Okon Bassey Imerh & Anor V. Obong (Barr.) Ime Bassey Okon & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

The Independent National Electoral commission (3rd Respondent) conducted elections into the Ibiono Ibom State constituency of the State House of Assembly, Akwa Ibom State on 26th April, 2011. The Action congress of Nigeria fielded Okon Bassey Imerh while the Peoples Democratic Party’s candidate was Barrister Obong Ime Bassey Okon, Mr Okon Bassey Imerh (1st Petitioner) and the Action Congress of Nigeria (2nd Petitioner) were not satisfied with the return of Obong Ime Bassey Okon (1st Respondent) as the candidate with the highest number of votes’ namely, 52,010 votes as against 4,433 votes credited to them by the 3rd Respondent hence they presented a joint petition before the Election Petition Tribunal at Uyo, Akwa Ibom State on the 18th May, 2011 praying for the cancellation of the result of the election.

The grounds were that the 1st Respondent was not duly elected by a majority of valid and lawful votes cast at the election. The petitioners further prayed for the Tribunal to hold that the election was not conducted in accordance with law and to order fresh elections.

Upon service of the petition the 2nd Respondent filed a reply on 06-06-2011 while the 1st Respondent did so on 07-07-2011. With leave of the Tribunal the 3rd Respondent (INEC) filed a Reply on 01-07-2011. The petitioners filed Reply to the issues raised by the 2nd Respondent on 09-07-2011.

On 16-07-2011 the petitioners filed a Reply to the 1st Respondent’s Reply. Furthermore, on the 20-07-2011 the petitioners again filed a Reply to the 3rd Respondent’s Reply. Following these developments the 3rd Respondent brought a preliminary objection to the hearing of the petition on the ground that since the election was held on 26th April, 2011 and the result declared the same day but the petition was presented on 18th day of May, 2011 this was outside the time stipulated by Section 235(5) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which reads as follows:

“285(5)An election petition shall be filed within 21 days after the date of the declaration of result of the elections.”

Learned Counsel appearing for the parties made copious submissions to the Tribunal on the 21-07-2011. On the 22-07-2011 the Tribunal ruled as follows:

“We have considered the submissions of 1st, 2nd and 3rd Respondents in this Petition. The petitioner’s counsel having walked out of court before the 3rd Respondent moved the preliminary objection. We have noted that the clear non-compliance with the provision of Section 255(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is an incurable defect in the petition before this Tribunal. We hereby grant the prayers of the 3rd Respondent, this petition is hereby dismissed for the said defect has robbed this Tribunal of the jurisdiction to entertain this petition or it is contrary to section 285(5) of the Constitution.”

On the 25-07-2011 the petitioner lodged an appeal before this Court on two grounds seeking that the dismissal of the petition be set aside and an order be made remitting the petition to be heard on the merit. Furthermore, that the 1st Respondent’s deposition in Reply to the petition be struck out as an abuse of the Court processes. Counsel formulated two issues for determination, namely, whether the Tribunal was right to have dismissed the petition under the provision of Section 285(5) of the Constitution supra and secondly, whether the petitioners were denied fair hearing “.

Learned Counsel to the 1st Respondent adopted the same issues in his client’s Brief of Argument. The 2nd Respondent’s issue one is whether the Tribunal had jurisdiction to have entertained the petition on the 18-05-2011 whereas the election held on 26-04-2011 and the result was declared the same day. There is no brief of argument from the 3rd Respondent.

Having read the briefs of the petitioners, and that of the leaned Counsel to the 1st and 2nd Respondents, I am of the humble opinion that the only issue for determination in this Court is whether the petition was filed within 21 days as stipulated by the provisions of Section 235(5) of the Constitution of the Federal Republic of Nigeria as altered.

I have already reproduced the provisions of section 285(5) of the constitution (as altered) to show that an election petition has to be filed within 21 days after the date of the declaration of result.

Though there was an argument by the petitioner’s learned counsel before the Tribunal as to whether the election held on 26th April, 2011 and the result was declared on 28th April, 2011 hence the petition was filed within time on 18-05-2011, it was pleaded by the Respondents’ Replies that the election was actually held on the 26th April, 2011 and the result declared the same day. This finds support in Forms EC8E(i) which the 3rd Respondent used declaring the result of the election on 26-04-2011, was pleaded and frontloaded. No oral evidence may be used to contradict, vary, alter or add to the contents of the said forms. See Section 132(1) of the Evidence Act, 2004; Unon Bank of Nigeria Ltd vs. Sax Nig. Ltd. (1994) 9 SCNJ; Union Bank of Nigeria Ltd v. Ozigi (1994) 3 SCNJ 41.

If the election was held on 26-04.2011 and the result was declared on the same day, to compute the 21 days, the day election held will be excluded. In Akeredolu v. Akinyemi (1985) 2 NWLR (Pt.10) 787 the Supreme Court held at page 794 per Aniagolu, JSC, that the date of the happening of the event, example, delivery of judgment must be excluded in computing time, citing Interpretation Act, 1964 where the legislature Section 15(2) (a) that: