated. He relied on DALAMI V. DANBO (2004) 45 WRN 96.
On Ground 2 he said the ground does not challenge the ratio decidendi of the lower tribunal. He relied on SAAKI V. KOLAYO (1992) 19 NWLR (Pt.126) 166. For that reason he said Ground 2 is incompetent.
On Ground 3 he argued that the particulars attached to the said grounds of appeal do not flow from the said ground.
On ground 4 he said further that the result of ward 7 and 3 was never made an issue by the appellant at the trial.
On Grounds 5 & 6 he argued that they are argumentative and narrative and the particulars attach to them derive from matters outside those relating to the decision. They are therefore incompetent he said. He relied on KHALI V. MUSA YAR’ADUA (2003) 16 NWLR (Pt.847) 446; OJE V. EDE (1995) 3 NWLR (Pt.385) 564; CBN V. OKOJIE (2002) NWLR (Pt.768) 48.
On Ground 7 he argued that it is vague and in general terms and does not disclose any reasonable grounds of appeal. Referred to LAKE V. LAKE (1955) 2 ALL ER 538 and a list of other authorities.
On grounds 8 & 9 he argued that they did not create any factual controversy between the parties at the trial which this court can adjudicate. Upon as the Appellant themselves even invited the tribunal to cancel the result of ward 9 unit 3 amongst other units.
He urged the court to strike out the accompany issues 1 & 2 of the Appellants brief which were formulated from the above grounds.
In answer to their objection the Appellants in their Appellants Reply brief to the 3rd – 5th Respondents brief of argument at page 6 – 40. He argued that the 3rd – 5th Respondents brief dated 27th May, 2009 is incurably defective and ought to be struck out in limine he argued.
That objection to the said brief is premised on ORDER 9 RULES 1, 2 AND 3; ORDER 17 RULE 3 & 4 AND ORDER 19 RULE 5(1) OF THE COURT OF APPEAL RULES, 2007. It is predicated on three grounds to win-
1. The 3rd – 5th respondents’ objection to the appeal on ground of want of jurisdiction was not based on any defect in the appeal; but on the petition which was filed at the lower court having been filed out of time – a fresh issue which was never raised at the tribunal and for which leave of court is required to raise and appeal either by way of respondents notice or by cross-appeal.
2. The arguments of 3rd – 5th respondents’ objection to grounds 1 – 9 of the Appellants’ Amended Notice of Appeal as preliminary points relate to the merit of the appeal.
3. The six issues for determination formulated and argued in the Respondents’ brief are not distilled from or tied to any particular ground of appeal.
I have earlier decided on (1) above I therefore need not repeat any argument on that aspect of the objection as it has been dealt with. I appreciate the effort of the learned counsel to the appellant in trying to persuade this court to change to its mind on S.141 of the Electoral Act 2006. Let me say it here and now that all the decisions of this court based on S.141 of Electoral Act remains the authority until when the Apex court would have the opportunity either to affirm or set them aside.
On preliminary objection No. 2. The Appellant invited this court attention to the fact the same notice of grounds of appeal which the respondents are challenging as incompetent has been argued in respondent brief on the merit for more than 50 pages of their brief. He argued that the argument put forward by the 3 – 5 Respondents should be treated as hair splitting. He said the apex court has decided that the duty of the court is to do justice rather than technicalities. He relied on ADEROUNMU V. OLOWU (2006) 4 NWLR Pt.652 SC 253 AT 265. He said that even where a ground is defective for being prolix, inelegant and narrative as canvassed by the 3 – 5 Respondents they can be excused once they pass the test in ADEROUNMU’s case. He also relied on AIGBOLA V. AIFUWA (2006) 6 NWLR (Pt.976) SC 270; APC LTD. V. NDIC (NUB LTD) (2006) 15 NWLR 1002 SC at 404.
On Grounds 1 & 2. The Appellant replied that the attack is untenable.
On Ground 3. He argued that the ground is one of mixed law and fact. Here the Appellant proceeded to create two sets of particulars misdirection as to law and as fact.
On Ground 4. He said the Respondent did not argue about competence but argueability of the ground. It is not true that the issue of ward 7 units 3 are canvassed at tribunal. Referred to pages 487 – 490 of the Record.
On Grounds 5 & 6. He referred to his argument based on Aderounmu case supra. He said infraction should be ignored.
On Ground 7. He argued that the ground is against specific finding of the tribunal that the entire petition has no merit and dismissed same relied on CBN V. OKOJIO supra.
