Chief G. Tagbo Ike V. Peoples Democratic Party & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This appeal presents similar facts and circumstances with Appeal No. CA/E/EPT/07/09 with the difference that the appellant in Appeal No. CA/E/EPT/07/09 was the candidate for the Action Congress in the election to the House of Representative for Orumba North/South Federal Constituency while the present appellant was the candidate for the All Peoples Grand Alliance (APGA) in the same election. In both cases the names of the PDP candidates were not known before the declaration of the election results. As a result of this development, an earlier election petition tribunal ruled that there was no declaration of result as at 28/04/07.

Petitions presented to a subsequent tribunal after the courts have declared the names of the proper candidates of the PDP were held to be statute barred. The arguments that a previous election tribunal had ruled that there was no declaration of result or that the certificate of return could be equated with the declaration of result were rejected.

The following briefs are relevant for the determination of the appeal:

1. Appellant’s Brief of Argument dated 7th August, 2009, and filed on the same date – settled by C. Chuma Oguejiofor, Esq.
2. 1st Respondent’s Brief of Argument dated and filed on 25/2/10 – settled by Ikechukwu Maledo, Esq.
3. 2nd. Respondent’s Brief of Argument incorporating Notice of Preliminary Objection dated and filed on 15/9/09 – settled by G. Ofodile Okafor, SAN.
4. 4th – 431st Respondent’s Brief of Argument dated 3/3/10 and filed on 4/3/10 – settled by S. O. Ibrahim.
5. Appellant’s Reply to the 1st Respondent’s Brief of Argument dated and filed 2/2/10 – settled by C. Oguejiofor, Esq.
6. Reply Brief of the Appellant to the 2nd Respondent’s Brief of Argument dated and filed 18/9/09 – settled by C. Oguejiofor, Esq.
7. Reply Brief of the Appellant to 4th – 431st Respondent’s Brief of Argument dated and filed 11/3/10 – by C. Oguejiofor, Esq.

First, in this appeal I have considered the preliminary objection raised by the 2nd respondent and have come to the conclusion that the items of preliminary objection by the learned senior counsel for the 2nd respondent are mere irregularities which do not go into the substance of the appeal, the preliminary objection by the 2nd respondent is accordingly overruled.

In the main appeal, the case for the appellant shall be placed on one side of the scale while the case of the 1st, the 2nd and the 4th – 431st respondents shall be put on the other side of the scale as the case of the respondents. This is because of the shared common interest in the case of the respondents and also for reasons of convenience.

This appeal, shall be decided on the issues nominated by the learned counsel for the appellant as follows:

“(i) Whether the tribunal was right in holding as it did that the result of the election to the Orumba North/South Federal Constituency was declared on 28/4/07 when the first tribunal that had entertained the case had determined that no such result had been declared for the same Federal Constituency on 28/4/07 which determination or decision has not been set aside or even been a subject of an appeal at all.

(ii) Whether the return made by the Chairman of INEC on 6/3/09 was not a declaration of result of the election since a winner in the election had not emerged before that date and whether time for filing an election petition can start running before an appropriate Election Petition Tribunal has been constituted with a secretariat in place to receive the Election Petitions.”

On Issue No. 1, in the instant case as was the case with Appeal No. CA/E/EPT/07/09, there is no better way and perhaps better words to convey to the appellant that his tardiness in not filing an appeal against the Ruling of the 1st Tribunal led to the present quagmire. This is because, the 1st tribunal was clearly in error to have struck out the petition of the appellant on the ground inter alia that “no person has been declared the winner of the election” when in fact the Returning Officer had declared the PDP as the winner of the majority votes in the election on 28/4/07. Clearly, the lower tribunal was not wrong for refusing to follow an erroneous view of a court of coordinate jurisdiction.

Issue No. 1 is resolved against the Appellant.

On Issue No. 2, the distinction made between a declaration of result properly so called and a certificate of return as a confirmation of the conclusiveness of the election made by the lower tribunal is unassailable.

Clearly, the Certificate of Return do not qualify as a declaration of result within the meaning of Section 28(2) (e) and 70 of the Act.

Section 28(2) (e) of the Act provides: