Yekini Olanipekun & Anor. V. Sulaiman Maito & Ors. (2006)

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PIUS OLAYIWOLA ADEREMI, J.C.A.

The 1st Petitioner (hereinafter referred to as the 1st appellant was a candidate for the bye-election into the Ondo state House of Assembly. He contested under the umbrella of the Alliance for Democracy, the 2nd Petitioner (hereinafter referred to as the 2nd appellant on the 26th of November 2005 in Akoko North West Local Government Constituency I. The 1st respondent who also contested the same election under the cover of the People’s Democratic Party, the 2nd respondent was returned as the winner by the Independent National electoral Commission (INEC) having, according to INEC, scored 5210 votes as against the votes of 1st Petitioner put at 3460 votes. Other contestants in the said bye election were L.O. Oyewole under NDP; he was said to have scored 9 (nine) votes; while Oloruntoba A.O. who contested under A.A. scored 79 (seventy-nine) votes. Dissatisfied with the result of the election, the appellant challenged the election before The National Assembly, Governor and Legislative Houses Election Petition Tribunal sitting at Akure, Ondo state.

The pleadings filed and exchanged among the parties are (1) petition dated 22nd December 2005 (2) 1st and 2nd respondents reply dated 8th February 2006, (3) petitioners/appellants reply to the 1st and 2nd respondents’ reply dated 20th February 2006 and 3rd – 41st respondents’ reply dated 20th February 2006.

After disposing some notices of preliminary objection, the substantive petition proceeded to hearing at the end of which in a considered judgment delivered of the 6th of April 2006 the lower Tribunal struck out the petition. In so doing, the lower Tribunal held inter alia: –

“Having held that the petition before the Tribunal was filed on 30/1/06, it is obviously outside the 30 days period allowed by the Act i.e. Section 132. The effect is that the petition is statute/time barred…….

As overwhelming as the evidence may seem, we can only say it is also unfortunate that no matter how well the case was presented, looking into whether the petition would have succeeded or not would be a mere academic exercise and an exercise in futility. The question of jurisdiction or lack of it is a serious one there is no compromise.

In conclusion, having held that the petition was irregularly filed and time barred, in consequence we hold that the petition is incompetent and the tribunal lacked the jurisdiction to entertain or hear same, no matter how well presented. There was nothing for the tribunal to adjudicate. The entire exercise of trial was an exercise in futility. In the present situation an order for striking out or dismissal has the same effect.

There is nothing for this tribunal to do than to strike out the petition. This petition is accordingly struck out.”

Being dissatisfied with the said judgment, the Petitioners/appellants appealed to this court by a Notice of Appeal dated 19th April 2006, which contains four grounds of appeal. Distilled from the aforementioned grounds of appeal are four issues which as set out in the appellants’ brief of argument I are in the following terms: –

(1) Was the petition regularly filed and within the competence and jurisdiction of the Tribunal to hear and determine?

(2) In the absence of the Constitution of the Membership of the Tribunal was the presentation for filing receipt and onward transfer of the petition by the High Court Registry and subsequent forwarding to the secretary of the Tribunal on 31/10/2006 valid, regular and in conformity with the expectation of the relevant laws?

(3) If as observed by the Tribunal the petitioners “are not to blame for the underassessment or lateness in payment” (assuming but not conceding that there was underassessment and lateness) was the tribunal then just in the circumstances to strike out a meritorious petition proved with uncontested evidence at the Tribunal because as if (sic) claimed it lacked jurisdiction?

(4) Were the respondent not barred from raising objection to the competence of the petition at the end of hearing?

The 1st respondent incorporated into his brief of argument dated and filed on 23rd June 2006 preliminary objection as to the competency of four grounds of appeal formulated by the appellant and identified only one issue for determination and as set out in his said brief of argument, it is in the following terms: –