CORAM

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ISA AYO SALAMI    JUSTICE, COURT OF APPEAL.

FRANCIS FEDODE TABAI    JUSTICE, COURT OF APPEAL.

SAKA ADEYEMI IBIYEYE    JUSTICE, COURT OF APPEAL.

BABA ALKALI BA’ABA    JUSTICE, COURT OF APPEAL.

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PARTIES

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1. WILSON ALATAHA2. FREDERICK OMAGHOMI APPELLANTS

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1. BENSON ASIN2. ISAAC WILKIE3. ELECTORAL OFFICER, WARRI NORTH LOCAL GOVERNMENT COUNCIL AREA, DR. S.T. NINEN4. RETURNING OFFICER, WARRI NORTH LOCAL GOVERNMENTCOUNCIL AREA, DR. S. I. ONWUKA5. INDEPENDENT NATIONAL ELECTORAL COMMISSION  RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Petitioners herein Appellants presented a petition to the Local Government Council Election Tribunal of Delta State sitting at Asaba, challenging the declaration of the 1st and 2nd Respondents who were returned as the Chairman and Vice Chairman respectively of Warri North Local Government in the election that was conducted into various Local Government Council throughout the country. The two sets of Respondents raised a preliminary objection to the petition on the ground that it was statute barred for failure to file same within fourteen days of declaration of the results and as such should be struck out in limine for incompetence. The Appellants on their part contended that the result was announced on the radio on 8th of December, 1998 hence it was filed within time and was not statute barred. The tribunal in a considered ruling struck out the petition on the ground that it lacked competence. Dissatisfied with the decision of the lower tribunal, the Appellants have appealed to this court.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the election petition was filed within fourteen days from the date on which the result of the election was declared pursuant to section 82 of Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998

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RATIONES DECIDENDI

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ISSUES FOR DETERMINATION – EFFECT OF ARGUMENT ON ISSUES NOT RELATING TO THE GROUND OF APPEAL

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“It is not permissible to canvass or tender argument on issues having no bearing with any of the grounds of appeal. See Madagwa v. State (1988) 5 NWLR (pt.92) 60 and in African Petroleum Ltd. v. Owodunmi (1991) 8 NWLR (pt.210) 391 at 423, it was held that any issue raised or argument canvassed on an issue not arising from a ground of appeal is incompetent and liable to being struck out”. PER I. A. SALAMI, J.C.A

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DECLARATION OF ELECTION RESULTS – WHETHER AN ANNOUNCMENT ON THE RADIO CAN SUFFICE AS A MEANS OF DECLARING AN ELECTION RESULT

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“The Local Government (Basis Constitutional and Transitional Provisions) Decree No. 36 of 1978 does not recognise radio announcement as mode or means of declaring an election result”. PER I. A. SALAMI, J.C.A

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APPEAL – AN APPEAL PRESUPPOSES THE EXISTENCE OF SOME DECISION WHICH IS APPEALABLE

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“An appeal presupposes the existence of some decision which is appealable”. See Babalola v. State (1989) 4 NWLR (pt.122) 70”. PER I. A. SALAMI, J.C.A

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STATUTE BARRED ACTION – DETERMINATION OF A STATUTE BARRED ACTION

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“In determining whether an action is statute barred it is always pertinent to ask for when time began to run. In the case of Fadare v. Attorney General Oyo State (1982) 4 SC 1, 1982 NSCC 52, 60 the Supreme Court referred to the case of Board of Trade v. Cayzer Irvine & Co. Ltd. 1927 A.C. 610 where it was held that –
“Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to succeed.” PER I. A. SALAMI, J.C.A

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“RETURN” – MEANING OF “RETURN” UNDER SECTION 99 OF THE LOCAL GOVERNMENT (BASIC CONSTITUTIONAL AND TRANSITIONAL PROVISIONS) DECREE NO. 36 OF 1998

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The word “return” is interpreted in section 99 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 to mean –
“the declaration by a Returning Officer of a candidate in an election under this Decree as being the winner of the election”. PER I. A. SALAMI, J.C.A

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FORMULATION OF ISSUES FOR DETERMINATION –ISSUES FOR DETERMINATION COULD ONLY BE FRAMED FROM COMPETENT GROUND OF APPEAL

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“An issue or issues could only be framed from a competent ground of appeal”. PER I. A. SALAMI, J.C.A

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PUBLIC DOCUMENT – EXAMPLES OF PUBLIC DOCUMENTS- SECTION 109 OF THE EVIDENCE ACT

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”The following documents are public documents –
(a) documents forming the acts or records of the acts –
(i) of the sovereign authority,
(ii) of officials bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere;
(b) public records kept in Nigeria of private documents”. PER I. A. SALAMI, J.C.A

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CASES CITED

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STATUTES REFERRED TO

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Evidence Act Cap 112 Laws of the Federation of Nigeria 1990Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998

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