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MR. KAINJI ALUGE-OBIA
MARTIN OKONTA & ORS
IN THE COURT OF APPEAL OF NIGERIA
ON THURSDAY, THE 21ST DAY OF FEBRUARY, 2008
BEFORE THEIR LORDSHIPS
SAKA ADEYEMI IBIYEYE, JCA
STANLEY SHENKO ALAGOA, JCA
ALI ABUBAKAR BABANDI GUMEL, JCA
P.A. OGANA ESQ. – For Appellant
L.O. FAGBEMI, SAN.
O.A. ADEYEMI ESQ. – For Respondent
ELECTION PETITIONS – TIME LIMIT TO FILE ELECTION PETITION: When time start running in an election matter for an aggrieved candidate for the purposes of filing an election petition – How determined – When deemed to have expired – Implication for jurisdiction of court
ELECTORAL MATTERS – INTRA-PARTY NOMINATION OF CANDIDATES: Under Electoral Act, 2006 – Whether Election Tribunal or the Court of Appeal has jurisdiction to interfere with intra party matters
PRACTICE AND PROCEDURE – ACTION – PRELIMINARY OBJECTION: Trite law that a preliminary objection if successfully taken by the objector, is capable of putting an end to the hearing of the case or appeal as the case may be – Application of
PRACTICE AND PROCEDURE – COURT – JURISDICTION:- Nature and essence of – Lack of – Implications for any judicial no matter how well conducted
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – DECLARATORY ORDER:- Discretionary nature of – Trite law that a declaratory order or judgment merely declares the rights of the parties and it is dormant beyond that pronouncement as it has no force of execution against the defendant and as such cannot be stayed or suspended – Proper treatment of by court
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – EFFECT OF JUDGEMENT:- Principle that in Nigeria’s democratic regime Nigeria does not endow any court judgment with any retrospective effect – When a judgment properly takes effect – Justification of
PRACTICE AND PROCEDURE – LIMITATION LAW – LIMITATION ACTION: When time is deemed to begin to run in order to determine if an action is statute barred – Determination of – Relevant consideration
SAKA ADEYEMI IBIYEYE, OFR, J.C.A (Delivered the Leading Judgment):
It is now common knowledge that general elections were held into several elective offices throughout the thirty-six component States of the Federal Republic of Nigeria on the 14th day of April, 2007. One of the elective offices into which the election took place was the Ika South Constituency in the Delta State House of Assembly in Asaba. At the election into the said constituency, three candidates who were Kainji Aluge-Obia,. Ikpade Oyibo Jacob and Martin Okonta contested and were respectively sponsored by the Action Congress (AC), Democratic Peoples Party and Peoples Democratic Party.
At the conclusion of the election on the 14th day of April, 2007 the Electoral Officer for the Ika South Local Government Area (the 4th respondent) declared Martin Okonta (the 1st respondent) the winner having scored 59,477 votes followed by Ikpade Oyibo Jacob who scored 634 votes to be in the second position while Kainji Aluge-Obia (the petitioner) scored 605 votes to be in the third position.
The petitioner (Kainji Aluge-Obia) was apparently vexed by the declaration of results made by the Electoral Officer of the Ika South Local Government Area (the 4th respondent) and filed a petition on the 16th May, 2007.
The petition which was filed before the Governorship and Legislative Houses Elections Tribunal sitting in Asaba, at the risk of detailed repetition, is essentially-
“1. Your petitioner, Kainji Aluge-Obia, was a candidate at the above election and your petitioner states that the election was held on the 14th of April, 2007 when Aluge-Obia Kainji (AC) i.e. petitioner; Ikpade Oyibo Jacob (DPP) and Martins Okonta (PDP) were candidates.
(a) The petitioner = 605 votes
(b) The 1st respondent = 59,477 votes
(c) Ikpade Oyibo Jacob = 634 votes
(a) The 1st respondent was at the time of the election not qualified to contest the election because:-
(i) The 1st respondent was not the candidate nominated by the PDP for the said election; the candidate who was nominated but did not contest was KINGSLEY PHILIPS.
(ii) The Federal High Court NO.4 sitting in Abuja had in a judgment delivered in Suit No. FHC/ABJ/CS/220/2007 declared that the 1st respondent was not the candidate duly nominated by the Peoples Democratic Party for the said election. At the trial, the petitioner will rely and found on a certified true copy of the judgment in the said case.
(b) The petitioner avers that the votes cast for the 1st respondent were null and void, he not being a candidate at the said election.
(c) The other candidate, Ikpade Oyibo Jacob (DPP) had withdrawn from the election and duly served notice of his withdrawal on the 2nd respondent.
All the votes cast for the said candidate were therefore void. Reliance will be placed on the notice of withdrawal from the election served on the 2nd respondent by Ikpade Oyibo Jacob (DPP).
(d) The petitioner avers that he was the only Candidate duly nominated to contest the election.
Reliance will be placed on the petitioner’s nomination papers at the tria1.
(e) By reason of the above matters, the petitioner avers that he is the only candidate whose name was validly nominated in respect of the election and ought to have been declared elected by virtue of the provisions of the Electoral Act.
AND your petitioner states that the grounds on which he relies are as follows:
(a) That the purported return of the 1st respondent is invalid by reason of non-compliance with the provisions of the Electoral Act.
(b) That he is the only lawfully nominated candidate at the election and therefore ought to have been declared elected by the 2nd respondent.
