Suit Number:CA/B/EPT/127B/2008
Judges:GEORGE OLADEINDE SHOREMI JCA (Presided) ALI ABUBAKAR BABANDI GUMEL JCA ( Read the Lead Judgment) CHIOMA EGONDU NWOSU-IHEME JCA
Counsel:Chief Orbih - for the Appellant.
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Mr. Ricky Tarfa SAN - for the 1st and 2nd Respondents.
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GUMEL JCA (Delivering the Lead Judgment): Elections were held on 14 April 2007 to fill the seats earmarked for the Edo State House of Assembly. A number of political parties fielded and sponsored candidates to contest the election. The appellant herein, Mr. Anslem Agbabi was the candidate of the Peoples’ Democratic Party - PDP (3rd respondent/ appellant). The 1st respondent herein, Mr. Adjoto Kabiru was the candidate of the Action Congress - AC (2nd respondent/cross-appellant). After the
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elections and along the line, INEC (4th respondent herein) announced the results of the election wherefore it declared and returned the appellant as
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the duly elected candidate for the Akoko-Edo I Constituency of the Edo A
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State House of Assembly.
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The 1st and 2nd respondents were aggrieved with the result of the election. They filed a petition No. EDSA/EPT/16.07 before the Edo State Governorship and Legislative Houses Elections Tribunal. It is a 43 paragraph
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petition dated 10 May 2007, but filed on 14 May 2007. The petitioners B
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sought for the following reliefs. They are:
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An order invalidating the 17, 132 votes awarded to the 1st and 2nd respondents by the 3rd, 4th and 5th respondents in Akoko- Edo 1 Constituency election held on 14 April 2007, on the
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ground of corrupt practices or non-compliance with the provisions of the ElectoralAct, 2006; C
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An order that the 3rd and 4th respondents having cancelled the election in Akoko -Edo 1 Constituency are functus officio and therefore lack the power and authority to revalidate the cancelled election results; An order setting aside the revalidation of the results of the D Akoko - Edo 1 Constituency election and the award of the Akoko - Edo 1 Constituency seat of the Edo State House of
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Assembly to the 1st and 2nd respondents;
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An order directing the 3rd, 4th and 5th respondents to hold
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and conduct a by-election in Akoko - Edo 1 Constituency as E
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earlier decided and announced by the said 3rd, 4th and 5th
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respondents.
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Mr. Agbabi and PDP (as 1st and 2nd respondents) filed a 24 paragraph joint reply on 25 June 2007. They denied all the material averments in the petition.
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To this reply, the petitioners filed a response of 3 paragraphs on 6 July 2007 wherein they pleaded further facts and documents. The application of the F
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3rd - 5th respondents for leave to file their reply out of time was granted on 20 July 2007, and their 13 paragraphed joint reply dated 13 July 2007, was deemed as properly filed and served on 20 July 2007. They also denied the key and material averments in the petition.
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Issues having been duly joined, the tribunal (lower court) conducted G
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series of pre-hearing sessions at the end of which it formulated the following 3 issues as the principal issues for determination in the petition. They are:
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(1) Whether the petitioners have proved beyond reasonable doubt that the election held on 14 April 2007 in Akoko - Edo 1
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Constituency was marred by violence, falsification of results, H
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corrupt practices, fraud and electoral malpractices and
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substantial non-compliance with the provisions of the Electoral Act, 2006;
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(2) Whether or not the 3rd - 5th respondents have the right, after allegedly cancelling the election held on 14 April 2007, and fixing 28 April 2007 for a by-election to reverse that decision and subsequently announce the 1st respondent as the winner of that election, return him as the elected member of the Edo State House of Assembly for Akoko-Edo 1 Constituency and issued him a certificate of return; and
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(3) Whether or not the 1st respondent was duly returned as the winner of the Akoko-Edo 1 Constituency election into the Edo State House of Assembly held on 14 April 2007, having scored
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a majority of lawful votes cast at the election.
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After this, the petition went to full trial during which each of the sets of
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parties called and relied on both oral and documentary evidence. Also, during the trial, respective learned counsel for the parties filed and exchanged written addresses. In its judgment of 14April 2008, the lower court nullified the election and return of the appellant as the duly elected candidate for
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Akoko - Edo 1 Constituency of the Edo State House of Assembly. It went further to order for a by-election. The appellant was dissatisfied with this decision and appealed to this court challenging same on 12 grounds.