On Ground 8 & 9. He argued that the objection of the Respondent is based on the meaning of the ground.
He finally submitted that on the whole the objection to each and all of the ground of appeal are lacking in merit.
It is trite law that for a ground of appeal to be valid it must:
(a) State the particulars of error or misdirection in law See ONIFADE V. OLAYIWOLA (1990) 21 NSCC Pt.3 at 421 N.B.N. Nig. Ltd. v. Opula (1994) 1 NWLR Pt.319 at 126;
(b) Be concise distinctly headed, numbered consecutively and not to contain argument or narrative. See AYINLA V. ADIGUN (1986) 1 CA Pt.2 131.
(c) Not to be vague and in general terms CBN V. OKOIE (2002) 8 NWLR Pt. 768 at 48;
(d) The omnibus ground is the only vague ground permissible. It is therefore on exception to the RULE
See ENANG V. ADU (1981) 11 – 12 SC 25.
(e) Relate to the decision Appealed against. See OGUNDELE V. OGUNLOWO (1997) 6 NWLR Pt.509 at 360.
(f) Not be hypothetic speculative or academic GOVERNOR OF KADUNA STATE V. DADA (1986) 9 SC 11.
(g) He against the orders of the trial Judge and not against the reasons the trial judge gave in making the order LAKE v. LAKE (1955) 2 ALL E.R. 538.
(h) Challenge the Ratio Decided SARAKI V. KOTOYE (1992) 3 NSCC 331.
I have herein before set out the grounds of appeal with their particulars. Therefore there is not doubt that they have been scrutinized with a view to seeing whether or not they would pass the test of acceptability.
In OLOWOSAYO V. ADEBAYO (1988) 4 NWLR (Pt.88) 275 the Supreme Court observed that the grounds of appeal must necessarily allege the complaint of errors of law, fact or mixed law and fact against the judgment appealed against.
However the grounds of appeal and their particulars cannot adequately be substituted for the contents of Appellants brief of argument. Any ground of appeal must be set out concisely precisely, succinctly and accurately to cover or embrace all the complaint the appellant has against the judgment. The reason for this is simple. It is to give adequate notice to the other side of the case they have to meet in the appellate court. See N.L.P.C. V. THOMPSON OGUNBA 1961 1 All NLR 138.
In ORJI V. DORJI ILE MILLS & Ors. (2009) 12 SC Pt.3 page 73. The Supreme Court stated that while the purpose of Grounds of appeal is to give to the other side notice of the case it has to meet in the appellate court, that particulars of the error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. There are the specification of the error or misdirection in order to make clear how the complaint is going to be canvassed in an attempt to demonstrate the flow in a relevant aspect of the judgment. See also OLUFEAGBA V. PROFESSOR SULAR OBA (2009) Part 1112 SC 1. In ADEROUNMU V. OLOWU (2006) 4 NWLR PT.652 SC 253 at 265 – 266 Per Ayoola JSC I quote-
“…..What is important in a ground of appeal, and the test the court should apply, is whether or not the impugned ground shows clearly what is complained of .. in my view, only general propositions can be made in a matter in which the question is not as to form. It must be realized and emphasized that ultimately, an unobjectionable ground incompetence of a ground of appeal, in the con of the question raised in this appeal, is to sought in its lack of preciseness or specificity in, or the ambiguity of, what it complains about. In this wise, it is not a question of formal defect but of the ground not satisfying the requirements of preciseness and specificity set by the rules of appellate procedure. Ultimately, it is for the court before which the question is raised to decide, whether, viewed objectively the ground satisfies the requirement of preciseness and clarity… What makes a ground incompetent is not whether it is framed as an error and misdirection but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of Appellants actually is.”
In his contribution to the judgment, Ogundare JSC said inter alia:
“These provisions spell out what are required of a ground of appeal end the purpose is to ensure that the respondent is not taken by surprise. Once therefore, a ground a appeal clearly states what the Appellant is complaining about and there is compliance with the rules, I cannot describe such a ground as bad and therefore incompetent. The dictum of Nnaemeka-Agu JSC in NWADIKE V. IBEKWE (supra) did not go as far as some of their Lordships of the Court of Appeal made it to look. The learned justice of the Supreme Court advised against lumping together in a ground of appeal complaints that ought better to have been split into different grounds of appeal. I commend his wise counsel to all legal practitioners engaged in drafting notices of appeal. I do not think, however, that non-adherence to this wise counsel will necessarily render incompetent any ground of appeal that otherwise complies with the requirements of the rules.”
