UDEME IBANGA UMOH & ANOR V. HON. ANIEKAN AKPAN & ORS
(2011)LCN/4819(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of October, 2011
CA/C/NAEA/212/2011
RATIO
JURISDICTION OF THE COURT: WHEN IS A COURT COMPETENT TO HAVE JURISDICTION TO HEAR AND DETERMINE A CASE
It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent, to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived of in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. See the following cases:- – Umanah v. Attah (2006) 17 NWLR (pt. 1009) 503 – Madukolu v. Nkemdilim (1962) 1 All NLR 587 – Skenconsult v. Ukey (1981) 1 SC 6 – Benin Rubber Producers Ltd v. Ojo (1997) 9 NWLR (pt. 521) 388 – Magaji v. Matari (2000) 5 SC 46 – Aloa v. African Continental Bank Ltd (2000) 6 SC (pt. 1) 27 – Galadima v. Tambai (2000) 6 SC (Part 1) 196 – Araka v. Ejeagwu (2000) 12 SC (pt. 1) 99 – Lufthansa Airlines v. Odiese (2006) 7 NWLR (pt. 978) 39. PER UZO I. NDUKWE-ANYANWU, J.C.A.
DOCUMENTARY EVIDENCE: WHETHER DOCUMENTARY EVIDENCE CAN BE ADDED TO OR SUBTRACTED FROM BY AN ORAL EVIDENCE
Documentary evidence cannot be added to or subtracted from by oral evidence. It is the hanger to hang oral evidence and used in testing the veracity of same. PER UZO I. NDUKWE-ANYANWU, J.C.A.
DECLARATION OF RESULT FORM: WHETHER THE DECLARATION OF RESULT FORM CAN NEITHER BE SUPPLEMENTED BY AN ORAL EVIDENCE NOR AFFIDAVIT EVIDENCE
…the Declaration of Result form is the authentic document which no oral evidence nor affidavit evidence can supplement. The Declaration of Result form is the official INEC form for declaration of Results. PER UZO I. NDUKWE-ANYANWU, J.C.A.
ELECTION RESULT: PRESUMPTION IN LAW AS TO CORRECTNESS OF AN ELECTION RESULT DECLARED BY AN ELECTORAL OFFICER; DUTY OF THE PETITIONER TO PRODUCE REBUTTAL EVIDENCE THAT THE ELECTION RESULT DECLARED WAS FALSE
…the case of Nwobodo V. Onoh (1984) 1 All NLR 1 where Bello, JSC (as he then was) held at page 21 that: “…there is in law a rebuttable presumption that the result of any election declared by the FEDECO is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption. In my view, where such denial is based on allegation of crimes against the FEDECO officials responsible for the declaration of the result, the rebuttal must be proved beyond reasonable doubt.” This presumption in law is founded on the provisions of Section 150(1) of the Evidence Act, 2004 which provides that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. The duty of the Presiding officer is to announce the result of the election at the close of the polls and counting of the votes. The law enjoins the presiding officer to sign and stamp the forms, copies of which are given to the candidates or their agents and security agents, etc. See Section 63(1)-(4), 64 and 65 of the Electoral Act No. 6 of 2010 as amended. The appellant has not produced rebuttal evidence showing the falsity of the declarations on Form EC8E (i), namely, that the result of the election was not declared on the 26th April, 2011. PER JOSEPH TINE TUR, J.C.A
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. UDEME IBANGA UMOH
2. ALL NIGERIA PEOPLES PARTY – Appellant(s)
AND
1. HON. ANIEKAN AKPAN
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A.(Delivering the Leading Judgment): This is on appeal against the judgment of the National Assembly and State House of Assembly Election Tribunal Holden in Ibom delivered on 9th of August, 2011. Being dissatisfied with the judgment, the Appellants, Petitioners in the Tribunal filed their Notice and 7 grounds of Appeal. The Appellants thereafter filed their appellants brief on 1st September, 2011 and articulated 6 issues for determination namely: –
(i) Whether the learned trial Tribunal Judges were right in holding that the 1st Respondent’s Form EC8E (i) is admissible in view of Section 91 (3) and 111 (1) of the Evidence Act, LFN, 2004 in other to conclude that the said election results was declared on 26th April, 2011. (Grounds 1, 3 and 4).