WHEREFORE your petitioner prays for the following reliefs:-
(a) A declaration that the 1st respondent was not duly elected or returned and that his election was void by reason of his not being qualified to contest the election and non-compliance with the provisions of the Electoral Act.
(b) An order setting aside the purported return of the 1st respondent as the elected candidate for Ika South Constituency in the Delta State House of Assembly elections.
(c) A declaration that the petitioner being the only validly nominated candidate for Ika South Constituency in the Delta State House of Assembly elections, was duly elected at the said election.”
On 26th May, 2007, the 1st respondent filed a conditional appearance.
On 1st June, 2007, Kingsley Nonye Philips filed a motion on notice seeking to be joined as the 5th respondent being an interested party in the instant petition.
Subsequently, the two sets of respondents that is to say the 1st Respondent and the 2nd to the 4th respondents filed separate replies to the appellant’s petition.
Averments of particular moment in the 1st respondent’s reply are stated in its paragraphs 1, 2, 3, 4, 5, 8 and 9. They read as follows:
“1. The 1st respondent admits paragraph 4 of the petition to the extent that the 1st respondent was declared the winner of the election to Delta State House of Assembly for Ika South Constituency held on the 14th day of April, 2007 but avers further that the result of the election was declared on the same 14th day of April, 2007, the same day the 2nd respondent issued declaration of results and it is not true that the result was declared on the 17th April but back dated to 14th April. 1st respondent will rely on the Declaration of Results of Election issued on 14th April, 2007.
(a) The 1st respondent was qualified to contest the election of 14th April, 2007.
(b) The 1st respondent was the candidate nominated and sponsored by the Peoples Democratic Party (PDP) for the election to the Delta State House of Assembly for Ika South Constituency held on 14th April, 2007 and not Kingsley Philips.
(c) The 1st respondent avers that the judgment of the Federal High Court referred to by the petitioner was delivered on 10th May, 2007 after the conclusion of elections and declaration of results, also the judgment did not remove or substitute the 1st respondent as the candidate of the PDP at the above election.
(d) The 1st respondent duly contested the above election on the platform of the PDP and won the election and was declared the winner having secured the highest number of lawful votes cast at the election and has since been issued with a certificate of return which will be relied upon at the trial.
The 2nd to the 4th respondents titled their reply to the petition thus:
“2ND – 4TH RESPONDENTS’ REPLY NOTICE OF PRELIMINARY OBJECTION –
and averred particularly at paragraph I as follows:
(a) The Honourable Tribunal lacks jurisdiction to entertain the said petition same having been filed out of the time allowed by S.141 of the Electoral Act, 2006.
(b) That the ground of the petition challenging the nomination of the 1st respondent is unknown to the grounds of challenging elections under the Electoral Act, 2006.
(c) That the ground of the petition challenging the nomination of the 1st respondent is pre-election dispute.
(d) Pre-election disputes are outside
The jurisdiction of Election Petition Tribunal.
SUBJECT to the outcome of the preliminary objection, the respondents’ reply to the petition as follows (sic):
(by reproducing in particular its paragraphs 4, 5 and 6).
(i) The 1st respondent was duly qualified to contest the 14th April, 2007 Delta State House of Assembly Ika South Constituency elections.
(ii) The 1st respondent was duly sponsored and nominated by the Peoples Democratic Party (PDP) for the 14th April, 2007, Delta State House of Assembly Ika South Constituency elections.
(iii) The 1st respondent’s requisite qualifications verified and cleared by the 2nd respondent before election (sic).
(iv) The 1st respondent was a validly nominated candidate of the PDP at all material times before and during the election of 14/4/07.
List of nominated candidates published by the 2nd respondent is hereby pleaded and shall be relied upon at the trial.
(v) The 1st respondent contested the said election on the platform of Peoples Democratic Party (PDP) having satisfied all the requirements of the law.
(vi) In Suit No. FHC/ABJ/CS/220/2007 delivered on 10th May, 2007 (after the election has been concluded) declaratory reliefs 1-3 sought therein were granted in favour of the plaintiff while the injunction reliefs sought were expressly refused having been overtaken by events (sic).
(vii) The declaratory reliefs granted in Suit No. FHC/ABJ/CS/220/07 were based on a judgment in personam and the petitioner cannot take benefit of it being a stranger to the suit.
(viii) There was no order of injunction granted in any suit restraining the Peoples Democratic Party from putting forward the respondent’s name as a candidate at the election of 14/4/07.
(ix) There was no order of any Court restraining the 1st respondent from contesting the election as at 14/4/07 or any other time. The basis of the allegation of non qualification set out in the petition is not real.
(x) There was no order of any Court restraining the 2nd – 4th respondents from returning the 1st respondent as the winner of the election of 14/4/07 on the same 14/4/07.
(xi) The Peoples Democratic Party to which has the statutory rights to present or substitute its candidates for elections and which is affected by the decision in FHC/ABJ/CS/220/07 is not a party to this petition.
I shall only mention that in the prevailing circumstances of this case that the petitioner filed replies to the respondents’ replies which may not be quite necessary to reproduce because from the state of the record of proceedings the two sets of respondents seriatim filed notices of preliminary objections.
