Patrick Ikharaiale & Anor. V. Theophilus Okoh & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI J.C.A,
The 1st Appellant duly contested the 21st April, 2007 National Assembly election under the platform of the 2nd Appellant for Esan West, Esan Central, Igueben Federal Constituency and was duly returned as the winner of the said election by the 3rd – 7th Respondents.
The 1st Respondent also contested the said election for the same constituency under the platform of the 2nd Respondent and came second in the polls.
Dissatisfied with the aforesaid result released by the 3rd – 7th Respondents, the 1st and 2nd Respondents on the 21st May, 2007 filed an election petition at the Governorship and Legislative Houses of Assembly Election Tribunal for Edo State seeking the nullification of the election.
The judgment of the Tribunal was delivered on 28th April 2008 nullifying the election of Patrick A. Ikhariale as member representing Esan Central, Esan West and Igueben Federal Constituency, Edo State. The Tribunal ordered the conduct of fresh elections into the constituency.
Dissatisfied with the said judgment, Patrick Ikharaiale and PDP who were 1st & 2nd Respondents at the lower court immediately filed a notice of appeal on 16/5/08. They are the Appellants in CA/B/EPT/222/08. Equally dissatisfied with some part of the judgment, Theophilus Okoh and the Action congress filed a notice of cross appeal on 19/5/08. The cross appeal was given the No. CA/B/EPT/221/08.
Consequent on the orders of this court, the two appeals have been consolidated as one appeal. The Appellants were granted leave to amend the notice of appeal on 4/2/09. Issues were joined by parties and briefs were filed by counsel in respect of the appeal and cross appeal. For the first time, the Appellant raised the question of the jurisdiction of the Tribunal below to hear the petition on the basis that the petition was statute barred.
Dr. Alex Izinyon SAN learned counsel for the Appellants distilled eight issues for determination stated as follows:
“1. Whether the learned Chairman and members of the tribunal were right in invalidating the deducting votes scored by the Appellants in the 3 Local Government Areas making up the Federal constituency. (Encompassing grounds 1, 2, 3 and 9 of the Notice of Appeal).
- Whether the Chairman and members of the tribunal were right on ordering a physical recount of the ballot papers used in the conduct of the election in Esan Central Local Government Area. (Encompassing ground 4 of the Notice of Appeal).
- Whether the Chairman and members of the tribunal were right in admitting and placing reliance on Exhibits 4 and 4A (Schedule of persons who were disenfranchised) in nullifying the scores of the 1st Appellant in Esan Central Government Area. (Encompassing ground 5 of the Notice of Appeal.
- Whether the Chairman and members of the tribunal were right in holding that the burden of proving the election held in the Constituency shifted to the Appellants having regard to the evidence led by the 1st – 2nd Respondents. (Encompassing grounds 6, 7, 8 and 15 of the Notice of Appeal).
- Whether the Chairman and members of the tribunal were right in canceling votes scored by the Appellants in Esan West Local Government Area without adducing any reason for such cancellation. (Encompassing ground 10 of the Notice of Appeal).
- Whether the Chairman and members of the tribunal were right in nullifying the entire result from Igueben Local Government Area on the ground that the Electoral Officer wrong dated the result. (Encompassing ground 11. of the Notice of Appeal.
- Whether the Chairman and members of the tribunal were right in nullifying the entire election in Esan Central, Esan West, Igueben Federal Constituency after holding that the 1st Appellant scored lawful majority votes cast at the election (Encompassing grounds 13, 14 and 16 of the Notice of Appeal.
- Whether having regard to the provision of Section 141 of the Electoral Act 2006, the petition filed by the 1st and 2nd Respondents was competent”
Mr. Ken Mozia learned counsel in different words and a few changes in emphasis distilled essentially the same issues for determination. The 3rd – 7th Respondents identified only 3 issues for determination similar in content with issues 1, 3 and 7 respectively already identified by Appellants’ counsel. I will adopt the issues identified by Appellant’s counsel already set out above in the consideration of this appeal. In the original notice of appeal, the appellant complained of recounting of votes in Esan West L.G. This is also the objection in the amended notice of appeal. However, in the Appellants’ brief, learned senior counsel talks on issue 2 about Esan Central L.G. rather than Esan West. Accounting to pg. 614 of the record, there was physical counting of ballot papers in respect of Esan Central L.G. I will thus consider the issue as it relates to Esan Central L.G. as argued by Appellants’ counsel as the appellants’ issues should drive the appeal.