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The PDP also appealed the decision of the lower court on 6 grounds in a notice of appeal dated 2 May 2008. The 1st and 2nd respondents were
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also not satisfied with the decision in consequence of which they cross- appealed. After all the briefs were filed and exchanged, the 2 appeals were
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consolidated and the cross-appeal was taken and considered alongside. The 3rd-5th respondents filed a notice of preliminary objection to the competence of the cross-appeal. The appellant sought for and obtained the
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leave of this court on 2 March 2009 to amend his original notice of appeal
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by an addition of a new ground of appeal. This additional ground of appeal
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involves an issue of law that was not argued before the lower court. It pertained to the competence of the petition and the jurisdiction of the lower court to entertain it.
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Respective learned counsel filed and exchanged briefs of arguments. G Upon the leave granted to argue the fresh issue of jurisdiction on appeal, consequential amendments were made to the relevant and concerned briefs.
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At the hearing of the appeal, respective learned counsel identified, adopted and relied on their briefs of argument. Learned counsel Chief Orbih, for the appellant also took the liberty of the hearing to adumbrate on some of the
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H high pointsin the issues formulated for determination in this appeal. Learned counsel, Mr. Tarfa SAN, for the 1st and 2nd respondents also did on
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exposition of what he thought was necessary to be explained.
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From the original 12 grounds of appeal and the 13th additional ground,
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learned counsel Chief Orbih formulated 6 issues for determination in this A
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appeal. The first issue was formulated from the additional ground of appeal. It goes like this:
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“Whether having regard to the provision of section 141 of the Electoral Act, 2006, the petition filed by the 1st respondent
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was competent.” B
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Learned counsel argued this issue in paragraphs 4.03 to 4.24 at pages 7 - 12
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of his amended brief of argument.
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In opening his arguments, learned counsel, Chief Orbih referred to and reproduced the provisions of section 141 of the Electoral Act, 2006 as a foundation or his submission that it is the relevant provision that deals with
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the time frame within which an election petition must be filed. He identified C
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the time frame as 30 days. According to Chief Orbih, of counsel, the 1st respondent filed thepetition leadingto thisappeal on 14 May2007, challenging the result of the election held on 14 April 2007, into Akoko - Edo 1 Constituency of Edo State House of Assembly. He maintained that the
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appellant was returned and declared the winner of the election by INEC on D 14 April 2007. Upon this background and foundation, learned counsel submitted that in calculating the aforesaid 30 days, the cause of action in an
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election petition accrues from the day the result of the election being complained of was declared. He added that once the result was declared,
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the cause of action is complete and has fully accrued. He supported this E
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submission with the decisions in Akume v. Lim (2008) 16 NWLR (Pt. 1114)
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400 at 502, paragraphs F - G, Alataha v. Asin (1999) 5 NWLR (Pt. 601) 32 at 44, Ogbebor v. Danjuma, Kumalia v. Sherrif, etc.
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According to learned counsel, the declaration of result in this case
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was made on 14 April 2007. He added that by a simple arithmetical calculation, the 30 days allowed by section 141 ended on 13 May 2007. He F
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then submitted that to the extent that the petition was filed on 14 May 2007, it was one day out of time and therefore statute- barred. Further to this, learned counsel, Chief Orbih explained that the provision of section 141 is clear, plain and unambiguous, and he submitted that it must therefore be
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given effect in its ordinary, literal and natural meaning. He referred to G Attorney-General, Ondo State v. Attorney-General, Ekiti State (2001) FWLR (Pt. 79) 1431, (2001) 17 NWLR (Pt. 743) 706 at 756 as per Kutigi
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JSC (as he then was). He urged this court to give effect to the clear words contained in the provisions of section 141. After referring to a number of
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decisions of the Supreme Court and this court, Chief Orbih, of counsel, H
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urged thiscourt to hold thatthe petition filed by the 1st respondent challenging
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the declaration of the appellant as the winner of the election in Akoko-Edo 1 Constituency of Edo State House of Assembly of 14 April 2007 is
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incompetent for being statute-barred. He also further urged the court to accordingly dismiss same.
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Issue No. 1 in the amended brief of the 1st and 2nd respondents appears to me to be a reply to the arguments of the appellant on the issue of competence of the petition and the jurisdiction of the lower court to entertain
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same. It was argued in paragraphs 10.05 to 20.00 at pages 10 to 20 of the amended brief of the 1st and 2nd respondents.
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Learned counsel to the 1st and 2nd respondents opened his response with a tacit assertion that the petition at the lower court was competent and wasfiled within the period of 30 days provided by section 141 of the Electoral
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Act, 2006. Having set out this position, learned counsel explained that for
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time to begin to run against any aggrieved party to an election under the
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Electoral Act, 2006, there must be a declaration of result of the election, and time cannot begin to run until the result of the election was declared.