I daresay the Governorship and Legislative Houses Election Tribunal (hereinafter referred to as the Tribunal) holden in Asaba in respect of the instant petition was well guided by the settled principle that a Court is in duty bound to first express in writing whether it agrees with a preliminary objection raised in a proceeding or not. It is a cardinal principle of administration of justice to let a party thereto know the fate of his application even if the objection appears frivolous it cannot be ignored moreso when the issue of jurisdiction as in the instant case is involved. The issue of jurisdiction is no doubt so fundamental to the hearing of a case that no trial or appellate Court should treat it lightly. A trial without jurisdiction is not only an exercise in futility but will also lead to a dead end. See TAMBCO LEATHER WORKS LTD. V. ABBEY (1998) 12 NWLR (PT.579) 548 AT 554/555; NWANWATA v. ESUMEI (1998) 8 NWLR (PT.563) 650 at 666; MADUKOLU V. NKEMDILIM (1962) 2 SC NLR 341; OWONIBOYS TECHNICAL SERVICES LTD. V. JOHN HOLT LTD. (1991) 6 NWLR.
It is further trite to state that the purpose of a preliminary objection if successfully taken by the objector, is capable of putting an end to the hearing of the case or appeal as the case may be. See N.E.P.A. V. ANGO (2001) 15 NWLR (PT. 737) 627 at 645/646.
The learned Judges of the Tribunal duly considered the preliminary objections which are similar in substance raised by the two sets of respondents and delivered their ruling on the 15th day of August, 2007. Thus the Tribunal held, inter alia:-
“Given the provisions of S.34 of the Electoral Act particularly the provision of subsection (2) thereof and the fact that the candidacy of the 1st respondent to contest the election of 14/4/2007 on the platform of the PDP was not nullified by any order of any Court of competent jurisdiction at all material times prior to the said election it becomes glaring in the view of the Tribunal that the candidate of the 1st respondent for the election on the platform of the PDP remained inviolate and that the question of the qualification of the said 1st respondent on the ground that he was not sponsored by his political party again raises pre-election matter who ought to have been the candidate of the PDP in the election (sic). As earlier stated the petitioner no doubt fashioned his case upon the case of ANSELEM ONEJEME V. HON. (MRS.) EUCHARIA & Ors. (supra). It would, however, appear that given the provisions of S. 34 of the extant Electoral Act particularly sub-section (2) thereof, that decision does not avail the petitioner. On the contrary it would appear that the case more germane to the instant petition is that of PDP & ANOR V. YAUD MOHAMMED & ORS. (2005) ALL FWLR (PT. 289) 1322 wherein the Court of Appeal decided to the effect that where the Electoral Act provided specifically for the taking of a particular step to remedy an infraction committed in the electoral process before the conduct of the election, then a petitioner cannot make such an infraction the basis of his challenge to the qualification of the person returned in the ejection.
From all that has been stated, the Tribunal therefore finds the petitioner to be raising the pre-election matter of nomination as it relates to the 1st respondent under the guises of questioning the qualification of the said respondent for the election not justiciable in an election petition and accordingly not within its jurisdiction. This remains so as the ground “that the purported return of the 1st respondent is invalid by reason of non-compliance with the provisions of the Electoral Act” having regard to the totality of averments in the petition is predicated solely on the allegation that the 1st respondent was not the actual candidate of the PDP for the election. By virtue of this finding, grounds 2 and 3 of the motion of the 2nd – 4th respondents succeed while ground 5 of the motion of the 1st respondent succeeds to the extent that the instant petition is not justiciable. Given this finding there would also appear to be no basis for the consideration of other the issues (sic) such as those of locus standi, joinder of parties etc raised by the 1st respondent.
The 1st respondent equally raised the issue of the instant petition being an abuse of the process of the Tribunal.
Suffice it to say that no mala fide is disclosed on the face of the petition. The petitioner having contested the election and being aggrieved with the return of the 1st respondent is entitled under the Electoral Act to present a petition questioning the said 1st respondent’s return. The fact that the petitioner would appear not to have properly pigeonholed his grouse does not make the petition to be an abuse of the process of the Tribunal.
As for the attachments to the petition, though it is clear that the petitioner did not attach the documentary evidence he would possibly rely at the hearing to the petition, it however to be noted (sic) that the Practice Directions upon which the 1st respondent relies in saying that the failure of the petitioner in this regard renders the petition an abuse equally in paragraph 4 (8) does not foreclose the possibility of accepting in evidence at the trial documentary evidence that has not been front loaded with the petition. It would therefore appear that the issue under consideration is better raised and disposed of if the petition ever goes to trial.
From all that has been said before now and given the success of the grounds of the application of the 2nd – 4th and 1st respondents respectively earlier stated above and which grounds have successfully impugned the competence of the instant petition, the Tribunal in the circumstances holds that it has no jurisdiction to entertain the same on the merit. Accordingly, the instant petition is hereby struck out.”
The appellant being aggrieved by this ruling appealed to this Court on two grounds of appeal. The appellant raised the following two issues for the determination of this appeal:
“1. Whether the learned Judges of the Tribunal were right in holding that the petition is statute barred based on a document which was in controversy.
The 1st respondent on his part raised the following two issues for the determination of the appeal:-
“(i) Whether the learned Judges of the Governorship and Legislative Houses Election Tribunal were right when they held that the petition was statute barred.
(ii) Whether the learned Judges of the Governorship and Legislative Houses Election Tribunal were right when they held that the petition was incompetent the same having been premised on nomination and sponsorship of the 1st respondent by the PDP.”
In similar vein, the 2nd to the 4th respondents jointly adumbrated similar number of issues for the consideration of this appeal. Thus:-
“1. Whether having regard to the mandatory provision of S.141 of the Electoral Act 2006, the petition of the appellant was rightly struck out for being statute barred.
Briefs of argument were filed and exchanged between the parties.
