Israel Olu Olaniyonu V. Professor Awa Chairman, National Electoral Commission. & Ors. (1989)

LawGlobal-Hub Lead Judgment Report

AKANBI, J.C.A.

In this case, an election petition was on 6th January, 1988 lodged in the Registry of the High Court Abeokuta, Ogun State of Nigeria. The petitioner by his petition sought a declaration that he and not the 5th respondent was the duly elected candidate for the Kajola constituency of the Obafemi-Owode Local Government, and that the ‘declaration of result of Poll’ given to him was valid.

A preliminary objection to the hearing of the petition was taken by counsel to the respondents. The grounds of the objection were that the petition was statute barred in that it was not strictly ‘presented’ within one month after the date on which the election was held. It was contended that the necessary security for costs was not paid until the 27th January, 1988 well outside the one month allowed for the “presentation of a petition.”

Counsel to the petitioner however contended that the petition was presented on 6th January 1988 when he deposited it with the Registrar of the High Court whose duty it was to determine the amount to be paid; and that in any case, the court has power to enlarge time if for any reason it held that there was no due presentation of the petition. It did not appear however that any application for enlargement of time was filed or considered.

The trial Judge in a considered ruling, held that on the facts before him, the petition was presented not on 6th January 1988 as the petitioner’s counsel had argued but on 27th January, 1988 as the respondents’ counsel had canvassed. He also held that the petitioner did not, right to the time of hearing the objection, give any security for costs and as such the petition could not proceed to hearing. Accordingly, the objection was upheld and the petition was consequently struck out.

The petitioner was dissatisfied and so carried his case further to this court. His complaint is predicated on two grounds. The grounds of appeal read thus:-

“The learned trial Judge erred in law when he held that the petition of the petitioner was not presented within the time allowed by law when it is clear on the petition that it was presented to the Registry and was so stamped on 6/1/88 – a date which was within the period allowed by law and so came to a wrong decision in the Ruling he gave.

PARTICULARS

(1) Paragraph 2 of Schedule 3 of the Local Government Elections Decree, 1987 states that Election Petition shall be presented within one month after the date on which the election was held.

(2) The Local Government election was held in Kajola Constituency/Ward of Obafemi/Owode Local Government of Ogun State of Nigeria on 12/12/87.

(3) The petitioner presented the petition to the High Court Registry on 6/1/88 where he was asked to pay #2.00 each for the five copies he was asked to present.

(4) The petitioner paid #10.00 on court Receipt No. A582552 of 6/1188 and was so endorsed on the petition.

(5) Like in Civil cases, the Registrar calculates and tells any litigant the amount he has to pay.

(6) That on 27/1/89, the Registrar sent for the petitioner and asked him to pay #53.00 for further processing and #200.00 deposit for Security for costs.