George Akume & Anor V. Chief Dr. Simon A. Lim & Ors (2008)
LawGlobal-Hub Lead Judgment Report
UZO NDUKWE-ANYANWU, J.C.A.
Elections into the Senate were held nationwide on the 21st April, 2007. Seven (7) candidates sponsored by various Political Parties contested the election into the Benue North West Senatorial District. At the conclusion of the election, George Akume who was sponsored by Peoples Democratic Party (PDP) herein after referred to as the 1st Appellant was declared winner on 22nd April, 2007 having scored a total of 532,671 votes and was returned.
Being dissatisfied Chief Dr. Simon Azeghedse Lim sponsored by Action Congress (AC) hereinafter referred to as 1st Respondent filed a petition before the National Assembly/Governorship and Legislative Houses Election Tribunal holden at Makurdi Benue State on 22nd May, 2007.
(2) ISSUE TWO
Whether the refusal of the Tribunal to dismiss the petition is valid in law when the Petitioners failed to comply with paragraphs 3, 6(2) and (4) of the Election Tribunal and Practice Directions, 2007. (Distilled from Grounds 2 and 3).
(3) ISSUE THREE
Whether the petition is not incompetent for non-joinder of persons against whom allegations had been made in the petition and for non-compliance with the Oaths Act and Evidence Act thus depriving the Tribunal of jurisdiction to entertain the petition. (Distilled from Grounds 4, 5, 6 and 17).
(4) ISSUE FOUR
Considering the provisions of Section 32(1) and 144(1)(a) of the Electoral Act, 2008 and the provision of paragraph 4(1)(b) of the 1st Schedule to the Electoral Act, 2006 whether the 1st Petitioner does not lack the locus standi to present the petition and thereby deprive the Tribunal of jurisdiction to entertain the position. (Distilled from Grounds 11 and 26).
(5) ISSUE FIVE
Considering the totality of the case as contested by the parties before the Tribunal, whether the Tribunal was right when it held that, the Respondents to the petition admitted the malpractices alleged by the Petitioners. (Distilled from Ground 7 of the Grounds of Appeal).
(6) ISSUE SIX
Whether the Petitioners established the allegations contained in their petition which are criminal in nature beyond reasonable doubt as required by law. (Distilled from Ground 12 of the Grounds of Appeal).
(7) ISSUE SEVEN
Whether or not the Tribunal was right in expunging all the documents tendered before it by DW11. If the answer to the question is in the negative does it not amount to infringement of the Appellants’ right to fair hearing, considering the fact that the documents were pleaded by the Petitioners? (Distilled from Grounds 8 of the Amended Notice of Appeal).
(8) ISSUE EIGHT
Whether the Tribunal had jurisdiction to embark on ex-curiae reduction of Exhibit 20B to a table and to use the information fed into the table by itself in nullifying the election of the 1st Appellant. (Distilled from Ground 9 of the Amended Notice of Appeal).
(9) ISSUE NINE
Whether the judgment of the Tribunal is not a nullity when same was not based on the grounds and facts pleaded by the Petitioners but on grounds and facts that were not pleaded. (Distilled from Grounds 10, 13, 14, 15, 16, 19 of the Amended Notice of Appeal).
(10) ISSUE TEN
Having regard to the pleadings and evidence placed before the Tribunal, whether or not the Tribunal properly evaluated the evidence placed before it in arriving at its judgment. (Distilled from Grounds 18, 20, 21, 22, 23, 25 and 27 of the Grounds of Appeal).
(11) ISSUE ELEVEN
Whether the failure of the Tribunal to pronounce on all the issues raised by the Appellants before it does not amount to denial of fair hearing. (Distilled from Ground 24 of Amended Notice of Appeal).”
The 1st and 2nd Respondents also filed a notice of appeal being dissatisfied with part of the decision of the Lower Tribunal. This was filed out of time and consequently struck out. The 1st and 2nd Respondents also filed a notice of Preliminary Objection and the arguments thereof in their brief of argument filed on 21st May, 2008. The 1st and 2nd Respondents subsequently filed their joint brief of arguments on 8th May, 2008 and formulated nine (9) issues for determination hereunder.
(1) “Whether or not the petitioner (1st- 2nd Respondents) petition was/is statute barred. (Ground 1).
(2) Whether or not the provisions of paragraphs 6(2) and (4) of the Election Tribunal and Court Practice Directions, 2007, also applies to matters relating to application to scheduling under paragraph 3(1) of the said practice Direction (see grounds 2 and 3).
(3) Whether the Petitioners 1st – 2nd Respondents) were under any mandatory requirement of law, to join all persons against whom allegation had been made. (See grounds 4, 5, 6 and 17).
(4) Whether or not the provisions of the Evidence Act, and or Oath Act in the face of the Election Tribunal and Court Practice Amendment Directions, 2007 were not complied with, (see grounds 4, 5, 6 and 17).
(5) Whether or not the Tribunal was right in holding that the Respondents (Appellants) admitted the malpractices alleged by the Petitioners (1st – 2nd respondents). (See ground 7 of the Grounds of Appeal).
(6) Whether or not the Tribunal was right in expunging all the documents tendered before it by DW11. (See ground 8 of the Grounds of Appeal).
(7) Whether the Tribunal rightly examined all exhibits tendered by the petitioners (1st – 2nd Respondents) particularly Exhibit 20B before it.
(8) Whether or not the judgment of the Tribunal was based on pleaded facts and evidence adduced before it, and whether the said evidence was properly evaluated when it gave judgment in favour of the petitioners (1st – 2nd Respondents).
(9) Whether or not the Lower Tribunal was right in holding that, the 1st Appellant was qualified to contest for the Senatorial Election of Benue North-West District in the face of his indictment by the Code of Conduct Bureau, and his subsequent trial by the Code of Conduct Tribunal.”
The 3rd – 1253 Respondents filed a notice and seventeen (17) grounds of appeal. They formulated four (4) issues for determination namely thus: –
(1) Whether or not the lower Tribunal had the jurisdiction to hear the petition and determine it on its merit. (Distilled from ground 4 and the inherent jurisdiction of the court).
(2) Whether or not the petitioners proved the five (5) grounds in support of their petition to warrant the order of nullification made by the lower Tribunal. (Distilled from grounds 5, 6,7, 8,9,10, 11,12,13,14,15 and 16).
(3) Whether or not the lower Tribunal was right in expunging all the relevant documents tendered by the DW11, and admitted without. (Distilled from ground 17).
(4) Whether or not the lower Tribunal Misdirected itself in law when it hold thus:
(i) “All the respondents either intentionally or unintentionally have admitted the malpractices.
What is admitted needs no further proof?”
(ii) “We are therefore left with only voters registers, tendered by the petitioners exhibit PW20 B. We now proceed to examine these registers available and our findings are thus.”
(iii) “There were 5 elections in the country in April, 2007 and the election into the Senate was one of the last of the elections. This Tribunal in Petition No. BE/EPT/HR/20/07 CHRISTIAN ABBA & ANOR V. HON. AUGUSTINE ADIKPE & ORS decided on 21/1/2008 and Petition No. BE/EPT/HR/22/07 ANDREW WOMBO V. HON. MZENDA IHO & ORS decided on 22/1/2008 held that for marking in the last elections like the present one to be proper, there must be 5 ticks on the registers in respect of any voter who has voted:” (Distilled from grounds 1, 2 and 3)
Each of the two sets of Appellants has formulated an issue bordering on jurisdiction of the Lower Tribunal to hear this petition it being statute barred. This issue I will consider before looking at the other issues formulated to determine whether it has merit or not.
In arguing this issue the learned Senior Advocate of Nigeria referred the Court to Section 141 of the Electoral Act 2006 which provides:
“An election under this Act shall be presented within thirty (30) days from the date the result is declared.”
Counsel submitted- that the election into the Benue North West Senatorial Seat was conducted on 21st April, 2007. The results were announced by the 3rd Respondent on 22nd April, 2007. The Petitioners presented their petition on 22nd May 2007. In interpreting Section 141 of the Electoral Act 2006, Counsel reiterated that the cardinal principles of interpretation of a statute are to give the words of a statute, their grammatical and ordinary meaning. See Obi V. INEC (2007) 11 NWLR Pt. 1046 pg 565 at 643. Counsel submitted that the thirty (30) days prescribed by the Act expired on 21st May, 2007. The petition presented on 22nd May 2007 was presented a day after the expiry date. He referred the Court to Ogbebor V. Danjuma (2003) 15 NWLR Pt. 843 pg 403. Counsel urged the court to follow our decision in Hon. Barr. Mohammed Umara Kumalia V. Ali Modu Sheriff – CA/J/EP/GOV/244/2007 delivered on 21st January, 2008 though still unreported. See also the unreported case of Action Congress & 1 Ors. V. Jonah David Jang & 9 Ors CA/J/EP/GOV/275/2007 delivered on 26th February, 2008.
Counsel also submitted that the express provisions of the Electoral Act 2006 do not contemplate the application of the Interpretation Act or Federal High Court Rules in determining the time within which an election petition may be filed as the wordings of Section 141 of the Electoral Act 2006 are clear and unambiguous. The cause of action in an election petition arises only upon a declaration of results. It therefore means that once a result is declared the cause of action is complete. See Alataha V. Asin (1999) 5 NWLR (Pt. 601) pg 1 at 44, Ogbebor V. Danjuma, Kumalia V. Sheriff and Action Congress V. Jang (supra).
Counsel urged the Court to resolve this issue in favour of the Appellants and strike out the entire petition having been filed out of time contrary to Section 141 of the Electoral Act 2006, thus rendering it incompetent and therefore depriving the Tribunal of the jurisdiction to hear it on merit.
The learned counsel to the 1st and 2nd Respondents agreed that the result of the purported election was declared on 22nd April, 2007. However in determining whether an action is statute barred it is important to determine when time began to run. The Electoral Act 2006 has no provision for computation of time. Counsel referred the court to Section 151 of the Electoral Act 2006 which provides for the Rules of Procedure to be adopted to be that of the Federal High Court. See also Order 23 Rule 1(1) of the Federal High Court Rules regarding computation of time. He submitted that in computation of time generally recourse is had to the Interpretation Act.
Counsel submitted that the case of Ogbebor V. Danjuma, Nnonye V. Anyichie (1989) 2 NWLR Pt. 101 pg 101, Kumalia V. Sheriff (supra) are decisions of the Court of Appeal which have occasioned serious and grave miscarriage of justice having regard to the doctrine of stare decisis. Counsel submitted that this Court of Appeal as presently constituted is not bound by the Court of Appeal decisions cited above but instead by the Supreme Court decisions in Yusuf V. Obasanjo (supra) and Akeredolu V. Akinremi (1985) 2 NWLR Pt. 10 pg 787.
Counsel cited decisions of this court in the unreported cases of Abdullahi Adamu & 1 Ors. V. Hon. Tata Umar & 67 Ors – CA/J/EP/255/2007 and Abdullahi Adamu Yara & 1 Ors. V. Bawa Alabura & 27 Ors. – CA/J/EP/HA/246/2007 where the learned justices refused to follow the decisions in Ogbebor V. Danjuma but followed that of the Supreme Court in Yusuf V. Obasanjo (supra).
Counsel urged the Court to resolve this issue in favour of the 1st and 2nd Respondents in holding that the petition of the petitioners was filed within the prescribed period and therefore not statute barred.
Learned counsel to the second set of Appellants, Independent National Electoral Commission (INEC) and 1255 Ors also argued in the same vein as the 1st set of Appellants and urged the Court to hold that the petition of the 1st and 2nd Respondents is statute barred.