It is apparent that there are striking similarities in the issues identified by the appellant and the two sets of respondents in this appeal. I shall, in view of this observation, make use of the issues raised by the appellant for the determination of this appeal.
At the hearing of the appeal on the 26th November, 2007, the learned counsel for the appellant and the two sets of respondents adopted and relied on their respective briefs of argument with amplification of Issue NO.2 on pre-election matters by the learned counsel for the appellant and the 1st respondent.
In dealing with Issue No. 1 on limitation of action, A.M. Oriakhi Esq., the learned counsel for the appellant submitted that the Tribunal was wrong in determining the period of limitation based on affidavit evidence. He argued that instead of any recourse to the aid of affidavit evidence, albeit controversial to resolve the period of limitation, the Tribunal should have looked at the averments in the petition and the respondents’ replies in order to discern when the results of the election in point were declared and he relied on the case of EGBE V. ADEFARASIN (1987) 1 SC 1 at 36/37 where it was held that the period of limitation can be determined by simply looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date on which the Writ of Summons was filed. He further argued that discerning of the period of limitation can be done without taking oral evidence from witnesses and that it is wrong in law to compute time from a date pleaded in the statement of Defence not admitted by the plaintiff and called in aid the cases of FORESTRY RESEARCH INSTITUTE OF NIGERIA V. I .A. E NAIFOGHE GOLD (2007) ALL F WLR (PT. 80) 1444 at 1456-1457; OMOTAYO V. N.R.C. (1992) 7 NWLR (PT. 254) 471 at 485; ALAO V. N.I.DB (1999) 9 NWLR (PT. 617) 103 at 113 and ODUAH V. FIRST BANK OF NIGERIA PLC (2001) FWLR (PT. 59) 1304 at 1313.
Learned counsel contended that based on his own perception of the law that since the petitioner averred that the results were declared on 16th April, 2007, the petition in point was filed within time. He referred to the case of ALATAHA v. ASIN (1999) 5 NWLR (PT. 601) 32 at 44 where the issue of limitation period was resolved on conflicting affidavit evidence and not based on the averments in the petition. He urged the Court to prefer, with regard to the issue of limitation period, the decision of the Supreme Court in the case of EGBE v. ADEFARASIN (supra) at pages 36 and 37 which laid down the principle thereof as it was subsequently followed in the cases of FORESTRY RESEARCH INSTITUTE OF NIGERIA v. I.A. ENAIFOGHE GOLD (supra) at 1456-1457; ALAO v. N.LDB (supra) at page 113 and ODUAH v. FIRST BANK OF NIGERIA PLC (supra) at 36/37. He went on to state the obvious that this Court is bound by the decisions of the Supreme Court. Learned counsel contended the decision in ALATAHA v. ESIN (supra) was reached per in curiam and urged the Court either not to follow it or overrule it and resolve Issue No.1 in favour of the appellant.
On Issue No. 1, O.A. Dare Esq., the learned counsel for the 1st respondent submitted that the appellant does not have any grouse with the findings and conclusion of the learned Judges of the Election Tribunal that the result of the election was declared in the prescribed form on the 14th day of April, 2007 by the returning officer. He further submitted that the only issue which the appellant raised in his brief of argument is that it was wrong for the Tribunal to have decided the issue of limitation period on affidavit evidence. He reiterated that the findings of the Tribunal were largely that first, the election was concluded on the 14th day of April, 2007. Secondly, one Dibosa Christabel Nkiruka was the returning officer at the said election.
Thirdly, that the said returning officer declared the 1st respondent the winner of the election in the prescribed form on the 14th day of April, 2007 and fourthly, that the result of the election was not declared on the 17th day of April, 2007. He argued that the foregoing facts are crucial and/or fundamental findings of the Tribunal which the appellant has not challenged in his brief of argument or at all. These findings are, therefore, the learned counsel submitted, deemed accepted by the appellant and he relied on the cases of SALAUDEEN V. OLADELE (2003) 3 NWLR (pt. 806) 29 at 44 and SAMPSON DANIEL UKPONGI & 1 OTHER V. COMMISSIONER FOR FINANCE & ECONOMIC DEVELOPMENT & 1 OTHER (2006) 19 NWLR (PT. 1013) 187 at 216.
Learned counsel submitted that the decision of the Tribunal striking out the petition for being filed out of time is correct and urged the Court to resolve Issue NO.1 in favour of the 1st respondent and dismiss the appeal.
