OLADELE OLATUNJI V. DR. WOLE OLAKUNDE & 6 ORS. (2011)

Background

The Independent National Electoral Commission conducted the election for the Okitipupa/Irele Federal Constituency of Ondo State on 21 April 2007. Oladele Olatunji, the Labour Party candidate, received 4,438 votes, while Dr. Wole Olakunde, the Peoples Democratic Party candidate, received 112,358 votes and was declared elected. Olatunji filed an election petition on 21 May 2007, alleging unlawful exclusion through abduction and detention, corrupt practices, violence, non-compliance with the Electoral Act and that Olakunde was not elected by a majority of lawful votes. The National Assembly/Governorship and Legislative Houses Election Petition Tribunal dismissed the petition on 3 May 2008. Olatunji appealed.

On appeal, the respondents challenged the tribunal’s jurisdiction, contending that the petition was filed outside the 30-day period prescribed by section 141 of the Electoral Act 2006. The appellant also challenged the refusal to reopen his case after the first respondent and other respondents closed or declined to call evidence.

Issues

1. Whether the petition filed on 21 May 2007 was presented within 30 days from the declaration of the result on 21 April 2007.
2. Whether the tribunal’s refusal on 8 April 2008 to reopen the appellant’s case occasioned a miscarriage of justice.
3. Whether the appellant proved the alleged irregularities and non-compliance sufficiently to justify nullifying the election and ordering a fresh election.

Ratio Decidendi

Jurisdiction is a fundamental issue which may be raised by any party, by the court suo motu, at any stage, including for the first time on appeal. A party need not file a notice of appeal before raising an objection to jurisdiction. Paragraph 49 of the First Schedule to the Electoral Act 2006 concerns non-compliance with the Schedule and applicable procedural rules; it does not prevent an objection founded on non-compliance with the substantive statutory time limit in section 141.

Section 141 required an election petition to be presented within 30 days from the declaration of the result. Applying paragraph 50 of the First Schedule, Order 23 rule 1 of the Federal High Court Civil Procedure Rules and section 15(2)(a) of the Interpretation Act, the day of the event is excluded. Thus, where the result was declared on 21 April 2007, time began on 22 April 2007, and the petition filed on 21 May 2007 was within time. If the final day had been a Sunday or public holiday, filing on the next non-holiday would have been permissible.

The initial burden in an election petition lies on the petitioner, although the burden may shift as evidence is produced. A respondent may make a no-case submission on the evidence called by the petitioner. The fact that the respondents did not call further evidence did not entitle the appellant to reopen his case.

Court Findings

The Court of Appeal overruled and dismissed the preliminary objections. It held that the petition was not statute-barred and that the tribunal had jurisdiction to entertain it. The court rejected the appellant’s contention that paragraph 49(2) barred the jurisdictional objections because the respondents had taken further steps in the proceedings.

The court upheld the tribunal’s refusal to reopen the appellant’s case. The appellant was required to establish his allegations without waiting for the respondents to call witnesses. The evidence did not provide a sufficient basis for reopening the proceedings.

On the substantive allegations, the court found no compelling reason to disturb the tribunal’s conclusion that the election had not been shown to be invalid. In particular, the appellant failed to prove the case, including the required substantial effect of any alleged non-compliance on the election result.

Ngwuta, J.C.A., dissented on the limitation issue. He considered election-petition time limits strict and concluded that “within thirty days from” included the date of declaration, making the petition out of time and the proceedings a nullity. He nevertheless agreed, in the alternative, that the substantive appeal should be dismissed. Iyizoba, J.C.A., agreed with the majority.

Conclusion

The appeal was unanimously dismissed, with no order as to costs. The tribunal’s dismissal of the election petition therefore stood. The cross-appeal was struck out as withdrawn.

Significance

The decision confirms that objections to jurisdiction may be raised at any stage and without a notice of appeal. It also establishes the majority approach to computing the 30-day period under section 141 of the Electoral Act 2006: the declaration date is excluded, with the computation governed by the applicable procedural rules and the Interpretation Act. The judgment further clarifies that election-petition procedure does not relieve a petitioner of the initial burden of proving alleged irregularities and that a respondent may rely on a no-case submission.