The Appellants raised for the first time in this Court the issue of jurisdiction. They objected to the jurisdiction of the Lower Tribunal to entertain this petition. The issue of jurisdiction is a threshold issue and a life line for the continuance of any proceeding. Objections to the Court’s jurisdiction ought to be dealt with at the earliest opportunity. A proceeding embarked on without jurisdiction is a nullity ab initio. See the case of Elabanjo V. Dawodu (2006) 27 NSCQR pg 32.
The issue of jurisdiction is fundamental and may be raised at any stage of the proceeding even on appeal. Kotoye V. Saraki (1994) 7 NWLR Pt. 357 pg 414 at 466; Bronik Motors V. Wema Bank (1993) 1 SCNLR 296.
A court is only competent to hear a matter when it comes before it initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of that jurisdiction. Any defect in the competence of a court is fatal and ultimately affects the jurisdiction of the Court to entertain the matter. The existence or absence of jurisdiction goes to the very root of the matter so as to sustain or nullify the court’s decision or order in respect of the relevant subject matter. See Ogbebor V. Danjuma (supra). Ishola V. Ajiboye (1994) 6 NWLR Pt. 352 pg 506 at 559.
The learned counsel to the 1st and 2nd Respondents sought to apply the Interpretation Act and the Federal High Court (Civil Procedure Rules 2000 in interpreting Section 141 of the Electoral Act 2006.
Section 141 Electoral Act 2006 is clear, plain an unambiguous and as such the ordinary; literal, natural meaning must be given plain meaning. See Attorney-General of Ondo State V. Attorney-General Ekiti State (2001) 17 NWLR Pt. 743 pg 706 where Kutigi JSC (as he then was stated):
It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions of an enactment are clear and unambiguous, effect must be given to them without resorting to any and internal or external. It is the duty of the court to interpret the words of Law makers as used.”
In the light of the above authorities and the principles governing interpretations of law, I hold that the words used in Section 141 Electoral Act 2006 are clear and unambiguous and as such must be given their literal and ordinary meaning without recourse to the Interpretation Act or to the Federal High Court (Civil Procedure Rules 2000). See the case of Ogbebor V. Danjuma (supra).
Section 141 Electoral Act 2006 stipulated thirty (30) days within which to present an election petition. The elections complained of were conducted on 21st April, 2007 into the Senate nationwide and so was the Benue North-West Senatorial District. After the elections the results were declared on 22nd April, 2007. The question here is when does time start running for the purposes of Section 141 of the Electoral Act 2006.
“Time begins to run when there is in existence, a person who can sue and another who can be sued and all the facts have happened which are material to be proved to entitled the plaintiff (here the petitioner) to succeed.”
Fadare V. A-G Oyo State (1982) NSCC Vol. 13 pg 52 at 60. All parties are ad idem that the result of the election was declared on 22nd April 2007. The learned counsel to the 1st and 2nd Respondents had urged this court to refuse to follow the cases of Ogbebor V. Danjuma (supra) Nnonye V. Anyichie (supra), Kumalia V. Sheriff (supra). Rather he urged that the court should follow the decisions of the Supreme Court in the case of Yusuf V. Obasanjo (supra) and Akeredolu V. Akinremi (supra) which followed the principle of the exclusion of the day of the happening of the event. These two cases were followed by the Court of Appeal in Abdullahi Adamu V. Hon. Tata Umar & 67 Ors -CA/J/EP/HA/255/2007 (unreported) and Yaro Vs. Alabura – CA/J/EP/HA/246/2007 (unreported).
However the Supreme Court cases of Yusuf V. Obasanjo and Akeredolu V. Akinremi are distinguishable from these cases as the former was an obiter whilst the latter is in the arena of general civil procedure matters. Interpretation Act was resorted to in interpreting the wordings of the statute in these two cases.
However, Section 141 of the Electoral Act 2006 does not need the aid of the Interpretation Act as the wordings are clear and unambiguous.
The 1st and 2nd Respondents in their petition averred inter allia in paragraph 4 of their petition as follows:
“And your petitioners state that the 1st Respondent, George Akume of Peoples Democratic Party (PDP) was returned as winner of the Benue North West Senatorial District held on 21st April, 2007 by the 4th Respondent on the 22nd April, 2007.”