In behalf of the 2nd to 4th respondents, L.O. Ojomoh Esq., their learned counsel, submitted that the Tribunal was right to have declined jurisdiction to entertain the petition for being statute barred having regard to the incontrovertible affidavit evidence placed before it (the Tribunal). On whether the appellant’s petition was statute barred, he referred to the respondents’ affidavit supporting their motion that the returning officer for the election in point declared the results of the said election on the same day the election took place on 14th April, 2007 and that a certified true copy of the declaration form that is Form EC8E marked exhibit A was attached to the affidavit. The learned counsel further submitted that exhibit A which is the documentary evidence issued by the returning officer (Christabel Dibosa Nkiruka) in keeping with the Electoral Act was rightly given due effect by the Tribunal as conclusive evidence of the date of the declaration of the result of the election which was 14th April, 2007. In furtherance of the foregoing, learned counsel submitted that there is no contrary or conflicting documentary evidence from any other person claiming to be charged with the duty of declaring the duty of declaring the result of the election in question to the effect that the same election was declared on any other date different from 14th April, 2007. Learned counsel particularly referred to Ss.28(2) and 69 of the Electoral Act 2006, paragraphs 31 and 32 of the Guidelines and Regulations for the conduct of Federal States and Area Councils Elections 2007 and paragraph 220.127.116.11 (pages 39-41) of the Manual For Election Officials 2007 issued by the 2nd respondent pursuant to S.161 of the Electoral Act, 2006 and that on a global reading of them, time begins to run for the petitioner from the date of the declaration of the results by the returning officer for the election and not from the date published in the newspapers or announcement on the radio as such announcement was not within the contemplation of or envisaged by the Electoral Act as a mode of declaration of result but that the prescribed mode envisaged was the one in exhibit A. He relied on the case of ALATAHA V. ASIN (supra) at page 44 and IYIRHIARO V. USOH (1999) 4 NWLR (PT. 597) 41. In the latter case, it was held, inter alia, that the day the declaration of an election result in the prescribed mode is made is the common denominator in the issue of computing the time limit for filing a petition. He argued that the submission of the appellant’s counsel in the appellant’s brief of argument that it is the petitioner’s claim of the date of declaration of the results of the election that determines the yardstick of calculating the requisite period of 30 days allowed for the filing of a petition not that the date stated by INEC has no place in law.
Learned counsel further contended that there is no need for calling oral evidence in resolving this issue of date of declaration of results of the election because the decision in the case of NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT. 135) 688 at 718 is to the effect that the documentary evidence in Form EC8E (and in the instant case marked exhibit A) has resolved any conflict that may arise. He finally submitted that the decision in ALATAHA V. ASIN (supra) was not reached per incuriam and urged the Court to hold it as good law and resolve Issue No. 1 in favour of the respondents.
I have had a global perusal of the record of proceedings in this appeal and particularly the submissions dutifully made by all the learned counsel for the parties in their variant briefs of argument and the oral amplification thereof. I am highly persuaded by the submissions of the learned counsel for the 1st respondent and the 2nd-4th respondents in resolving Issue No. 1. The crucial question is: When does time start running in an election matter for an aggrieved candidate for the purposes of filing an election petition? Section 141 of the Electoral Act 2006 (hereinafter referred to as Act 2006) is germane to this question and it reads:
“141. An election petition under this Act shall be presented within thirty (30) days from the date the result of the election was declared. ”
This provision has been given legal interpretation in the case of ALATARA V. ASIN (supra) by Salami, JCA at page 44 where he stated:
“The time therefore began to run in this case on 7th December, 1998 when Exhibit 1 or R1 was issued declaring the 1st 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 them to prove their case had happened.” It is equally pertinent to state that in determining whether an action is statute barred to ask for when time began to run. This question was considered by the Supreme Court in the case of FADARE V. ATTORNEY GENERAL, OYO STATE (1982) 4 SC 1; (1982) NSCC 52 at 60 where it held, inter alia:-
“Time therefore begins to run where there is in existence a person who can sue and another who can be sued and all the facts have happened which are material to be proved to entitle the plaintiff to succeed.”
It is of moment to know who, in an election matter, can make a functional declaration of the winner. Sections 28(d) (d) and 69(c) of Act, 2006 should be given utmost consideration. They read:
(2) Results of all the elections shall be announced by.
(d) the Returning Officer at State Constituency Collation Centre.
(c) declaration, scores of candidates and the return of a candidate, shall be final subject to review by a tribunal or Court in an election petition proceedings under this Act. ”
Section 141 of Act 2006 also has an essential role to play in the consideration of Issue No. 1. The said Section has already been reproduced (supra).
The foregoing provisions have patently provided for the several steps to be taken in order to know who should set the ball rolling in the initiation of an election petition and when time starts running. These provisions are, in my view, comprehensive enough and by the nature of election matters, which are sui generis, do not admit of any extraneous recourse. In effect the mode of determining limitation period in other civil litigations are hardly recoursed to in election matters which are invariably subject of special treatment. I opine, therefore, that the considerable weather made of the decisions in the cases of EGBE V. ADEFARASIN (supra); FORESTRY RESEARCH INSTITUTE OF NIGERIA V. LA. ENAIFOGHJE GOLD (supra); ALAO V. NIDB (supra) and ODUAH V. FIRST BANK OF NIGERIA PLC (supra) are, with due regard, not relevant to election matters.
On the place of affidavit evidence resolving the issue of date of declaration of result for the purpose of period of limitation in an election, the Supreme Court has held that the documentary evidence in Form EC8E such as Exhibit A in the instant case is capable of resolving any conflict in affidavits. Page 118 of NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (supra), Nnaemeka-Agu, JSC stated:
“But I believe that it is not only by calling oral evidence that such a conflict could be resolved. There may be authentic documentary evidence which supports one of the affidavits in conflict with another in a trial by affidavit evidence such as this. That document is capable of tilting the balance in favour of the affidavit which agrees with it. After all, even if oral testimony has been called such a documentary evidence would be a yardstick with which to assess oral testimony.”
In view of this authority and in further view of the peculiar nature of election petition coupled with its propensity for speed and the special place of Form EC8 series in the Electoral Act, the recourse to the premium placed on the said form in ALATAHA V. ASIN case cannot be faulted nor does it make it a bad law. It is instead good law for the purposes of election matters.
From the state of the record and particularly the briefs of argument filed in behalf of the two sets of respondents, the appellant overtly failed to file his petition within 30 days from the date the authentic returning officer for Ika South Constituency in Delta returned the 1st respondent as the winner of the election in point on the 14th April, 2007. In the instant case, the 30 day period contemplated in S.141 of the Electoral Act 2006 expired on the 14th of May, 2007. From the record, the appellant filed his petition on 16th May, 2007, that is to say two days after the 30 day period prescribed for filing election petitions had expired. Filing the instant petition two days after the 30 day period stipulated for doing so is an affront to the mandatory provision in S. 141 of Act 2006.
The argument of the learned counsel for the appellant that the decision in ALATAHA V. ASIN (supra) is bad law and should be overruled does not find any favour with me. I instead hold that it is good law and quite relevant for the consideration of limitation period and a true reflection of the purport of the statutory provisions in Act 2006. I accordingly resolve Issue NO.1 in favour of the two sets of respondents. In other words, the appellant’s petition is statute barred.
Issue NO.2 is on the propriety of the decision of the learned Judges of the Tribunal on whether the petition raised pre-election matters. The learned counsel for the appellant submitted that paragraphs 5 and 6 of the petition are relevant for the determination of the instant issue. He argued that the Tribunal misapprehended the import and intendment of paragraph 5 of the petition and thereby came to a wrong conclusion that it raised pre-election matters. He went on to submit that in paragraph 5(a)(1) and (ii) of the petition, the petitioner only pleaded that the Federal High Court had already decided that the candidate nominated by the PDP for the said election was not the 1st respondent but one Kingsley Philips and that accordingly the petitioner only averred in paragraph 5(b) that the 1st respondent was not a candidate at the said election and as such the votes cast for him were null and void. He submitted that the real purport of paragraphs 5 and 6 of the petition is that the PDP could not have sponsored the 1st respondent having regard to the decision of the Federal High Court. He argued that it is inconceivable that a political party could sponsor two candidates for the same election or brazenly disregard a valid order of the Court. He highlighted the order of the Federal High Court which is to the effect that the 1st respondent was not nominated by the PDP. He submitted that the judgment pleaded in paragraph 5(a) of the petition having distinctly determined the issue as to who between the 1st respondent and Kingsley Philips was the actual candidate of the PDP properly nominated by the PDP for the election of 14/4/07, the Tribunal could not and was not expected to re-open it. He relied on the case of MRS. SYLVIA SALAY & ORS. V. ALHAJA KUDIRAT PARAKOYI (2001) 1 NWLR (PT. 695) 446 at 453.
He further submitted that the findings of the Tribunal that the petition raised pre-election matters of nomination of the 1st respondent was based on its wrong approach to the subsisting judgment of the Federal High Court which had dealt with the said issue. Learned counsel equally submitted along the lines of S.145(1)(a) of the Electoral Act 2006 that an election can be questioned on the ground that the person whose return is complained of was at the time of the election disqualified or not qualified to contest the election.
He concluded that when a candidate has been held by the Court not to have been validly nominated by his party, he cannot be said to have been sponsored by his political party. He cited in aid the cases of JAMES SUNDAY AFOLAYAN V. DR. AYODELE BAMIDELE (1999) 3 NWLR (PT. 595) 454 at 462; ALI PETERS V. ATIGWE DAVID (1999) 5 NWLR (PT. 603) 486 at 495 to 497; ONAJEME V. AZODO (2005) ALL FWLR (PT. 275) 550 at 572; ILOBI V. UZOEGWU & ORS. (2005) ALL FWLR (PT.285) at 295 at 609. Premised on the foregoing, the learned counsel urged the Court to resolve Issue NO.2 in favour of the appellant.
In reply to Issue NO.2, the learned counsel for the 1st respondent reiterated paragraph 5(a) of the appellant’s petition thus:
“5. Your petitioner states that the facts on which the petitioner relies are as follows:
(a) The 1st respondent was at the time of the election not qualified to contest the election because:
(i) The 1st respondent was not the candidate nominated by the PDP for the said election; the candidate who was nominated but did not contest was KINGSLEY PHILIPS.
(ii) The Federal High Court NO.4 sitting in Abuja had in a judgment delivered in Suit No. FHC/ABJ/CS/220/07 declared that the 1st respondent was not the candidate duly nominated by the Peoples Democratic Party for the said election. At the trial, the petitioner will rely and found on a Certified True Copy of the judgment in the said case.”
The learned counsel submitted that it is instructive to note that paragraph I of the petition states that the 1st respondent was the candidate of the PDP at the election of 14th April, 2007 and that it is clear from Exhibit A (the declaration of results Form EC8 attached to the petition) that the 1st respondent was the winner of the election in question under the platform of the PDP. He went on to argue that what the petitioner was urging the Tribunal to do was to investigate the issue of the validity of the nomination and sponsorship of the 1st respondent by the PDP even though the petitioner was a candidate at the said election under the platform of the AC. He submitted that except in cases of unlawful exclusion of a validly nominated candidate from an election, the issue of nomination of candidates for an election is a pre-election matter with which the political party in question, its candidates and the electoral body are concerned. A petition founded on the sole ground of valid nomination of a candidate that contested on the platform of a political party with the petitioner and defeated the petitioner, learned counsel argued, is incompetent. He further contended that it is crystal clear from a plethora of judicial authorities that the issue of nomination of the candidate of a political party in an election is a preliminary matter to an election. He further contended that such an issue is a domestic matter of the political party for which the Tribunal does not have any jurisdiction and cited in aid the cases of MOHAMMED HASSAN HASHIMU V. INEC (2005) 6 NWLR (PT. 920) 56 at 70; ABANA V. OBI (2004) 10 NWLR (PT. 881) 363; UBA V. UKACHUKWU (2004) 10 NWLR (PT. 881) 224 at 259 and OSAKWE V. INEC (2005) 13 NWLR (PT. 942) 442 at 470/471. In furtherance of his submissions, the learned counsel said that the name of the 1st respondent having appeared as the contestant for Ika South Constituency Election held on 14th April, 2007 and having been declared the winner of the candidate of the PDP at the election, the issue of his nomination, sponsorship and/or validity of the same is not a justiciable ground to challenge his election at the Tribunal. He argued that this is so where the election petition is not one challenging the unlawful exclusion from the election by the petitioner. Learned counsel for the 1st respondent described it as strange for a petition filed by the appellant, a candidate of the AC, in inviting the Court to decide who, as between the 1st respondent and another person who is not a party to the election petition, was the validly nominated candidate at the election. He urged the Court to hold that the Tribunal was right in declining jurisdiction on the ground upon which the petition is premised as it is not justiciable and resolve Issue NO.2 in favour of the 1st respondent.