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According to learned counsel, the crux of the case of the 1st and 2nd respondents before the lower court and upon which evidence was adduced
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was that collation of votes was not made and the result of the election was not announced or declared. He went further to underscore the gravamen of the petition. He referred to paragraphs 21 and 34 - 38 of the petition as
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being the assertions of the petitioners that collation and declaration of results were not effected at the election on 14 April 2007, but in place of that INEC
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and its agents announced the cancellation of the election on 20 April 2007 and fixed a by-election for 28 April 2007. He added that rather than hold the
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advertised by-election, INEC returned the appellant as the winner without the by-election.
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Upon this background, learned counsel argued that INEC could not
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have declared result on 14 April 2007 and cancelled the election on 20 April
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2007. He argued further that the subsequent cancellation of the election by
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INEC made it impossible for time to run against the 1st and 2nd respondents from 14 April 2001. After these arguments, learned counsel submitted that the time to file the petition for purposes of section 141 enured to the 1st and 2nd respondents on 28 April 2007, when INEC failed to organize the by-
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election it earlier fixed but rather went to return the appellant as the winner of the election. Added to this, learned counsel pointed out that the lower court found the pleadings of INEC on this issue as vague and ambiguous
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and went on to find that the election in Akoko-Edo 1 Constituency was indeed cancelled. He further highlighted the finding of the lower court on
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the declaration of result Form (exhibit 7). According to learned counsel, the lower court found that exhibit 7 was not in existence on 14 April 2007 and
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neither INEC nor the appellant appealed against this finding. Learned counsel then submitted that INEC having admitted that the election did not
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hold and that they cancelled same and fixed 28 April 2007 for a by-election; A and the by-election having not held before the appellant was returned as the winner of the election time could not have begun to run on 14 April 2007.
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He maintained that time for filing the petition started to run on 28April 2007 and urged this court to so hold.
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Learned counsel to the 3rd respondent/appellant did not argue this B
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issue of jurisdiction in the 6 issues he formulated in his brief of argument
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dated 12 January 2009, but declared properly filed and served on 2 March 2009. His reply on points of law dated and filed on 6 March 2009 is neither here nor there as I do not find it helpful or of any significant assistance.
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Learned counsel to the 4th to 6th respondents (INEC and its staff) adopted the 6 issues formulated by the appellant. Learned counsel argued C
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the issue on jurisdiction and adopted all the arguments and submissions of the appellant on issues 2 to 6. In arguing the issue of jurisdiction, learned counsel referred to the cases of Alataha v. Asin and Ogbebor v. Danjuma after reproducing the provisions of section 141 and submitted that in the
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light of the undisputed facts in this action, the 1st respondent did not initiate D hispetition by due process of law as he did notfulfill the mandatory condition precedent to the exercise of jurisdiction by the lower court. Learned counsel
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argued that the petition was not presented within the period of 30 days as required by law.
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While still emphasizing the decision of this court in Alataha v. Asin, E
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learned counsel submitted that to the extent that the 1st respondent had
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failed to file his petition within thirty (30) days, the lower court is deprived of jurisdiction to hear and determine same. She argued that consequent upon this want of jurisdiction, the decision of the lower court remained a
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nullity and urged this court to set it aside.
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It is axiomatic that the issue of jurisdiction is very crucial in the F
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adjudication of any matter in a court of law. Its cardinal place has been emphasized and restated in a number of decisions of the Supreme Court and this court. And because of its fundamental nature and importance to the competence of adjudication, it can be raised at any stage of the
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proceedings in a matter even on appeal at the Supreme Court. It is so trite G that any proceedings embarked on without jurisdiction is a nullity and an exercise in futility.
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For the purpose of clarity, section 141 of the Electoral Act, 2006 provides: “An election petition under this Act shall be presented within
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30 days from the date the result of the election is declared.” H
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There is no doubt at all that this provision is a limitation of time stipulation. It
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allows for 30 days only within which to file an election petition. With respect to every situation where limitation of time is involved, the bottom line always
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is when does time begin to run and when does it end. It is always very important to put these two questions under proper focus and correct perspective.
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Over the years, the courts of this country have grappled with this issue in a number of decided cases in its variant forms. It is settled and well
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defined that time begins to run for purposes of limitation of time when a cause of action accrues to an aggrieved person. It is also settled that the
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cut-off period is reckoned from the date the cause of action accrued to the number of days, months or years provided under the relevant limitation of time enactment - as the benchmark. See Aina v. Jinadu . At its simplest of
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situations, it is a mere arithmetical exercise.
