Patrick Ikharaiale & Anor. V. Theophilus Okoh & Ors. (2009)
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GEORGE OLADEINDE SHOREMI J.C.A,
The 1st Appellant duly contested the 21st April, 2007 National Assembly election under the platform of the 2nd Appellant for Esan West, Esan Central, Igueben Federal Constituency and was duly returned as the winner of the said election by the 3rd – 7th Respondents.
The 1st Respondent also contested the said election for the same constituency under the platform of the 2nd Respondent and came second in the polls.
Dissatisfied with the aforesaid result released by the 3rd – 7th Respondents, the 1st and 2nd Respondents on the 21st May, 2007 filed an election petition at the Governorship and Legislative Houses of Assembly Election Tribunal for Edo State seeking the nullification of the election.
The judgment of the Tribunal was delivered on 28th April 2008 nullifying the election of Patrick A. Ikhariale as member representing Esan Central, Esan West and Igueben Federal Constituency, Edo State. The Tribunal ordered the conduct of fresh elections into the constituency.
Dissatisfied with the said judgment, Patrick Ikharaiale and PDP who were 1st & 2nd Respondents at the lower court immediately filed a notice of appeal on 16/5/08. They are the Appellants in CA/B/EPT/222/08. Equally dissatisfied with some part of the judgment, Theophilus Okoh and the Action congress filed a notice of cross appeal on 19/5/08. The cross appeal was given the No. CA/B/EPT/221/08.
Consequent on the orders of this court, the two appeals have been consolidated as one appeal. The Appellants were granted leave to amend the notice of appeal on 4/2/09. Issues were joined by parties and briefs were filed by counsel in respect of the appeal and cross appeal. For the first time, the Appellant raised the question of the jurisdiction of the Tribunal below to hear the petition on the basis that the petition was statute barred.
Dr. Alex Izinyon SAN learned counsel for the Appellants distilled eight issues for determination stated as follows:
“1. Whether the learned Chairman and members of the tribunal were right in invalidating the deducting votes scored by the Appellants in the 3 Local Government Areas making up the Federal constituency. (Encompassing grounds 1, 2, 3 and 9 of the Notice of Appeal).
- Whether the Chairman and members of the tribunal were right on ordering a physical recount of the ballot papers used in the conduct of the election in Esan Central Local Government Area. (Encompassing ground 4 of the Notice of Appeal).
- Whether the Chairman and members of the tribunal were right in admitting and placing reliance on Exhibits 4 and 4A (Schedule of persons who were disenfranchised) in nullifying the scores of the 1st Appellant in Esan Central Government Area. (Encompassing ground 5 of the Notice of Appeal.
- Whether the Chairman and members of the tribunal were right in holding that the burden of proving the election held in the Constituency shifted to the Appellants having regard to the evidence led by the 1st – 2nd Respondents. (Encompassing grounds 6, 7, 8 and 15 of the Notice of Appeal).
- Whether the Chairman and members of the tribunal were right in canceling votes scored by the Appellants in Esan West Local Government Area without adducing any reason for such cancellation. (Encompassing ground 10 of the Notice of Appeal).
- Whether the Chairman and members of the tribunal were right in nullifying the entire result from Igueben Local Government Area on the ground that the Electoral Officer wrong dated the result. (Encompassing ground 11. of the Notice of Appeal.
- Whether the Chairman and members of the tribunal were right in nullifying the entire election in Esan Central, Esan West, Igueben Federal Constituency after holding that the 1st Appellant scored lawful majority votes cast at the election (Encompassing grounds 13, 14 and 16 of the Notice of Appeal.
- Whether having regard to the provision of Section 141 of the Electoral Act 2006, the petition filed by the 1st and 2nd Respondents was competent”
Mr. Ken Mozia learned counsel in different words and a few changes in emphasis distilled essentially the same issues for determination. The 3rd – 7th Respondents identified only 3 issues for determination similar in content with issues 1, 3 and 7 respectively already identified by Appellants’ counsel. I will adopt the issues identified by Appellant’s counsel already set out above in the consideration of this appeal. In the original notice of appeal, the appellant complained of recounting of votes in Esan West L.G. This is also the objection in the amended notice of appeal. However, in the Appellants’ brief, learned senior counsel talks on issue 2 about Esan Central L.G. rather than Esan West. Accounting to pg. 614 of the record, there was physical counting of ballot papers in respect of Esan Central L.G. I will thus consider the issue as it relates to Esan Central L.G. as argued by Appellants’ counsel as the appellants’ issues should drive the appeal.
Issue 8 is whether having regard to the provision of S.141 of the Electoral Act 2006, the petition filed by the 1st & 2nd Respondents was competent. Jurisdiction is a threshold issue which must be decided as soon as it is raised and it may be raised at any stage of the proceedings and even on appeal. See ALH. SAIDU ABDULSALAM V. ALH. ABDULRAHEEM SALAM (2002) 6 SCNJ 388. Where a court lacks jurisdiction no matter how well the trial is conducted, the trial would be a nullity. See JOHN EBHODAGHE V. CHIEF OMOKHAFE (2004) 12 SCNJ 175; CHIEF EUGBE V. CHIEF OMOKHAFE (2604) 12 SCNJ 106; ELABANJO V. DAWODU (2006) 6 SCNJ 204. The above is the general state of the law in adversarial jurisprudence. The jurisdiction of a court is determined by the constitution and the enabling statute. ONUORA V. KADUNA REFINERY & PETROCHEMICAL CO. LTD (2005) 2 SCNJ 179.
Thus, I will deal with the issue of jurisdiction first even though it is the last issue distilled for determination.
As the final court in election matters, the disposal of this issue would affect the appeal. Where an appeal is based on several grounds which include a ground raising issue challenging jurisdiction on a firm ground before the Court of Appeal sitting as a final court in an election petition appeal, it is unnecessary to consider arguments and decide other issues raised in the appeal after dealing with the issue of jurisdiction. If I find that the lower court lacked jurisdiction to hear the petition, there would be no need to go into the merit of the appeal proper ALH. BARI BUDO NUHU V. ALH. ISOLA ARE OGELE (2003) 12 SCNJ 158.
Learned senior counsel for the Appellants argued that the 1st Appellant was declared winner of the April 21″ Election on the same April 21st 2007. The case of the Appellants is that once an election result is declared, the cause of action is complete for any plaintiff in this case a petitioner, to file a petition. Counsel submitted that S.141 of the Electoral Act 2006 provides that an election petition must be presented within 30 days from the date the result of the election is declared. In calculating the 30 days, the cause of action would arise and time would begin to run from the day the result of the election was declared. Counsel argued that there is no room for sympathy or consideration of the merits of the case of the parties. Counsel submitted that the petition was filed a day after the limitation period, it had become statute barred and must be dismissed for want of jurisdiction. He cited AKUME V. LIM (2008) 16 NWLR PT.1114 PG. 490 at 502; ALATAHA V. ASIN (1999) 5 NWLR Pt 601 Pg. 32 at 44; OGBEBOR V. DANJUMA (2003) 15 NWLR Pt 843 Pg. 403 at 426-427; NYA V. EDEM (2005) 4 NWLR Pt 915 Pg. 345 and a plethora of other authorities on this point.
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