Issue 8 is whether having regard to the provision of S.141 of the Electoral Act 2006, the petition filed by the 1st & 2nd Respondents was competent. Jurisdiction is a threshold issue which must be decided as soon as it is raised and it may be raised at any stage of the proceedings and even on appeal. See ALH. SAIDU ABDULSALAM V. ALH. ABDULRAHEEM SALAM (2002) 6 SCNJ 388. Where a court lacks jurisdiction no matter how well the trial is conducted, the trial would be a nullity. See JOHN EBHODAGHE V. CHIEF OMOKHAFE (2004) 12 SCNJ 175; CHIEF EUGBE V. CHIEF OMOKHAFE (2604) 12 SCNJ 106; ELABANJO V. DAWODU (2006) 6 SCNJ 204. The above is the general state of the law in adversarial jurisprudence. The jurisdiction of a court is determined by the constitution and the enabling statute. ONUORA V. KADUNA REFINERY & PETROCHEMICAL CO. LTD (2005) 2 SCNJ 179.
Thus, I will deal with the issue of jurisdiction first even though it is the last issue distilled for determination.
As the final court in election matters, the disposal of this issue would affect the appeal. Where an appeal is based on several grounds which include a ground raising issue challenging jurisdiction on a firm ground before the Court of Appeal sitting as a final court in an election petition appeal, it is unnecessary to consider arguments and decide other issues raised in the appeal after dealing with the issue of jurisdiction. If I find that the lower court lacked jurisdiction to hear the petition, there would be no need to go into the merit of the appeal proper ALH. BARI BUDO NUHU V. ALH. ISOLA ARE OGELE (2003) 12 SCNJ 158.
Learned senior counsel for the Appellants argued that the 1st Appellant was declared winner of the April 21″ Election on the same April 21st 2007. The case of the Appellants is that once an election result is declared, the cause of action is complete for any plaintiff in this case a petitioner, to file a petition. Counsel submitted that S.141 of the Electoral Act 2006 provides that an election petition must be presented within 30 days from the date the result of the election is declared. In calculating the 30 days, the cause of action would arise and time would begin to run from the day the result of the election was declared. Counsel argued that there is no room for sympathy or consideration of the merits of the case of the parties. Counsel submitted that the petition was filed a day after the limitation period, it had become statute barred and must be dismissed for want of jurisdiction. He cited AKUME V. LIM (2008) 16 NWLR PT.1114 PG. 490 at 502; ALATAHA V. ASIN (1999) 5 NWLR Pt 601 Pg. 32 at 44; OGBEBOR V. DANJUMA (2003) 15 NWLR Pt 843 Pg. 403 at 426-427; NYA V. EDEM (2005) 4 NWLR Pt 915 Pg. 345 and a plethora of other authorities on this point.
Learned counsel for the 1st & 2nd Respondents in reply argued that the Electoral Act 2006 is not exhaustive and that it is not in doubt that the provisions of the Evidence Act, Interpretation Act and Public Holiday Act are applicable to the proceedings of the Tribunal. He cited DAGASH V. BULAMA & 6 ORS (2004) 14 NWR Pt 892 Pg 144. He further argued that by the provisions of S.74(1)(g) of the Evidence Act, judicial notice shall be taken of “…..the public festivals, and holidays notified in the Federal Gazette or fixed by Act”. Accordingly, the Tribunal is also entitled to take judicial notice of the days declared to be holidays by an Act. By the provisions of Section 1 of the Public Holidays Act, CAP P 40, Volume 14 Laws of the Federation 2004, “the days mentioned in the schedule to this Act shall be kept as public holidays throughout Nigeria.” By the provisions of paragraph 4 of the said schedule, May 1st (Workers day) was declared a public holiday. By the clear provisions of Section 4 of the said Public Holidays Act which provides ‘no person shall be compellable to do any act on a day appointed by or under the provisions of this Act to be kept as a public holiday which he would not be compelled to do on a Sunday”
By virtue of Section 6(1) of the Act, no official duty may be done on a Saturday, Sunday or public holiday by anyone serving in a ministry or government department except it is requested by a permanent Secretary or the head of any government department. By Section 6(3), “reference to department includes references to any court or Tribunal set up in pursuant to any enactment”.
Counsel further argued that even if the computation of the 30 day period statutorily provided for the filing of an election petition were to be counted or reckoned from the 21st of April 2007, the 30th day would fall on the 20th of May, 2007 a Sunday.
Counsel argued that in the cases cited by the Appellants’ counsel the application of the Public Holidays Act by virtue of the provisions of the Evidence Act were not considered. The last day for initiating the process did not also fall on a Sunday if the reckoning were to start on the date the result was declared. Even if the computation of the 30 day period provided for were to be reckoned from 21st April 2007, the 30th day would fall on the 20th of May 2007 which was a Sunday and being a public holiday the Petitioner could not have been able to file anything on that day. He cited AGBAI V. INEC (2008) 14 NWLR Pt. 08 Pg 417 at 434; KARIYI ALUGBEOBIA V. MARTIN OKONTO & 3 ORS. CA/B/EPT/260.2007 decided on 21/2/08. S. 141 of the Electoral Act 2006 provides as follows:
“An election petition under this Act shall be presented within thirty (30) days from the date the results of the election is declared”. (underlined mine for emphasis)
I have carefully considered the arguments and authorities in the briefs relied on by the parties. The point in contention in issue in the main Appeal is the application vel non of either the Interpretation Act (supra) or the Federal High Court (Civil Procedure) Rules 2002 or both of them in the determination of the thirty (30) day period stipulated in S.141 of the Electoral Act 2006, a period within which an Election Petition must be presented from the date of the declaration of the result of the election. The relevant provisions of the Interpretation Act referred to by learned counsel in their briefs are hereunder set out. I quote-
“S.1 This Act shall apply to the provisions of the every enactment except in so far as the contrary intention appears in this Act or the enactment in question” (underlining mine). S.15(2) (a) “A reference in an enactment to a period of days shall be construed where the period is reckoned from a particular event as excluding the day on which the event occurs”
Order 23 Rule 1(b) of the Federal High Court (Civil Procedure) rules 2000 provides, “whereby any written law or any special Order made by the Court. In the course of any proceedings, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceedings, and the time is not limited by hours, the following rules shall apply (b) the act or proceeding shall be done or taken at least on the day of the limited time”,
The Electoral Act 2006 is “an Act of the National Assembly” and “a written law” within Section 15(2)(a) of the Interpretation Act and Order 23 rule 1(b) of the Federal High Court (Civil Procedure) Rule 2000 respectively, As for Order 23 Rule 1 (b) the parties do not dispute that the act, the doing of which time is limited (not by hours) is done at least on the last day of the limited time, The question of when the time limited starts to run is not disputable but when it expires, the Respondent clinging to the fact that the last day fell on a Sunday so, the following day a Monday is the last day, The provision of the Interpretation Act does not necessarily apply in all cases of construction of Acts of the National Assembly or other enactments, Its application is subject to two limitations – one in-built in the Act itself and the other based on case law, The self-restraint in the application of the Act, 9 including S.15(2)(a) is contained in S.1 thereof which states that the Act is not applicable”………In so far as the contrary intention appears in this Act or the enactment in question”.
The second limitation is imposed by case law. There is a plethora of cases to the effect that clear, explicit and unambiguous provisions of an enactment must be given their natural literal and grammatical meanings without a resort to any internal or external aid in construction. See for instance BAKARE V. N.K.C. (2007) 17 NWLR (Pt 064) P 606 at 621
where the Supreme Court on construction of clear and unambiguous words of statute held, “where the provision of a statute is plain and unambiguous, the words have to be given their ordinary and natural meaning. It is unnecessary to resort to other canons of interpretation unless the ordinary and natural meaning leads to absurdity. A Court is enjoined to interpret the provision of law and give it is grammatical and ordinary meaning and not to ramble and distort its construction…………….” See also A-G, ONDO STATE A-G. EKITI STATE (2001) 17 NWLR (Pt.743) P.706.