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It is however important and necessary, for the purpose of determining
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the limitation period in any given caseto consider the factsand circumstances of each case. This is because certain features of particular cases present unique settings that would require a unique approach. Against this background and in the course of time, this court has made a number of decisions on
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section 141 of the Electoral Act, 2006 and its, in pari materia provisions in the Electoral Act, 2002. What stands out as the settled position is that the words in section 141 are devoid of any esoteric or arcane connotation.
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They have been held to be clear and unambiguous. This court has also held that in the context in which each of the operative words of the section are
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used there is no need to resort to any external aids in their interpretation. This is now the extant guideline decided by this court in the interpretation
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and application of the section. See Sherrif v. Kumalia ; Ogbebor v. Danjuma ; Akume v. Lim ; Alataha v. Asin ; Action Congress & Anor. v.Jang; David Umaru & Anor. v. Aliyu; Ikhariale v. Okoh,etc.
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The combined effect of all these decisions and so many others based
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on them is that all election petitions must be filed within 30 days from the
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date of the declaration of the result of that election. And in the circumstance, 30 days mean 30 days only and no more. Some of these have gone further to decide that 30 days must include the last day even if it happened to be a Sunday or a public holiday. See Ikhariale v. Okoh (unreported) appeal No.
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CA/B/EPT/221/08 decided on 23 April 2009.
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Now coming to the facts and circumstances of this appeal against the backdrop of the extant decisions of this court. There appears to be a disagreement between respective learned counsel as to when the result of the election was declared. While learned counsel to the appellant and INEC
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are of the view that the result of the election was declared on 14 April 2007, learned counsel to the 1st and 2nd respondents maintained that the election
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in Akoko - Edo 1 was cancelled and therefore no valid result could have been declared on 14 April 2007 or any other date as the scheduled by-
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election was never held. A
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These divergent and opposing positions taken by respective learned counsel is exacerbated by the decision of the lower court that the declaration of result Form, exhibit 7 was not in existence on 14 April 2007. Though the lower court had decided on the date of declaration of result via exhibit 7, the
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issue of competence and jurisdiction to entertain the petition that led to this B
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appeal based on having been filed out of time was not raised, canvassed or
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argued. Consequent upon the leave granted to the appellant to raise the issue as a fresh point of law on appeal, it has now assumed a ubiquitous presence.
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Jurisdiction is the lifeblood of any action. It is crucial to adjudication.
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In Nigeria, our courts are creatures of the Constitution and/or statutes C
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wherein their powers and jurisdictions are provided. In consequence of this, they must adhere very strictly only to the jurisdictions and powers provided for them by the Constitution or statute. In this regard, courts have been admonished by the Supreme Court to espouse but not to expand the
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jurisdiction provided for them even while they proceed to guard same D
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zealously and jealously: Attorney-General, Lagos State v. Dosunmu .
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Further to the above, I am of the view that the issue of jurisdiction must be decided on undisputed credible facts because of its cornerstone effect in the adjudication of any matter. Therefore, for any decision or
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finding to be made for or against the jurisdiction of any court, the entire E
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circumstances must show and support a decision one way or another.
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With respect to the peculiar facts and circumstances of the instant appeal, it cannot be said with any certainty that the result of the election was declared on 14April 2007, in view of the allegations that the election
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was cancelled. There is therefore a very clear absence of a firm foundation upon which the date of declaration of result in this election can be built. In F
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order not to pre-empt or prejudice any of the parties, and also to avoid any miscarriage of justice, I hold that since the date of the commencement of the cause of action for purposes of limitation of time under section 141 cannot be ascertained with ease, it is safer to decide in favour of jurisdiction.
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I therefore now hold that the petition in this appeal was filed within the 30 G days provided by section 141 ( supra ). It is therefore within time and not statute-barred. Not being statute-barred, I hold further that the lower court
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had the necessary competence and jurisdiction to entertain same. The 1st issue is hereby decided against the appellant in favour of the 1st and 2nd
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respondents. H
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Having decided the 1st issue against the appellant and the 4th to 6th
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respondents, I now wish to proceed to consider the remaining issues argued in this appeal. Issue No. 5 as formulated by the appellant was distilled from
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grounds 6, 7 and 9 of the grounds of appeal. A decision on this issue is at the heart of this appeal. It is crucial. It goes thus:
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“Whether the honourable tribunal was right in nullifying the election based on an allegation that the election was cancelled.”
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This issue was argued by learned counsel to the appellant in paragraphs
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7.01 to 7.27 at pages 25 to 30 of the amended appellant’s brief. While referring to the provisions of section 145 of the Electoral Act, providing for
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the grounds upon which an election petition must be brought, learned counsel pointed out that the fact that an election or its result was cancelled is not one of such grounds recognized for invalidating an election. Learned counsel
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also referred to the groundsupon which this petition was brought. He referred
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to paragraphs 42(a) and (b) and submitted that the alleged non-compliance
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with the provisions of the Electoral Act were found not to be supported by the pleadings and accordingly struck out by the lower court. He then pointed out thathaving struck out the grounds of non-compliance with the provisions of the Electoral Act, what was left was whether the appellant was not duly
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elected by a majority of lawful votes cast at the election.
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Against this background, learned counsel submitted that the lower court was wrong when it nullified the election on the ground that the election was cancelled. While referring to section 27 of the Electoral Act, 2006, learned counsel explained that the power to postpone an election is
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exercisable only in limited circumstances. He referred to the definition of the word “postpone” in Blacks Law Dictionary, 7th Edition, page 1187
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and submitted that the elasticity of section 27(1), cannot be stretched or extended to a situation as in the instant case where an election took place and the results were declared by the returning officer.
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To drive the issue of cancellation of election home and lay it to rest,
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learned counsel referred to the oral evidence and depositions of RW7 and
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RW8. According to learned counsel, what emerged from the evidence of these 2 witnesses, was that there was a credible election at Akoko-Edo 1 Constituency on 14 April 2007 and the result was declared in favour of the appellant on the same day. He also maintained that the evidence of these
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witnesses was not shaken by cross-examination. He also referred to the declaration of result Form EC8E(1) which was tendered and admitted as exhibit 7.
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Issue No. 5 in the amended brief of the 1st and 2nd respondents was also formulated out of grounds 6, 7 and 9 of the grounds of appeal. In
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opening his arguments, learned counsel sought to put the records straight by highlighting what he considered to be the proper perspective upon which
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the lower court arrived at its decision. According to learned counsel, the lower court did not nullify the election based on the allegation that results
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were cancelled, rather it evaluated the evidence adduced before it and A found that there was no election in Akoko - Edo 1 Constituency on 14 April 2007. Learned counsel added that the lower court found that it was because there was no election that INEC fixed 28 April 2007 for a by-election, which to the amazement of all and sundry wasnot held, only for the appellant
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to be surreptitiously declared winner of the election. B
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While referring to exhibits I and 2 together with section 27(1) to (3)
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of the Electoral Act and the decision in Enemuo v. Duru (2006) All FWLR (Pt.304) 508 at 542, paragraphs E - G , learned counsel explained that INEC or any of its authorized officers can cancel an election and fix a future date
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for a by-election. While conceding that it is only an election tribunal that can upturn the decision of the returning officer once he has made a return but C
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went to submit that the circumstances of this case do not indicate that any voting, collation or announcement of result was made before the issuance of exhibits 1 and 2 by INEC.
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In another breath, learned counsel argued that even if exhibits 1 and
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2 do not show evidence of cancellation of an election, they, put together, D show evidence of an inconclusive election for which 28 April 2007 was fixed for by-election. He also maintained that the effect of the 2 exhibits was that no election or return of result took place before they were issued
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on 20April 2007.
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In conclusion, learned counsel argued that INEC has not appealed E
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against the decision of the lower court, nullifying the election and ordering a
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by-election. He added that the finding that there was no election was made against INEC and not against the appellant. He ended by emphasizing that though cancellation of election isnot a ground for bringing an election petition,
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cancellation of an election without complying with section 27(3) of the ElectoralAct, 2006 amounts to non-compliance with the provisions of the F
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Electoral Act and corrupt practices upon which an election tribunal can exercise its power to nullify the election.
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Issues No. 1 and 3 in the brief of the 3rd respondent/appellant appear to me to be the arguments and submissions itmade on this issue of nullification
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or cancellation of election. These issues were argued in paragraphs 4.01 to G
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5.44 at pages 10 to 21 of the brief. In arguing these issues, learned counsel reviewed the pleadings of the parties and the evidence in support of same and went ahead to challenge the process of tendering and admitting of exhibit 1 as well as the probative value attached to it. He urged the court to
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expunge exhibit l from the record as it is not a document upon which the H
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tribunal should have acted and relied on as far as the issue of cancellation
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of election was concerned. He added that if not because of the undue reliance placed on exhibit 1, the judgment of the lower court would have
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been different. He urged the court to resolve this question against the 1st and 2nd respondents/cross-appellants.
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With respect to issue No. 3, learned counsel also attacked the procedure adopted by the lower court and criticized its evaluation of the evidence before it and went further to urge this court to re-evaluate the
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evidence on record. Learned counsel re-produced certain parts of the oral evidence of the witnesses of the petitioners and the respondents and
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maintained that the lower court failed to evaluate them properly and in consequence of that came to wrong findings and conclusion. He urged the court to set aside the findings he itemized and resolve this appeal in favour
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of the 3rd respondent/appellant.
