Agbai Emmanuel Agbai & Anor. V. Independent National Electoral Commission & Ors. (2008)

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MOHAMMED LAWAL GARBA, J.C.A.

This appeal is from the decision of the Abia State Governorship and Legislative Houses Election Tribunal (hereinafter lower Tribunal) delivered on 4th August, 2007 in which the Appellants’ election petition was struck out on the ground that it was filed out of time.

The 1st Appellant and the 6th Respondent were candidates for the National Assembly election at the Bende Federal

Constituency held on the 28th of April, 2007. The Appellant was sponsored by the 2nd Appellant – All Progressive Grand Alliance – (APGA) a registered political party while the 6th Respondent was sponsored by the Peoples Democratic Party (PDP); the 7th Respondent in this appeal. At the end of the said election, the 1st Respondent, independent National Electoral Commission (INEC): the statutory body charged with the conduct of the election through its agents declared and returned the 6th Respondent as the winner of the election.

Being dissatisfied and aggrieved by the return of the 6th Respondent, the Appellants filed the aforementioned election petition before the Lower Tribunal on the 2nd of June, 2007 challenging same on the grounds set out therein.

After service of the petition on her, the 6th Respondent filed a reply thereto and on the 3rd of July, 2007 filed an application dated 29th June, 2007 seeking an order striking out the petition on the ground inter alia that it was filed outside the 30 days prescribed under Section 141 of the Electoral Act, 2006. Annexed to the affidavit in support of that application was a certified true copy of the Independent National Electoral Commission (INEC) form EC8E II: the declaration of election result form.

In reaction to the application, the Appellants filed a counter affidavit to oppose it and after a consideration of the written addresses filed in respect of the application, the lower Tribunal delivered the ruling the subject of this appeal.

The Appellants’ Notice of Appeal contained grounds of appeal from which learned counsel for the Appellants; Mr. Anyalechi Morgan, in the unpaged Appellants’ brief of argument filed on the 19th of October, 2007 formulated four following four (4) issues for determination:-

1. “Whether the Honourable Tribunal was right when it disregarded and failed to properly evaluate and consider all the exhibits of the Petitioner/Appellant, copiously showing a different date that it was on 2/5/07 not 28/4/07 that Bende Federal Constituency result was declared; and that 2/5/07 to 2/6/07 is within 30 days.
2. Whether having regard to the provisions of paragraphs 4 sub 6(D) of the practice Direction 2007 whether it was not of common knowledge to the electorates in Bende Federal Constituency and INEC Press release stamped and dated including the content did not sufficient (sic) show that the said election result was not declared on 28/4/07.
3. Whether the ruling of the Honourable Tribunal was against the weight of evidence
4. Whether the Honourable Tribunal gave a fair hearing to the Petition or based on technicalities.

In the 1st – 5th Respondents’ brief of argument filed on 21st January, 2008 but deemed properly filed on the 29th of January, 2008, it was submitted that the only issue before this court is whether the petition before the Tribunal below was statute barred. The brief like that of the Appellants’ is not paged.

For the 6th Respondent, a lone issue too was raised at page 6 of the 6th Respondent’s brief of argument filed on the 2nd of November, 2007 in the following terms:-

“Whether the Tribunal was right in its conclusion that the petition was not presented within 30 days from the date the Result of the Election was declared.”

Looking at the ruling of the lower Tribunal which is at pages 461 – 3 of the record of appeal along with the grounds of appeal, I am in agreement with the learned counsel for the Respondents that the crucial and relevant issue that call for decision in this appeal is in the terms formulated by the learned senior counsel for the 6th Respondents as set out above. The real and genuine grievance of the Appellants against the ruling of the lower Tribunal is no more than that their petition was struck out on the ground that it was statute barred or filed outside the 30 days time limit for the presentation of an election petition under the Electoral Act 2006. For that reason, I intend to consider this issue and the submissions of learned counsel thereon in the determination of the appeal.

Before then however, I have observed that the learned Senior Counsel who settled the 6th Respondent’s brief of argument has raised a preliminary objection at page 4 of the Respondents’ brief on the three (3) grounds set out at pages 4 & 5. All I need say about the grounds of the objection is that they are purely technical and do not affect the validity and competence of the Appellants’ Notice of Appeal. For the 1st ground, there is no doubt about the names and addresses of the parties affected by the appeals since the parties directly affected in this appeal are before the court and have reacted to the appeal. For the 2nd ground, though grounds 1, 2, 3, 4 & 5 are prolix and could have been framed in so many better ways the compliant in each of them is quite clear and conveys sufficient notice thereof to the Respondents. These and the ground 3 of the objection have been effectively taken care of by the adoption of the lone issue formulated by the 6th Respondents’ Counsel for the determination of the appeal. That apart, the attitude of the courts has for a long time now been to treat election matters as special in nature and character that technicalities are not allowed to frustrate hearing on the merits. For these reasons, the objection by the 6th Respondent to the Notice and grounds of appeal is overruled.

I now turn to the submissions of learned counsel on the germane issue in the appeal.