Hon. Agboola Ajayi & Anor. V. Prince Olubukola Ebietomiye & Ors. (2009)

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CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A),

These appeals flow from two Election Petitions brought at the lower tribunal in respect of the election into the House of Representatives held on the 21st day of April 2007 for Ese-Odo/Ilaje Federal Constituency in which there were Seven Candidates including Mr. Agboola Ajayi (who stood under the platform of PDP) Omotoye Bayo (under the platform of the Labour Party) and Prince Olubukunola Tony Ebietomiye (under the Democratic People’s Alliance).

The first of the Petitions namely EPT/OND/NA/19/2007 was brought by Tony Ebietomiye against Seven Respondents namely; Agboola Ajayi, PDP, INEC and its officials, while the Second Petition No. EPT/OND/NA/24/2007 was brought by Omotoye Bayo against Eight Respondents including Ajayi Agboola, PDP, INEC and its officials. INEC also appealed in both Petitions.

At the end of the election Agboola Ajayi was returned as elected hence the two afore said Petitions.

The two Petitions were tried by two different Panels. The first i.e. EPT/OND/NA/19/2007 was by Justices Nabaruma, Okon, Okunbowa Goji and Umar. While the Second Petition i.e. EPT/OND/NA/24/2007 was tried by Justices Ikyegh, Elechi, Nimpar, Onwuamaegbu, and Maiwada. At the conclusion of trial in each Panel, each of the Panels nullified the election of Agboola Ajayi (1st Respondent in each of the Petitions) and ordered a fresh election.

Dissatisfied with each of the Judgments, the said Agboola Ajayi appealed against each of the Judgments; Appeal NO.CA/B/EPT/330/08 is against the Judgment in Petition NO. EPT/OND/NA/24/2007, while appeal NO.CA/B/EPT/343/08 is against the Petition in EPT/OND/NA/19/2007. INEC and its officials filed a Cross Appeal in Petition NO.EPT/OND/NA/19/2007 in CA/B/EPT/330A/08. The two appeals and the Cross Appeal were Consolidated by this Court and taken together since it was in respect of one election and one return. See Section.

All the sides in both appeals and Cross Appeals filed and exchanged briefs of argument. In his brief filed in appeal NO.CA/B/EPT/330/08, which though he did not formally adopt, the 4th Respondent, the Commissioner of Police Ondo State raised a preliminary objection touching on the jurisdiction on the lower tribunal on two grounds namely:

(1) “That the Petition NO.EPT/OND/NA/24/07 from which the appeal arose to this Honourable Court is incurably incompetent and lacked existence in law having been filed outside the statutory period of “within thirty days (30) days from the date the result of the election is declared” as provided for by Section 141 of the Electoral Act, 2006.

(2) That the Judgment of the lower Tribunal delivered on the 2nd of July 2008 which is the subject-matter of the appeal before this Honourable Court is void ab initio for lack of jurisdiction.”

The 1st Respondent also in his brief raised a preliminary objection to the competence of grounds 1, 2, 3 & 4 of the Notice of Appeal in appeal NO.CA/B/EPT/330/08. Since the objection of the 4th Respondent touches on the issue of jurisdiction of the lower tribunal to try the petition in the first instance, and jurisdiction being a threshold issue, which the Court can itself suo motu raise. I will deal with that issue first because its determination one way or the other will affect the appeal. See ALHAJI BARIBUDO NUHU v. ALHAJI ISOLARE OGELE (2003) 12 S.CNJ. 158.

The Complaint in the objection was that by Virtue of the Electoral Act Section 141, a Petition complaining of an election shall be presented within thirty days from the date the result of the election was declared. He argued that the result of the election having been declared on the 21st of April 2007, and the Petition having been filed on the 21st of May 2007, more than 30 days from the date of the declaration of the result, that Petition was clearly filed out of time, and therefore statute bared. Being statute bared, it was incompetent, the lower tribunal lacked the Jurisdiction to entertain it, and the Judgment based on it was void.

In his own brief in reply, the 1st Respondent in appeal NO.CA/B/EPT/330/08 (Petition NO.EPT/OND/NA/24/07) while agreeing that the election was held on the 21st of April 2007, stated that the result of the said election was declared on the 22nd of April 2007, and proceeded to argue that even if the Petition which formed the basis of this appeal was statute bared, it was too late to raise the point at appeal stage. He argued that the implication of a Petition that is statute bared was that such a Petition was a nullity, being a nullity he Contented, an application to set it aside, must be brought within a reasonable time by Virtue of Paragraph 49(2) of the 1st Schedule to the Electoral Act 2006. Learned Counsel likened a Petition filed out of time to one filed without the payment of the appropriate filing fees which will also be a nullity. Counsel then relied on authorities dealing with cases in which appropriate fees were not paid, and was thus held to be a nullity for which objections were overruled based on paragraph 49(2) afore said. Even though as I said earlier, the 4th Respondent did not appear to formally adopt his brief in Court, his written arguments are already before us, and we cannot close our eyes on those arguments that touch on a fundamental issue such as Jurisdiction. The Petitions, the subject of the complaints in the objection are before us, the dates of their filing as reflected in the Petitions are also before us. The statutory provision for the filing of Petitions is a point of Law and bothers on jurisdiction which the Court ought to take note of. Therefore, even if not raised by Counsel, the Court can raise the issue of jurisdiction suo motu. The Supreme Court has held that there is a DUTY and POWER of the Court to raise the issue of jurisdiction suo motu. See OLOBA V. AKEREJA (1988) 3 NWLR (PT.84) Page 508. Besides, the brief containing the objection was duly filed as required by the rules of this Court within time. This Court can therefore look at it, as adoption of brief in open Court is a formality.

Filing a Petition out of time, and filing one within time but without payment of appropriate fees are two distinct and different matters. One raises a consideration of the statute of limitation which bares an action, thus touching on the Competence of the action itself and the Jurisdiction of the Court to entertain the action. While the other does not raise the competence of the Suit and the Jurisdiction of the Court, but raises a point of mere irregularity. Statute of Limitation is a total bare to an action as a defence which makes an action that is bared under the statute completely, absolutely and totally incompetent, and therefore Jurisdictionally unintertainable, as against an action that is merely procedurally irregular which can be entertained upon a prescribed Cure of the irregularity.

Now Section 141 of the Electoral Act 2006 provides that an election petition under the Act shall be presented within thirty (30) days from the date the result of the election was declared. In my view, the requirement of presentation of an election petition within 30 days from date of declaration of result is a Mandation Creating a statute of limitation.