(ii) Whether the learned trial Tribunal Judges were right in holding that the 1st Respondent’s motion on notice dated 29th July, 2011 does not constitute abuse of court process. (Ground 2).
(iii) Whether the trial tribunal had necessary jurisdiction to hear and determine the 1st Respondent’s application of the time it did in view of the express provision of paragraph 12 sub 5 of the 1st Schedule to the Electoral Act, 2010 (as amended). (Ground 6).
(iv) Whether or not the trial tribunal was right when it held that Section 134 of the Electoral Act, 2010 still subsist in view of Section 32 of the Electoral (Amendment) Act, 2010. (Ground 5).
(v) Whether the learned trial Tribunal Judges were right in holding that a party ought to regularize his appearance before he can object to the jurisdiction of the tribunal (Ground 7).
(vi) Whether or not the ruling is against the weight of evidence in this case? (Grounds 1, 2, 3, 4, and 5)
The 1st Respondent filed his Respondent’s brief on 9th September 2011 and adopted the issues as formulated by the Appellants. Likewise the 2nd and 3rd Respondents filed their own Respective briefs on the 9th September, 2011.
Curiously, the Appellant filed a Preliminary objection with his reply to the 1st, 2nd and 3rd Respondent’s brief.
However on realizing the futility of this process abandoned same and it is hereby struck out.
I have read, the issues articulated by the appellant and adopted by the Respondents. The paramount issue to be dealt with is that bordering on the jurisdiction of the Tribunal to try this petition as filed.
The 1st Appellant was the candidate of the 2nd Appellant in the election held on the 26th April 2011. The 1st Respondent was the candidate of the 2nd Respondent. The 3rd respondent is INEC. After the election the 3rd Respondent declared the Results and Returned the 1st Respondent on the 26th April, 2011 vide form EC 8E (1) on page 320 of the Record of proceedings.
The appellants as petitioners at the Tribunal filed their petition on 18th May, 2011 which is not in dispute.
The 1st Respondent on being served with the appellants, petition filed his response. Subsequently he filed a motion on notice on the 29th July, 2011 praying the Tribunal to strike out the petition of the appellants it being incompetent.
The 1st Respondent argued that the petition filed on the 18th May, 2011 was filed out of time.
This issue is the paramount issue in all the issues as articulated by the Appellants.
Where a court is faced with an issue whether it has the necessary jurisdiction to deal with the petition as it is constituted, it must as of necessity deal with the issue of jurisdiction and determine whether it has jurisdiction before it can continue one way or the other.
It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent, to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived of in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted.
See the following cases:-
– Umanah v. Attah (2006) 17 NWLR (pt. 1009) 503 – Madukolu v. Nkemdilim (1962) 1 All NLR 587
– Skenconsult v. Ukey (1981) 1 SC 6 – Benin Rubber Producers Ltd v. Ojo (1997) 9 NWLR (pt. 521) 388
– Magaji v. Matari (2000) 5 SC 46 – Aloa v. African Continental Bank Ltd (2000) 6 SC (pt. 1) 27
– Galadima v. Tambai (2000) 6 SC (Part 1) 196 – Araka v. Ejeagwu (2000) 12 SC (pt. 1) 99
– Lufthansa Airlines v. Odiese (2006) 7 NWLR (pt. 978) 39.
The condition precedent in this petition is whether the petition filed on 18th May 2011 was filed within the prescribed period as envisaged by S. 285 (5) of the 1999 constitution (as amended). This section provides that a petition must be brought not later than 21 days after the declaration and return of the winner. In this case, the 1st Respondent was returned on the 26th April, 2011 after the elections of the same day.
The Appellants had 21 days to file their petition which ought to be filed on or before the 17th May, 2011. Any day outside this date renders the petition incompetent and some would be declared statute Barred. The Appellants have argued that the Tribunal ought not to have accepted and relied on the Results Sheets attached to the motion on notice. Appellants counsel argued further that it offends S.111 of the Evidence Act.