The first restriction to the application of the interpretation can be disposed of summarily. There is no intention in the interpretation Act or the Electoral Act to exclude the former in the construction of the latter. On this score and in view of the broad title of the interpretation Act, it could prima facie, be said to be applicable in the interpretation of the Electoral Act 2006 but the matter does not end with the first limitation. It is the second limitation based on case law, which appears to be decisive factor in this case. Here it is pertinent to reproduce the provision of the section of the Electoral Act, the subject matter of this appeal.
S.141 “An election petition under this Act, shall be presented within (30) days from the date the result of the election is declared”, (underlining mine).
The operative words are “SHALL” “WITHIN” and “FROM” Each word in a statute is deemed to have been used in its ordinary, natural and literal meaning. Each of the three words as used in the Act is devoid of any esoteric or arcane connotation. In the unlikely event any of them bears mystical meaning, it is demystified by reference to the circumstance in which it is used. The words are clear and unambiguous. In my humble view the meaning of each of the three words is clear from its con and there is no need to resort to internal or extraneous aid in the construction of the section of the Act in which they are used. I refer specifically to the Supreme Court’s decisions in YUSUF V. OBASANJO (supra) and AZEEZ AKEREDOLU & ORS V. LASISI AKINREMI (supra). In the former case the issue dealt with by the Apex Court concerned amendment of an extent election petition whereas the case at hand is on computation of time within which an election petition can be presented under S. 141 of the Electoral Act 2006.
The second case was on computation of time within which to appeal to the Supreme Court pursuant to S.31(2)(a) of the Supreme Court Act. In neither of the two cases was the issue of ambiguity in the provision construed raised and or determined nor was it shown that the words of the statute involved would, in their natural and ordinary meaning lead to absurdity in the statue construed. The authority of any decision of any Court, no matter its status in the hierarchy of courts cannot extend to an issue not decided by the Court. I will however, add that binding decision by a Court must be based on an issue raised in the proceedings before the Court.
Having determined that there is no ambiguity in S.141 of the Act or that the ordinary grammatical meaning of either of the words used will not lead to absurdity in the interpretation of the section and ipso facto S.15(2)(a) of the interpretation Act is not applicable, I shall consider the meaning of the words, “within” and “from” as used in the section. I will start with the word “from”. I am aware of the decision in the old English case of SOUTH STAFFORDSHIRE TRAMSWAYS CO. V. SICKNESS & ACCIDENT ASSURANCE (1981) 103.402 in which it was held that the word “from” if used for the purpose of, and in reference to the computation of time excludes, prima facie, the date of the event. It was however, decided in the same case that the question whether the date should or should not be excluded shall be determined according to the con in which the word “from” is used. See SRINIVASA SILK MILLS V. STATE OF MYSONE A.I.R. (1962) Mys 117 at P.123; 39. Mys L.R. 1006. See Law Lexicon page 895; See also GLASSINGTON V. RAWLINS 3 East 407.
In the New Websters Dictionary of the English Language, International Edition, P.381, it was stated that the word “from” indicate outward movement or distance in relation to appoint in space or time etc (underlining mine). In SIDEBOTHAM V. HOLLAND (1895) 1 QB 378 Smith L.I held that the use of the word, “from” may include or exclude the date of the event according to the con. In SIMPSON V. LEWTH WAITE 3 B & Ad. 230, it was held that the words “from a place” has the like interpretation as the word, “from” used in respect of time. As indicated earlier the dictum relates to the interpretation of S.32(2)(a) of the Supreme Court Act and it is therefore not an authority for the interpretation of S.141 of the Electoral Act 2006.
The Court at whatever level in the judicial hierarchy is not authorized, and is in-equipped to embark on the execution of a duty constitutionally and exclusively reserved for the legislature. See Section 4(1) and (6) of the Constitution of the Federation 1999. It cannot do so in a pretended interpretation of words which are clear and unambiguous in their natural grammatical and literal meaning with reference to the contest in which law makers use them. From the day of declaration of result, means that time will run from the day of declaration even if it took place at the last minute of the day. In another English case of Jubilee Cotton Mills (1924) AC 958 (though the case was decided on S.16 of the Companies (Consolidation) Act 1908 it was held that “from the date of incorporation” will include any portion of the day of which the Company was incorporated. “From” means starting at a particular time. See Longman Dictionary of Contemporary English, New Edition P.568 See also Chambers 21st Dictionary Revised Edition where it stated that ‘from’ a point in place or time.
