Smart Kufre Obong Ekanem & Anor V. Paul Akpan Owo & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

The election that led to this appeal was held on the 26th day of April, 2011. The 1st appellant who was sponsored by the 2nd appellant was a candidate who contested the House of Assembly election for Ini State Constituency, Akwa Ibom State. The 3rd respondent who conducted the said election declared the 1st respondent as the winner.

Petitioners were dissatisfied and filed their petition on 18th May, 2011. It was registered as No. EPT/AKS/HA/30/2011. The 1st respondent challenged the competence of the petition as a preliminary issue on the ground that the petition was filed outside the 21 day allowed by s. 285 (5) of the 1999 constitution of Federal Republic of Nigeria. Arguments thereon were duly taken by the tribunal and at the end of it all, the tribunal found that the date of declaration of result of the election was 26th April, 2011 and not 26th April, 2011 as alleged or claimed by the appellants. The tribunal therefore dismissed the petition for being incompetent.

Petitioners were dissatisfied and hence appeal which was filed on 8th August, 2011. In the notice of appeal three grounds of appeal were raised. In furtherance thereto, the appellants filed their brief of argument on 19th August, 2011, while the 1st respondent filed his brief of argument on 9th September, 2011. The other parties do not have any validly filed briefs of argument before us in this matter.

The two issues raised in the appellant’s brief have, been duly considered. We however, hold the view that the competence of the petition as raised in the 1st respondent’s brief is more crucial. It is the law that an action before a court must be competent before the court can determine the same. One of the indices of competence is that the process must have been brought to Court under the aegis of due process of law without features therein’ militating against the said action.   In the instant case, the result/declaration of the election contained at pages 288 – 289 and Form EC 8E (1) on page 290 of the record show unequivocally, that the declaration of the result was made on 26th April, 2011. All the documents are certified true copies and therefore valid and admissible in evidence.

They are incapable of being contradicted by oral evidence.
Indeed, in the face of the said documents, the election tribunal was right to have Placed due reliance on the said documents. Thus, the tribunal was right to have resolved any perceived conflict by relying on the documentary evidence placed before it.

We are convinced and satisfied that the tribunal arrived at a correct decision with regard to the date of declaration of result in the instant case and the presentation of appellant’s petition thereon. The petition was clearly and glaringly filed in flagrant disobedience to the provision of  s. 285 (5) of the 1999 constitution. We have no basis to intervene and decide otherwise, since the decision of the tribunal is not in anyway perverse.

In conclusion the appeal lacks merit and the same is accordingly dismissed. N20,000.00 costs is awarded to the 1st respondent.

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Other Citation: (2011)LCN/4891(CA)

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