From the above averment by the 1st and 2nd Respondents it is not in doubt that the results were declared on 22nd April, 2007. By the authority of Alataha V. Asin (1999) 5 NWLR Pt. 601 pg 1 where Salami JCA held:
“The time therefore begins to run in this case on the 22nd April, 2007 when the Appellant was declared and returned winner.”
The time to sue was upon that day because from that day the petitioners could present their petition against the Respondents and all the material facts required by them to prove their case had happened Odubeko V. Fowler (1993) 7 NWLR Pt. 308 pg 637; Jauco Nig. Ltd. V. Owoniboys Tech. Services Ltd (1995) 4 NWLR Pt. 391 pg 53.
A full court of the Court of Appeal in its judgment in the case of Kumalia V. Sheriff (supra) followed the decision in Ogbebor V. Danjuma (supra) and laid to rest finally when time is supposed to start running in an Election Petition. This case was also closely followed by the decision in Action Congress V. Jang (supra).
For avoidance of doubt time starts running on the date a winner is declared and returned.
By virtue of Section 141 of the Electoral Act 2006 an election petition shall be presented within thirty (30) days from the date the result of the election is declared. This is a condition precedent which foists jurisdiction on the Tribunal.
It is to be carefully noted in all cases that jurisdiction should always be determined based on the relevant enabling statue and the claim before the court. See Ifeajuna V. Ifeajuna (2000) 12 WRN 53 where Niki Tobi JCA as he then was held that:
“As a matter or law, a court must blindly follow and apply its jurisdictional limit or limitations as contained or provided in the statute. In this and other situations the statue is the master and all that a court of law can do is to interpret the provisions of the statute to obtain or achieve the clear intentions of the law. A court of law cannot do more than this. A-G Kwara State V. Olawale (1993) 1 NWLR Pt. 272 pg 645; Anya V. Iyayi (1993) 7 NWLR Pt. 305 pg 290.”
The thirty (30) days allowed for the presentation of this election petition under Section 141 of the Electoral Act 2006 started running when the results were declared and the Appellant was returned as winner of the election.
Limitation Legislation sets out the limitation periods for different classes of cases. This invariably means that certain classes of action shall not be brought after a period of time from the date the cause of action accrued. The object of limitation law relating to election petition is that as much as possible, petitions should be given expeditious adjudication to enable the parties to know the results of the election in which they participated. See Balogun V. Odumosu (1999) 2 NWLR Pt.592 pg 590.
Compliance with statutory provisions as to time within which to file an election petition is a fundamental pre-condition, a breach of which is incurable and failure to comply with the statutory provisions is fatal and in such a case the court has no jurisdiction to entertain the petition” Ogbebor V. Danjuma (supra); Nnonye V. Anyichie (1989) 2 NWLR Pt. 101 pg 110 (supra).
In cases of election petition the Electoral Act 2006 specifies that the petition must be presented within thirty (30 days). Failure of which robs the court of jurisdiction to entertain the petition.
In the circumstances of this case, I hold that time began to run on 22nd April, 2007 i.e. the day the results of the Benue North West Senatorial District was declared. It is not in dispute that the results of the election were declared on 22nd April, 2007 and that the petition was presented on 22nd May 2007. Thirty (30) days from 22nd April, 2007 ended on 21st May 2007. The petition presented on 22nd May 2007 was therefore filed one (1) day outside the mandatory period stipulated by Section 141 of the Electoral Act 2006.
This petition filed on 22nd May 2007 is therefore statute or time barred. See Elabanjo V. Dawodu (supra). The Lower Tribunal had no jurisdiction to entertain this petition and therefore the trial and the decision reached are a nullity.
This appeal is meritorious and therefore allowed. The judgment of the Lower Tribunal is set aside. The 1st Appellant’s return by the 3rd Respondent INEC is hereby confirmed.
I make no orders as to costs.
Other Citations: (2008)LCN/2812(CA)