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Just as I pointed out earlier in this judgment, learned counsel to the
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4th - 6th respondents (INEC) adopted the arguments on issues 2 to 6 in the appellant’s amended brief; I would not like to make any further reference to same in order to avoid any undue repetition.
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I went through all the arguments in the respective reply briefs. I do
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not find them illuminating or of any significantassistance in the circumstance, I would therefore not venture into them for the time being.
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After an overview of the pleadings and the evidence adduced, the lower court formulated the following issues for determination at page 491 of the record. The issues are:
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(i) Did the 3rd - 5th respondents cancel the election and fix a date for a by-election? ) If the answer is “yes” did the said 3rd- 5th respondents become functus officio of the said election and thus prevented from declaring and returning the 1st respondent as the winner of
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the election?
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(i i) Was the election nevertheless invalidated by corrupt practices? Was the election invalidated by non-compliance with the provisions of the Act? Was the 1st respondent duly returned as the winner of the election? Though the formulation of these issuesappear to be abit clumsyand inelegant, they appear to fully arise for determination having regards to the state of the pleadings of the parties and the evidence led on them. Let it be noted
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that an appeal is not a new trial. Rather, it is another hearing but only based on the evidence already on record. Not any new evidence at all, except in
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the very rare situations when an appellate court grants leave to a party to adduce additional evidence on appeal. It is also not the business of an
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appellate court to interfere with the findings of a lower court, except where such findings are unreasonable, perverse or not supported by the evidence
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on record. A
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Appellate courts do not try cases of the parties. Trial of cases is effectively done at the court of first instance. The normal duty of an appellate court is to see whether issues presented to the trial court were properly resolved. An appellate court will not allow a different case from the one
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canvassed and argued at the trial to be pursued before it by any of the B
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parties, but will be concerned only to see whether the right procedure was
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followed, reasonable findings of fact made and the law correctly applied by the trial court: Oroke v. Ede (1964) NNLR 118; Ajadi v. Okenihun (1985) 1 NWLR (Pt. 3) 484; and Nwokoro v. Onuma (1999) 12 NWLR (Pt. 631)
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342, (1999) 9 SCNJ 63.
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Learned counsel to the appellant had sought to lay a very strong C
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emphasis on the oral evidence of RW7 and RW8 against the findings of the lower court that there was no election at Akoko - Edo 1 Constituency on 14 April 2007, and that exhibit 7 was not a credible document. I do not see anything wrong with these findings of the lower court because in the case
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of Lawal v. Terab , the importance of unit results in an election was D emphasized and recognized. Just like the lower court found, no unit results were produced before it to enable it to rely on to hold that there was a
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prima facie semblance of an election at Akoko - Edo 1 Constituency on 14 April 2007, or any other date at all. Because of the seaming partisan
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disposition of INEC and its staff in the circumstance of this matter, it would E
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be very dangerous to rely on the mere ipse dixit of RW7 and RW8 to
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decide on the crucial question of whether there was election at Akoko - Edo 1 or not on 14 April 2007.
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In the circumstance, and to that extent, I do not see any good reasons
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to interfere with any of the findings of the lower court.
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Learned counsel to the appellant and the 3rd respondent had attacked F
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the evaluation by the lower court of the evidence in exhibits 1 and 2. On this crucial exercise, the lower court held thus in its judgment at pages 16 to 17 contained at pages 493 to 494 of the record:
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“Counsel for the parties traded tackles on the admissibility of exhibit 2. The respondents urged the tribunal to reject the G exhibit on the grounds of improper custody and absence of a foundation;Alternatively, the tribunal was urged to attach little weight to it.
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The view of the tribunal is that the issue of “custody”
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and “laying of foundation” is with respect to counsel for the H
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respondents not really germane there; The respondents are
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however on stronger grounds in urging thetribunal notto attach much weight to it for reasons of lack of specificity in and
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about the video; the speaker was not positively identified, the date of the press conference was not stated and Akoko-Edo Constituency 1, Edo State House of Assembly was also not specifically mentioned in the video. For the foregoing reasons, the tribunal finds it unsafe to act on exhibit 2 by itself. In contrast, exhibit 1 page 3 does not suffer from the aforesaid ailments.
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The main features of exhibit 1 are as follows:
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It is in the form of a paid advertisement as distinct from a newspaper reporter’s coverage of an event. It is signed or shown to be authored by ‘Mohammed Abubakar
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Ahmadu, Resident Electoral Commissioner, INEC, Edo State.’