Based on the above and the essence of time in the disposal of electoral matters. I have come to the conclusion that the use of the word “from” in S.141 of the Electoral Act 2006 means from the day and includes part thereof, the result of the election was declared. The 30 day of period stipulated in S.141 of the Electoral Act started from 21st April, 2007 on which the result was declared without prejudice to the time the result was actually declared in so far as it was declared within the 24 hours of the day in question. In the con of S.141 of the Electoral Act 2006 the word “within” complements the purport of the word “from” in the said Section of the Act. The word ‘within’ means that an election petition arising from the election to the Esan Central Federal Constituency must be presented any time between the 21st day of April, 2007 and 20th day of May, 2007, 30 days from 21/4/2007 on which the result was declared and inclusive of both dates.
It is agreed by all parties as to the date the Appellant was declared and the date when the Respondent filed his petition. Going by the computation of time the date of filing the petition is the 31st day though the argument is that the 30th day fell on a Sunday.
In ALATHA V. ASIN (1999) 5 NWLR (Pt 601) Page 32 at 44 Salami JCA held as follows:
“The time therefore began to run in this case on the 14th of April, 2007 when the Appellant was declared and return winner”.
See also OGBEBOR V. DANJUMA (2003) 15 NWLR Pt 843 page 403 at 426-427. The time to sue therefore was up on that day because from that day the petitioner 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 LTD V. OWONIBOYS TECH. SERVICES LTD (1995) 4 NWLR Pt 391 Page 53; HON. MOHAMMED UMAR V. KUMAHS V. SENATOR ALI MODU SHARIFF CA/J/EPT/GOV/244/07 (unreported) a full court of five Justices established when time is supposed to start running in an Election Petition.
No doubt time started to run on the date a winner is declared and returned. By virtue of Section 141 Electoral Act 2006 an election petition shall be presented within 30 days from the date the result of the election is declared. This is a condition which foists jurisdiction on the tribunal. The 30 days allowed for the presentation of this election petition under Section 141 of the Electoral Act 2006 started running on when the results were declared and the Appellant was returned as the winner of that election. Limitation legislation sets out limitation periods for different classes of cases. Election Petition is sui generis and time is of essence. 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 result 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. Time to take steps in appeal in election petition matters are statutorily limited. This is done bearing in mind the spirit of the law, which is that as much as possible, election petitions are to be given expeditious hearing. In BALOGUN V. ODUMOSU Pats-Acholonu, JCA (as he then was) held at p.597 paras. B-C as follows
“The issue of time to complete filing of all processes relating to hearing and determination of an election petition was uppermost in the mind of the legislature. The enactment stretches itself further a filed to do away with tardiness and waste of time and endeavoured to constrict the time of doing a particular act within a time frame work. In other words, it is the intention of the legislators that parties stick strictly to the times stated in the Decree. The court would not aid anyone who decided to sleep only to wake up when it is too late.” See OGBEBOR V. DANJUMA (supra); NNONYE V. ANYICHIE (1989) 2 NWLR Pt 101 Pg 110. In the circumstance of this case I hold that time begin to run on 21/4/07 that is the day the result of the election in this appeal was declared and ends on 20/5/07 notwithstanding that it fall on a Sunday.
The filing of the petition a day outside the statutory period has resulted in fatal consequence on the petition. One pertinent question to ask is why the delay in filing the petition within time? Is it to surprise the opponent? This is done at the petitioners risk and he must have himself to blame for it.
On the whole it is my humble opinion that the petition filed on 21/5/07 was filed on the 31st day and 30th day being a Sunday is immaterial and of no consequence. The petition is therefore statute barred. The tribunal lacked competence to entertain the petition. The trial and subsequent decision reached therein is therefore a nullity. See UMARU V. ALIYU & ORS unreported CA/A/EPT/317/07 and CA/A/EPT/234/08 a decision of five Justices of the Court of Appeal delivered on 19/2/09.
The petition filed on 21/5/07 by the 1st & 2nd Respondents is hereby struck out for being incompetent. I order no cost.
Other Citations: (2009)LCN/3223(CA)