I have carefully considered all the 1 – 9 grounds of appeal together with their particulars and lay out and all the arguments of the parties. I must say that the objection raised by the learned counsel to the 3rd – 5th Respondents is not frivolous due to the inelegant way some of the grounds were drafted but at the same time I do not see enough reasons while the objection should not be dismissed having regards to the authorities I have considered along. The objections is equally dismissed.
MAIN APPEAL
Owonikoko Esq adopted his brief dated 20/3/09 filed on 23/3/09 also Reply brief dated 22/6/10 filed same day in respect of 1st & 2nd Respondent.
To the 3rd & 5th Respondents he adopted his Reply brief dated 8/6/09 filed on 11/6/09. He relied on them and seems to amend issue to be determined by telling the court that at page 4 of the brief i.e. the computation of valid votes will determine the appeal.
Imadegbelo SAN for the 1st & 2nd Respondents adopted and relied on his brief dated and file on 18/6/10. He urged the court to dismiss the appeal and affirm the computation as done by the tribunal.
Omo-Osagie Esq adopted and relied on the 3rd – 5th Respondents brief dated and filed on 27/5/09 and urged the court to dismiss the appeal.
The Appellant in their brief distilled 6 issues for determination as follows:-
3.01 ISSUE (1) ONE
WHETHER IT WAS OPEN TO THE TRIAL TRIBUNAL TO CANCEL THE UNCHALLENGED RESULT OF THE ELECTION IN RESPECT OF WARD 9 UNIT 3 WON BY APPELLANTS WHEN RESPONDENT CONCEDED THE RESULT AND FILED NO OBJECTION TO SAME AT THE TRIAL.
GROUND 8
3.02 ISSUE (2) TWO
WHETHER THE PROPER ORDER TO MAKE IN THE FACE OF THE EVIDENCE LED IN THIS CASE WAS NOT ONE UPHOLDING THE CLAIM OF APPELLANTS AS HAVING WON MAJORITY OF LAWFUL VOTES IN THE ELECTION; INSTEAD OF DISMISSING THE PETITION.
GROUNDS 7, 9 AND 10.

3.03 ISSUE (3) THREE
GIVING REGARD TO THE PLEADINGS IN THIS CASE AND COUPLED WITH THE PRESENT STATE OF OUR ELECTORAL ACT, 2006 WHETHER THE NON-JOINDER OF POLLING OFFICERS AS PARTIES IN THIS CASE IS OF ANY CONSEQUENCE ON THE COMPETENCE OR SUCCESS OF THE PETITION.
GROUND 1
3.03 ISSUE (4) FOUR
WHETHER THE PETITIONERS’ ALLEGATION THAT THE ACTS OF SOME OF TE RESPONDENTS’ AGENTS AFFECTED THE RESULTS OF THE ELECTION REQUIRED PROOF BEYOND REASONABLE DOUBT?
3.04 ISSUE (5) FIVE
WHETHER THE JUDGMENT OF THE TRIBUNAL CAN BE SAID TO BE A TRUE EVALUATION OF THE FACTS AND DETERMINATION OF THE ISSUES PRESENTED BY THE PARTIES WHEN IT FAILED TO CONSIDER AND PRONOUNCE ON THE INVALIDITY OF THE RESULTS OF UNIT 2 WARD 5, AND WARD 7, WHEN THESE RESULTS WOULD HAVE HAD A DECISIVE EFFECT ON ITS DECISIONS?
GROUDNS 3 & 4
3.05 ISSUE (6) SIX
WHETHER THE TRIBUNAL WAS RIGHT NOT TO HAVE CANCELLED THE ELECTION RESULTS IN WARD WHERE THERE WAS PROOF OF OVER VOTING. GROUNDS 5 & 6.
The 1st & 2nd Respondents on their own distilled 4 issue for determination as follows:-
1. WHETHER THE TRIBUNAL WAS RIGHT IN CANCELLING THE RESULTS IN WARD 9 UNIT 3 AND UPHOLDING THE RESULT IN WARD 9 UNIT 2 (GROUNDS 5, 8 AND 9).
2. WHETHER THE TRIBUNAL WAS RIGHT IN REFUSING TO CANCEL THE RESULTS OF WARD 5 UNIT 2, WARD 7 UNIT 3 AND WARD 10 UNIT 7 (GROUNDS 3, 4 AND 6).