The learned counsel for the 2nd to 4th respondents in his reaction to Issue NO.2 raised in this Appeal reproduced extensively S.145(1) of Act 2006 being the grounds on which an election may be questioned and submitted that the issues raised in paragraphs 5 and 6 of the petition are outside such grounds as they substantially deal with pre-election matters which are not justiciable. He submitted that pre-election disputes relate to procedure for nomination of candidates, submission of list of nominated candidates to INEC, changing of candidates, publication of nominations and withdrawal of a candidate from an election as contained in Ss. 32 to 38. He argued that the foregoing instances and particularly where INEC has held that a candidate has been validly nominated, such decision cannot be a subject of challenge by way of petition claiming that the candidate was not validly nominated and he relied on the case of TSOHO V. YAHAYA (1999) 4 NWLR (PT. 600) 657 where it was held, inter alia, that nomination is an act of suggesting or proposing a person by name to an elective office. This act forms part of the preliminary matters before the actual election is conducted. The person nominated has not yet come to occupy the office for which he is nominated. It is only after crossing the hurdle of nomination that he possesses the mandatory qualification which will admit him to contest the election. Once he stands for the election, he is open to be petitioned against or he can himself petition against others who contested with him on any of the grounds upon which petitions can be filed to the tribunal as provided by the Electoral Act 2006.
Learned counsel submitted that the Tribunal has no powers to question the validity or otherwise of a person’s nomination by his party to contest as that decision lies with the political party concerned. It is equally trite that the issues of primaries, selection and nomination of candidates to contest are decisions which lie within the province of the political party concerned. He added that it is equally trite that the issue of who should be the candidate of any given political party at any election being a preliminary matter is clearly a political one to be determined by the rules and constitution of the said party. It is in fact a domestic issue and non justiciable as such a no go area for an election tribunal or the Court.
Consequently, no person can raise that question as a contestable ground before an election tribunal or even the Court. He relied on the cases of ONUOHA V. OKAFOR (1983) 2 SC NLR 244; OGUNBIYI V. OGUNDIPE (1992) 9 NWLR (PT. 600) 587; JANG V. INEC & 6 ORS. (2004) ALL FWLR (PT. 200) 1545 at 1566 and 1567; PDP V. HARUNA (2004) 16 NWLR (PT. 900) 597 at 613. The learned counsel specifically argued that paragraphs 5 and 6 of the instant petition are not grounds set out for instituting an election petition under S. 145 of the Electoral Act 2006. As regards the heavy weather made by the appellant on the declaratory judgment of the Federal High Court in Abuja delivered on 10th May, 2007 that is to say more than a month after the election had been concluded and the winner of the election declared by the returning officer, the learned counsel submitted that a declaratory order or judgment merely declares a right or an entitlement or the position of the law and that a party who intends to have an enforceable legal right from such a declaratory judgment or order to inure in his favour must also seek an injunctive order and he relies on the Supreme Court case of OBI V. INEC (2007) 11 NWLR (PT. 1046) 545 at 633. He further argued that neither the appellant nor any one was granted any injunctive order against the respondents before or after the election of 14th April, 2007 by any Court in the land in respect of the election into Ika South Constituency.