The Appellants counsel had argued strenuously about the authenticity of the Result Sheets tendered and most especially forms EC8E (1), the Declaration of Results. Where there are conflicting affidavit and oral evidence, the court has no alternative but to resort to documentary evidence to test the veracity of the oral and affidavit evidence elicited from both parties.
In this case it is the Declaration of Results Form. The arguments as proffered by the parties as to the date of declaration of Results are contained in the form.
The court cannot close its eyes on the Declaration of Results as is exhibited in the motion on notice of 20th July, 2011 by the 1st Respondent. The appellants have not likewise exhibited another more authentic Declaration of Results form, on the form; the date is 26th April, 2011. The party agents for ACN, ANPP and PDP signed the declaration form and doted same. The appellants’ party agent for ANPP signed its portion. This shows that this piece of evidence cannot be thwarted by oral evidence. See Adighile v. Nwaogu (2010) 12 NWLR pt. 1209, page 419, Buhari v. Obasanjo (2005) 18 NWLR pt 941 page 255. Documentary evidence cannot be added to or subtracted from by oral evidence. It is the hanger to hang oral evidence and used in testing the veracity of same.
As it is, the Declaration of Result form is the authentic document which no oral evidence nor affidavit evidence can supplement. The Declaration of Result form is the official INEC form for declaration of Results.The court have held severally that there is no set mode of bringing to the court’s attention question of jurisdiction. Counsel can question the jurisdiction of the court in any way: Orally, informally and formally by way of preliminary objection or by way of motion on notice. Once the jurisdiction of a court is questioned, it must be determined expeditiously before any other step can be taken. This petition filed on the 18th May, 2011 after the result was declared on 26th April, 2011 is clearly out of time by one day. The petition ought to have been entered by the 11th May, 2011. This petition as constituted is out of time and therefore statute Barred.
The Tribunal was therefore right in striking out this petition No: EPT/AK/HA/31/2011.
This appeal lacks merit and is therefore dismissed. The judgment of the Tribunal is hereby affirmed.
I make no orders as to cost.
JOSEPH TINE TUR, J.C.A.: I read the judgment delivered by my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I am in total agreement that this appeal lacks merit.
One out of the six questions submitted by the learned counsel to the appellants for determination is whether the Tribunal Judges were right in holding that the 1st Respondent’s Form EC8E (i) was admissible in view of section 91(3) and 111(1) of the Evidence Act, 2004 as conclusive proof that the election result was declared on the 26th April, 2011.
To answer this question the starting point is the case of Nwobodo V. Onoh (1984) 1 All NLR 1 where Bello, JSC (as he then was) held at page 21 that:
“…there is in law a rebuttable presumption that the result of any election declared by the FEDECO is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption. In my view, where such denial is based on allegation of crimes against the FEDECO officials responsible for the declaration of the result, the rebuttal must be proved beyond reasonable doubt”.
This presumption in law is founded on the provisions of Section 150(1) of the Evidence Act, 2004 which provides that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. The duty of the Presiding officer is to announce the result of the election at the close of the polls and counting of the votes. The law enjoins the presiding officer to sign and stamp the forms, copies of which are given to the candidates or their agents and security agents, etc. See Section 63(1)-(4), 64 and 65 of the Electoral Act No. 6 of 2010 as amended.
The appellant has not produced rebuttal evidence showing the falsity of the declarations on Form EC8E (i), namely, that the result of the election was not declared on the 26th April, 2011.
For the above reason I also dismiss this appeal.
ISAIAH OLUFEMI AKEJU, J.C.A.: My lord, Hon. Justice Uzo I. Ndukwe-Anyanwu JCA gave me the opportunity of reading the draft of the lead judgment just delivered. I agree that there is no merit in this appeal and I dismiss it with no order as to costs.
Appearances
GODWIN O. EFFIONG, ESQ.For Appellant
AND
UWENEDIMO NWOKO, ESQ.For Respondent