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3. It is headed ‘Declaration of Results of Edo State House of
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Assembly Election.’
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It states unequivocally, inter alia, ‘the election results of Ako ko -Edo 1 , AKo ko -Edo I I an d Ets ako Cent ra l Constituencies elections were however cancelled due to large scale use of arms, thuggery, hijack of election materials and personnel ...’ It listed 20 names of candidates who were duly elected at the election of 14April 2007, and their respective constituencies but left out the elected candidates for four constituencies namely Akoko-Edo 2, Etsako Central and Oredo East. As if for avoidance of doubt, it also lists Akoko-Edo 1, Akoko-
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Edo 2 and Etsako Central under the caption of ‘cancelled results’ and Oredo East under the caption of ‘inconclusive election.’
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Section 28(2) of the Act lists the officers of INEC from the lowest unit
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(polling unit) which is headed by a presiding officer to the state level which
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is the REC. Under the said section 28(2) of the Act, a Resident Electoral Commissioner is the highest ranking INEC staff in a state. That is the logical inference from the provision. Therefore, the aforesaid publication is a most authoritative proclamation which was made on 20 April 2007, i.e.
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almost one year ago by the senior INEC official in Edo State at the time.
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The respondents did not offer any countermanding publication nor put forward any evidence whatsoever modifying, retracting, qualifying, denying or in any way diminishing the credibility or truth of the contents of the publication.
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After this summation and observation, the lower court went on to hold: “the petitioners have discharged the burden on them to prove
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on preponderance of evidence, that on 20 April 2007, Mohammed Abubakar Ahmadu, the Resident Electoral
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Commissioner for Edo State, as he then was, cancelled among A others, the election, the subject matter of this suit and fixed 28 April 2007 as the date for a by-election.”
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(See page 18 of judgment at page 495 of record of appeal).
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Apart from these, I have considered the findings and decisions of the lower
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court on exhibits 3, 4, 5,6 and 7 and the various steps taken before such B
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decisions were made. Atthe risk of prolixity, I wish to reproduce the findings
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at pages 511 - 512 and 513 of the record of appeal thus:
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“No witness gave evidence at the trial that he/she voted by tendering the voters’ register to show that his/her name was ticked or tendering his/her voters card with any appropriate
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endorsement evidencing that the owner voted. See on this C
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I.N.E.C. v. Ray (2004) 14 NWLR (Pt. 892) 92.
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Production of Form EC8A duly completed is one direct way of proving the votes scored at a polling unit and is also evidence that election was held in a polling unit. It was held by
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the Court of Appeal in the case of Nwole v. Iwuagwu (2006) D
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All FWLR (Pt. 316) 325, that Form EC8A is very important for the conduct of an election because votes recorded therein form the base of the pyramid in the process of collating an election result. See also Omoboriowo v. Ajasin (1984) 1 SC
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206. E
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In this case no Form EC8A, the result sheet of election
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in a polling unit, was tendered by any of the respondents at the trial. Exhibits 3, 4, 5 and 6 dated 144 - 2007 are Forms EC8B, the summary of results from the polling stations in respect of
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four of the five wards making up the constituency. They were tendered by the respondents apparently in proof of the scores F
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at the election, but on what premise were they recorded?
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Their foundation had to be rooted in Form EC8A which as noted above was never produced. “You can not put something on nothing and expect in to stand, it will fall.” Per
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Lord Denning, Mr. Mcfoy v. U.A.C. (1961) 3 All ER 1169 at G
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1172, paragraph l, lines 8-9.
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Furthermore, there is a column for the signature of party agents at the bottom of these exhibits. Only in one of the four (exhibit 4) was there a solitary signature of one unidentified
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party agent. The other three collation sets, exhibits 3, 5 and 6 H
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were not signed by any agent; Not even by the agent of the
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1st and 2nd respondents who were declared the winners. Still, more significant is that not a single collation officer testified to
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show the basis on which their collations were founded. The matter is not assisted by the admission under cross-examination of DW8 (who did the return and signed exhibit?), that he did not witness the collation of results.
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Undoubtedly, the 3rd-5th respondents are statutory
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umpires at an election. They are funded by the public and owe a responsibility to that public to be fair and even handed.
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Unquestionably, they have powers to postpone or reschedule elections in given circumstances.