3. WHETHER OR NOT THE TRIBUNAL WAS RIGHT IN HOLDING THAT TE PETITIONERS’ ALLEGATIONS IN THE PETITION FOR WARDS 1, 6, 7, 8, 9 AND 10 WERE GENERAL IN NATURE.(GROUND 1)
4. WHETHER OR NOT THE TRIBUNAL WAS RIGHT IN DISMISSING THE PETITION (GROUNDS 2, 7 AND 10).
The 3rd – 5th Respondents distilled 6 issues for determination as follows:
ISSUE NO. 1
Whether the Election Petition Tribunal was right to have cancelled the result of the election in Ward 9 Unit 3 on the ground of over-voting and upheld the result of the election in Ward 9 Unit. 2.
ISSUE NO. 2
Whether the Election Petition Tribunal’s observation that the petitioners had only made general allegations of elected malpractices in their petitions, and had not made allegations of malpractices against presiding officers of the polling units can be construed to mean or imply that the tribunal held that the non-joinser of such presiding officers rendered the entire petition void.
ISSUE NO. 3
Whether the Appellants specifically pleaded and proved the facts of electoral malpractices in Unit 2 of Ward 5, Unit 3 Ward 7 and Unit 3 Ward 10, or joined issues of the alleged malpractices with the respondents in the pleadings and at the trial sufficient enough to compel the lower tribunal to cancel the results of the said Units.
ISSUE NO. 4
Whether or not the appellants needed to prove by credible evidence that there was a nexus between the electoral offences allegedly committed by Kenneth Ihensekhien, Fredrick Ijekhuamen and the candidate (the 1st Respondent) so as to saddle the 1st Respondent with the alleged unlawful acts, of theirs and it the answer is in the affirmative, whether the Appellants discharged the burden of proof placed on their in this regard.
ISSUE NO. 5
Whether the Appellants discharged the burden of proof of the allegations of thuggery, falsification of results, violence, corrupt practices and other Electoral vices and malpractices in the election.
ISSUE NO. 6
Whether the lower tribunal was right not to have cancelled election results in Wards and Units where the Appellants alleged that there was over-voting.
It is of note that the 3rd – 5th Respondents did not marry any of issues formulated to any ground of appeal. In any event he did not cross appeal.
Issues not attached to grounds are bad. Having said so much and having agreed that the main contention as agreed to by parties is the computation of what are the lawful votes to be ascribed to the 1st Appellant and the 1st Respondent I believe that when this is done it will decide the merit or demerit of the appeal.
It has been decided in many cases that the Court of Appeal has the power to adopt or even formulate issues that in its view would determine the real grievance in the appeal. See ADUKU V. ADEJOH (1994) 5 NWLR (Pt.346) 582; MAIYEGUN V. THE GOVERNOR OF LAGOS STATE (2010) All FWLR Part (542) 1794 at 1715 para E. In any view the correct computation will decide this appeal.
Let me at this stage refer to the voting procedure as shown in Exhibit 24 steps 1 – 5 which are the preliminaries of voting in an election. Particularly issuing Ballot papers and voting.
Voting shall be by Open Secret Ballot
The voter shall present himself/herself to the Presiding Officer as directed by the Polling Assistant.
The Presiding Officer shall:
Step 1: On seeing the voter’s card and the indelible ink stain on the voter’s thumb or finger nail, prepare the ballot paper(s) for each of the elections by stamping and signing the back of each ballot paper.
NOTE: Ballot papers must not be stamped and signed in advance
NOTICE ALSO: Failure to stamp and sign a ballot paper renders the ballot invalid.
In Exhibit 64F Ward I Units 1 & 2. Unit 2 & 8 ballots papers were said to have been issued and a total No. of 293 votes were cast. The tribunal at page 597 of the Record of appeal has this to say and I quote-
WARD UNIT 1: The only register of voters for Ward 1 Unit 1 Ekekhen Idunmu/Oza presented before us in Exhibit 69B which shows that there are a total of 69 voters in Unit 1 of Ward 1 of Igueben Local Government.
We agree that only 8 ballots papers were shown to have been supplied as per Exhibit 64E. Form EC8A(1) No. 15100 at this polling unit has 600 registered voters. The AC scored 22 votes and PDP 86 and ANPP 1. We are satisfied that neither the AC nor PDP could have scored the votes accredited to either of them with the 8 number of ballot supplied to the unit. The result of that unit in cancelled as this amounts to over-voting.
WARD 1 UNIT 2: For the same reasons as above we cancel the result of the election in Unit 2 of ward 1 in Igueben Local Government where only 8 ballot papers were supplied per Exhibit 64E, Result Sheet NO. EC81(i) 150999 and P.D.P. scored 215 votes while AC scored 78 votes”.