I have critically considered the circumstances of Issue NO.2 with particular regard to the submissions of all the learned counsel in this appeal. I observed that the appellant relied heavily on the decision in the case of the Federal High Court sitting in Abuja in Suit No, FHC/ABJ/CS/220/2007 delivered on the 10th May, 2007. It is pertinent to note that the judgment in point was delivered on the 10th day of May, 2007 and the election which was meant to affect was conducted and the results declared on the same date, that is say 14th April, 2007, In a democratic regime that at present permeates the length and breadth of Nigeria, no judgment is validly endowed with any retrospective effect Judgments instead take effect invariably from the day they are delivered bearing in mind that persons including juristic persons who are parties to them as in a judgments which are in personam, I further observed from a thorough examination of the said judgment that three declaratory reliefs therein were sought and granted by the trial Court The three injunctive reliefs thereat were refused as reflected on page 24 of the record of proceedings, The law is now very well settled that a declaratory order or judgment merely declares the rights of the parties and it is dormant beyond that pronouncement It has no force of execution against the defendant and as such cannot be stayed or suspended. It is sufficient to say that a declaratory judgment is complete in itself since the relief sought is the declaration, See OKOYA V. SANTILI (1990) 2 NWLR (PT. 131) 172 at 191; GOVERNMENT OF GONGOLA STATE V. TUKUR (1989) 4 NWLR (PT. 117) 592; ATTORNEY GENERAL OF FEDERATION V G.O.K. AJAYI (2000) 12 NWLR (PT. 682) 509 at 527; AKUNNIA V. ATTORNEY GENERAL, ANAMBRA STATE (1977) 5 SC 161- A declaratory relief is discretionary and the Court must exercise the greatest caution when called upon to make it See ENEKWE V. INTERNATIONAL MERCHANT BANK OF NIGERIA LTD. & ORS. (2007) ALL FWLR (PT. 349) 1053. In the instant case, the three declaratory reliefs relied upon by the appellant as having binding effect on the Tribunal to the effect that the 1st respondent had been disqualified from participating in the election which was conducted on 14/4/07 did not carry such incisive power at all as they are merely declaratory. The situation could have been different if the three injunctive reliefs sought by the plaintiff in that case had been granted. In effect, that declaratory judgment is bare and ineffectual as it does not inure any enforceable legal right to the appellant. See OBI V. INEC (supra) at page 633. Since that judgment is bereft of any force to achieve the desire of the appellant as it was delivered long after the election for which it was meant to affect had taken place, I dare say, with due regard, that the learned counsel for the appellant only laboured in vain as regards his copious submissions on it.
As regards the issue of whether or not the appellant’s petition raised pre-election matters, it is pertinent to consider particularly paragraph 5 of the appellant’s petition. It reads:
“5. Your petitioner states that the facts on which the petitioner relies are as follows:
(a) The 1st respondent was at the time of the election not qualified to contest the election because-
(i) The 1st respondent was not the candidate nominated by the PDP for the said election; the candidate who was nominated was KINGSLEY PHILIP.
(ii) The Federal High Court NO.4 sitting in Abuja had in a judgment delivered in Suit No. FHC/ABJ/CS/220/2007 declared that the 1st respondent was not the candidate duly nominated by the Peoples Democratic Party for the said election. At the trial, the petitioner will rely and found on a Certified True Copy of the judgment in the said case.” (Underlining mine for emphasis).
The question that readily comes to my mind in respect of the foregoing and other facts in paragraphs 5 and 6 not fully reproduced but set out in pages 2 and 3 of the record of appeal is whether they are facts within the contemplation of S.145(1) of Act 2006.
A careful study of the facts relied upon by the appellant showed that they are at variance with the cognizable facts set out in S. 145(1) of Act 2006. What appears to have a seeming semblance to S.145(1)(d) of Act 2006 are sub-paragraphs (i) and (ii) of paragraph 5 of the petition. Thus, subparagraph (d) of paragraph I of S.145 of Act 2006 reads:
“(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
(Underlining mine for emphasis).
The type of nomination referred to in S. 145(1)(d) of Act 2006 is a valid nomination whereas the facts relied upon by the appellant to challenge the declaration of the 1st respondent as the winner of the election in issue is that he (the 1st respondent) was not nominated at all. The status of the 1st respondent as per the assessment of the appellant is that he was not nominated by the PDP for the election. This status therefore renders the facts in paragraph 5 of the petition outside the four justiciable facts and therefore non-justiciable, The vexed issue raised by the appellant is principally on non-nomination of the 1st respondent by the PDP, It is settled that the issue of who should be a candidate of any given political party at any election is clearly a political one to be determined by the rules and constitution of the said political party, It cannot be disputed that the issues of primaries, selection and nomination of candidates to contest an election at any given time is the exclusive preserve of political parties, Such issues are a “no go area” for the Election Tribunal or even the Court of Appeal if adequately raised before it. They are indeed intra party matters and non justiciable. Consequently, the Tribunal has no jurisdiction to hear and determine any issue relating to nomination of a candidate or substitution of the name of a candidate to contest as in the instant case, See ONUOHA V. OKAFOR (1983) 2 SC NLR 244; OGUNBIYI V. OGUNDIPE (1992) 9 NWLR (PT. 263) 24; CHUKWU V. ICHEONWO (1999) 4 NWLR (PT. 600) 587; ADEBUSOYE V. ODUYOYE (2004) 1 NWLR (PT. 854) 406, wherein the Courts and Tribunals declined jurisdiction on issues that bordered on nomination of candidates of political parties for election. I am of the strong view that the submissions of the learned counsel for the two sets of respondents that the issues raised by the appellant being pre-election matters are pungent and unassailable. They are accordingly ultra vires the jurisdiction of the Governorship and Legislative Houses Election Tribunal holden in Asaba. I thereby seriatim resolve Issue NO.2 in favour of the 1st respondent and the 2nd – 4th respondents.
In the final analysis, the appeal lacks merit and it is dismissed. The ruling of the Tribunal striking out the petition is affirmed.
I award costs of N130,000.00 to the 1st respondent and N20,000.00 jointly to the 2nd, 3rd and 4th respondents.
STANLEY SHENKO ALAGOA, J.C.A:
I have read before now the judgment just delivered by my brother Saka Adeyemi Ibiyeye (JCA) and I agree with the reasoning and conclusion reached. The appeal lacks merit and I also dismiss it and affirm the ruling of the tribunal below striking out the petition. I equally abide by the order on costs contained in the lead judgment.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.:
I have had the privilege of reading before now the judgment just delivered by my learned brother IBIYEYE, JCA. I entirely agree with all the reasons and conclusions in the lead judgment. I too would dismiss the appeal for lacking in merit.