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Section 27(1) of the Act provides inter alia that where
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a date has been pointed for the holding of an election...if it is
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impossible to conductthe election as a result of natural disasters
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or other emergencies, the commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election... It is to be noted that the person who may postpone is the
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commission; stated earlier on in this judgment, the REC is the highest ranking INEC official in a state. No one is therefore better qualified than him to exercise that power. If a REC can
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postpone an election on good grounds, why can he not cancel elections on good grounds as for instance “large scale of arms,
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thuggery, hijack of election materials and personnel” as here? In any case, it is significant to note that none of the respondents
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questioned the power of REC to cancel elections. The issue was whether he did so. No one has questioned his authority to issue exhibit 1 as at today -about 1 year after it was issued.
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The office of REC is that of perpetual succession and the
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decision of the REC binds his successor-in-office.
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Notwithstanding therefore that the REC left Edo State for Ondo State, his decision in exhibitsurvived him. That decision is extant and the respondents must be held to the decision, which was published to the world. It has been submitted with
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commendable zeal by counsel for the respondents that exhibits 3, 4, 5, 6 and 7 are presumed correct under section 149 of the Evident Act, but the presumption is rebuttable. The returns of
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returning officers were upturned in U.B.A. v. Ikachukwu ,
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I.N.E.C. v. Ray and host of other cases following findings of
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preceding irregularities.
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When as in this case votes are ascribed to candidates in
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respect of a cancelled election, clearly those votes cannot be lawful votes because they have nothing to stand on; Lord
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Denning’s famous dictum in Mcfoy v. U.A.C. (supra) again A applies. The votes allotted to the petitioners and the 1st respondent, be and are hereby voided.”
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Learned counsel to the appellant had made elaborate submissions on exhibit
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So also learned counsel to the 1st and 2nd respondents. This exhibit 7 is
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the final Form in which the final total scores of votes of respective candidates B
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in an election are shown. It is the most relevant document for purposes of
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determining when the election results were declared. This relevance is founded on principle that where a document is received in evidences of interpreting its contents. Also, where a document exists and is tendered and
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admitted by the court in the course of trial, this prima facie entitles the court to have recourse to it and make use of same in the resolution of C
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disputes between the parties: F. B. N. Plc. v. Ibennah (1996) 5 NWLR (Pt.
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451) 725 and Ngwu v. Nnaji (1991) 5 NWLR (Pt. 189) 18.
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I have had the opportunity of considering this exhibit 7, alongside all other available evidence in this matter, and I have not been able to see anything wrong in its evaluation and the probative value or whatever that D was ascribed to it by the lower court. Added to this, there has not been any serious complaint on the finding on it by INEC, as it was indeed a very significant and profound finding on the conduct of INEC and it officials. All the arguments of learned counsel against the finding that exhibit 7 was not
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in existence on the 14April 2007are not far-reaching and convincing enough E
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to dislodge the meticulous consideration and finding on it by the lower court.
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Learned counsel to the appellant and the 3rd respondent made spirited efforts to impugn the evaluation of evidence by the lower court. All their efforts do not appeal to me as proper in the circumstance. They are
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perfunctory and totally misplaced and effectively misleading. I reject them
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in totality. I find the steps and ideas employed by the lower court as F
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imaginative and correct. I have also taken a very close look at exhibits 2 - 7 and I am fully satisfied that they were correctly evaluated and findings made on them remain impeccable and without blemish. Those findings are not unreasonable or perverse in the circumstance. I do not see any good reason to interfere with those findings. This issue on evaluation of evidence G is resolved against the appellant.
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Having resolved this issue against the appellant, there does not appear to be any need to consider the remaining issuesin this appeal as the resolution of issue No. 5 has sufficiently disposed of this appeal. This appeal lacks
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merit and it is hereby dismissed. I also do not see any need to go into the H
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issues raised and argued in the cross-appeal of the 1st and 2nd respondents.
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It is also accordingly dismissed. The decision of the lower court is hereby affirmed and it is ordered as follows:
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All FWLR Agbabi v. Kabiru (Shoremi, Nwosu-Iheme JJ.CA) 155
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(1) The purported election and return of the appellant, Mr. Anslem Agbabi by INEC is hereby declared invalid on the grounds that he was not duly elected;
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(2) The certificate of return issued to the appellant by INEC is hereby set aside and cancelled;
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(3) The appellant is hereby ordered to vacate the seat of Akoko - Edo 1 Constituency in the Edo State House of Assembly
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forthwith; and
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(4) The 4th respondent (INEC) is hereby ordered to conduct a by-election to fill the vacant Akoko - Edo 1 Constituency seat in the Edo State House of Assembly within 45 days. There
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shall be no order for costs.
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SHOREMI JCA: I agree with the judgment and the consequential orders made.
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NWOSU-IHEME JCA: I agree.
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E Appeal dismissed