This can be compared with the evaluation of result sheets 20A for Ward 9 Unit 2 when on the exhibit 11 ballot papers were said to be issued. The tribunal in its evaluation of this exhibit has this to say and I quote again.
“WARD 9 UNIT 2: The result sheet is Exhibit 20A Form EC8A(i) 023221; it shows that there are 1,231 registered voters. The figure 11 appears as the number of ballot papers issued to the unit. Three ballot papers were spoiled, three were rejected and the total votes cast was 1,097. There was evidence of accreditation of voters in the manual register of voters. The evidence of P.W.3 was that voting started in Unit 2 of Ward 9 at 10:00am and went on unit 12:00 noon when? Fredrick Ijekhuanmen and his armed thugs came to disrupt the voting and that as at that time about 600 out of 1,240 registered votes had cast their votes. This piece of evidence belied the assertion of the petitioner that only 11 ballot papers were issued to that polling station. How can about 600 votes have voted with only 11 ballet papers? The evidence of P.W.3 which is an admission against interest supports the explanation of P.W.3 that 11 booklets of ballot papers each contained 100 ballot papers were issued to her unit. Register of voters were accredited so we will not disturb the result of this unit”.
However with respect to Ward 1, Unit 1 & 2, the lower court failed to understand or agree that 8 ballot papers each meant and issued for these units could only mean 8 bundles as it decided with respect to Ward 9 unit.
The result of Ward 9 Unit 2 was not interfered with by the lowe4 court upon its evaluation of the evidence in Exhibit 20A – Form EC8A(i) No. 023221 leading to the conclusion that 11 ballot papers paid to have been the ballot papers issued for the election could only mean 11 bundles of 100 ballot papers each of order to very effectively cover the number of registered voters on record.
From the above the tribunal was not consistent in the evaluation of exhibits referred to above. If the same consideration given to Exhibit 64E as equally given to Exhibit 20A.
For the reasons given by the lower court for the cancellation of the results for Ward 1 units 1 and 2 the results for Ward 9 unit 2 ought have been considered in the same vein.
It is settled law that once a trial court has made a finding of fact the Court of Appeal in appropriate cases could draw conclusions or make inferences from those facts which may differ from those of the trial court. See AKINOLA V. OLUWO (1962) 1 All NLR 224 at 227; ODOFIN V. AYOOLA (1984) 11 SC 72 at 106; BENMAX V. AUSTIN MOTOR CO. LTD. (1955) 1 All ER 326 (1955) A.C. 170. The result of ward 9 unit 2 ought to be cancelled and it is hereby cancelled. Having cancelled the result of Ward 9 Unit 2, the votes ascribed to parties ought to be deducted from the lawful votes. As found by the tribunal. Let me say here that apart form this particular Ward 9 Unit 2, the tribunal in my view rightly cancelled all that they cancelled.
Having cancelled the votes scored in Ward 9 unit 2 as shown in Exhibit 20A the votes ascribed to parties have to be deducted from the parties.
Exhibit 50 will now read AC 7948, PDP 8853 invalid votes will now be
AC     2016 + 64    =    2080
PDP     2340 + 1033    =    3373
Final result shall now read-
AC    7948    –    2080    =    5869
PDP    8853    –    3373    =    5480
From the above I hold that the appeal succeeds and the 1st Appellant is declared winner of the election held on 14/4/07 at the Igueben Constituency of Edo State House of Assembly. The judgment of the tribunal given on 21/1/08 is hereby set aside.
The Certificate of Return given to the 1st Respondent shall be withdrawn. The 3rd Respondent shall issue a Certificate of Return to the 1st Appellant without any further delay.
No order as to cost.

HON. JUSTICE AMIRU SANUSI, J.C.A: I had the advantage of reading before now the judgment of my learned brother Showrmi, J.C.A just rendered before now. All the salient issues canvassed by parties have been adequately addressed by His Lordship I am in entire agreement with his reasoning and occlusion that the appeal is meritorious. I as well, allow it and set aside the decision of the election tribunal delivered on 21/1/2008. I endorse the consequential orders made in the lead judgment including one on costs.

ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had the privilege of reading before now the led judgment of my learned brother Shoremi JCA. I agree with all the reasonings and conclusions.

Appearances

A.J. Owonikoko Esq;
E. Izebhigie EsqFor Appellant

AND

I.E. Imadegbelo SAN;
E. Imade Esq,
S.I. Abasilim Esq;
B.S. Oisamoje Mrs.,
F. Shaibu
Eki Omo-Osagie EsqFor Respondent