Adebusoye Olaniyi V. Akikurolere Soji. O. & Ors (2009)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI J.C.A
This is an appeal brought by the Appellant who was the 1st Respondent at the Election Tribunal against the Judgment of the Governorship/Legislative Houses Election Tribunal delivered on 1st April 2008 wherein the Election Tribunal upheld the petition and nullified the election of the Appellant herein who was returned by the 2nd – 4th Respondents as member of Ondo State House of Assembly for Okitipupa Constituency I in the 14th April 2007 election.
The Grounds for the petition in the lower tribunal are stated in paragraph 14 of the petition (see page 3) of the Record of Appeal. Reliefs sought by the 1st Respondent are stated thus:
(i) An order nullifying the Result of the State House of Assembly Election in the entire wards in Okitipupa Constituency I Okitipupa Local Government Area of Ondo State as declared and announced by the 2nd – 4th Respondent
(ii) An order nullifying the purported election and return of Adebusoye O. as member of Ondo State House of Assembly to represent Okitipupa Constituency I in Okitipupa Local Government Area of Ondo State as he did not score the majority number of lawful valid votes for the reasons forstated in the petition.
In the practice of the Lower Tribunal the trial was conducted to conclusion. In its considered judgment the Tribunal on 1/4/08 upheld the petition of 1st Respondent herein and nullified the election of the Appellant who was elected and returned by the 2nd – 4th Respondents. The Appellant being dissatisfied with the judgment appeal to this court. The Appellant filed an Amended Notice of Appeal with Ten Grounds. The Amended Grounds of Appeal has 10 Grounds of Appeal and was deemed filed and served on 27/4/08.
The Grounds of Appeal are herein stated without particulars:
GROUND ONE
The Lower Tribunal erred in law and acted without jurisdiction when it admitted in evidence Exhibit T, a correspondence from INEC to Liaison Officer, Labour Party dated 25th October 2007 made while proceeding was already pending and which the learned Tribunal placed heavy reliance upon in its judgment and thereby caused a grave miscarriage of justice to the 1st Respondent whose election was challenged.
GROUND TWO
The lower Tribunal erred in law when it found that all Electoral materials meant for use in the election were either burnt or destroyed during the election based on Exhibit T which findings was perverse and has occasioned a miscarriage of justice.
GROUND THREE
The lower Tribunal erred in law in upholding the Petition and nullifying the election of the Appellant without the evaluation of the evidence led by all the parties in the Petition and this occasioned a miscarriage of justice.
GROUND FOUR
The lower Tribunal erred in law and acted without jurisdiction when it admitted in evidence Exhibits D1, D2 and D3 and relied heavily on them thereby occasioning a miscarriage of justice to the 1st Respondent whose lawful election was nullified by the judgment.
GROUND FIVE
“What we have done so far is to show how Exhibit A01-A09 being collated results from the Okitipupa Constituency I have distorted and inflated entries and incidents of over voting. An over voting is provided for under 8.54 (1) & (2) of the Electoral Act 2006 thus:…”
GROUND SIX
The lower Tribunal misdirected itself in law and in fact when it held:
“In view of the above, we hold the view that the violence during the election was so widespread that no party should benefit from it. Also the results as declared in Exhibits A01-A09 cannot be taken as genuine in view of the above malpractice. Regrettably this document is coming from INEC who is the field umpire in the election. The document is positive, direct and unequivocal. It is tantamount to an admission by INEC though the 3rd Respondent the Electoral Commissioner Akure that the election in the different units and wards mentioned in Exhibit “T” were marred by violence. In view of Exhibit “T”, what INEC could have done was to cancel the exercise. This was not done thus depriving a constituency their civil right to vote for a candidate of their choice freely and fairly. We find this as a substantial non-compliance with the provisions of the Electoral Act 2006 which has substantially affected the election conducted in Okitipupa Constituency I in Okitipupa Local Government Area of Ondo State and therefore in breach of S. 146 (1) of the Electoral Act.” Which finding is perverse and has occasioned a miscarriage of justice.
GROUND SEVEN
The lower tribunal erred in law when it held thus:
“As earlier stated in the course of this judgment. Some figures on record do not tally with each other where the same figures appear in other documents. With that type of situation, there is no how, any result from such distorted records of an election can be said to be true or genuine. There is therefore no presumption of regularly of the official results from INEC because as already submitted by the Petitioner’s counsel it does not hold where the documents tell lies and at war with neither each other nor can we take the result of voting in the units and wards where they emanate because they are fabricated.”
GROUND EIGHT
The lower Tribunal erred in law when it came to the conclusion that the Petitioner has proved his petition and held that the election conducted in Okitipupa Constituency I on 14th April 2007 was marred by massive electoral malpractice, over-voting and nonvoting and non-compliance with the provision of the Electoral Act, 2006 and consequently nullified the said election.
GROUND NINE
The learned trial judges of the lower Tribunal misdirected themselves and thereby occasioned a miscarriage of justice when they held thus:
“We have taken an eagle eye on Exhibit T and discovered that the said exhibit was signed and dated contrary to counsel submission. We therefore do not agree with Respondents’ counsel on this point. The covering letter carrying the attached list was written on INEC letter head and duly signed and date (sic) 28/10/07 by one Toyin Abegunde for Resident Electoral Commissioner. It is a public document and the Respondent was at liberty do (sic) call the said Toyin Abegunde to throw some light. However, in law whoever procures a public document is competent to tender it notwithstanding that the author of such document is not called. In Agagu v. Dawodu (1999) 7 NWLR (Pt. 160) pages 56 at 66… So we held (sic) the view that whether or not the author of Exhibit T is called goes to no issue.”
GROUND TEN
The trial Tribunal erred in law when it entertained and determined the Petitioner’s petition when it has no jurisdiction to determine the petition and when it was not initiated by due process.
Ground 10 was included in the Amended Notice by leave of court. From the Amended Notice and Grounds of Appeal the Appellant distilled 4 issues for the determination of the appeal. Issues distilled are state therein.
(A) WHETHER THE ELECTION PETITION FILED ON 14TH OF MAY 2007 IN RESPECT OF THE HOUSE OF ASSEMBLY ELECTION INTO OKITIPUPA CONSTITUENCY I OF ONDO STATE HELD ON 14TH APRIL 2007 IS COMPETENT HAVING REGARD TO THE PROVISIONS OF SECTION 141 OF THE ELECTORAL ACT 2006.
(B) WHETHER HAVING REGARD TO THE CIRCUMSTANCE OF THIS CASE, THE LOWER TRIBUNAL WAS RIGHT IN LAW WHEN IT ADMITTED EXHIBIT “T” IN EVIDENCE AND RELIED HEAVILY ON SAME TO ARRIVE AT ITS DECISION.
(C) WHETHER TAKING INTO CONSIDERATION, THE RECORD OF APPEAL BEFORE THE HONOURABLE COURT, THE LOWER TRIBUNAL CAN BE SAID TO HAVE PROPERLY AND DISPASSIONATELY EVALUATED THE EVIDENCE PLACED BEFORE IT IN ARRIVING AT ITS CONCLUSION IN THIS MATTER WHICH HAS OCCASIONED MISCARRIAGE OF JUSTICE TO THE APPELLANT.
(D) WHETHER THE ADMISSION OF EXHIBITS D1, 02 AND 03 IN EVIDENCE BY THE LOWER TRIBUNAL AND ITS FINDING AND CONCLUSION IN RESPECT OF EXHIBITS A01 – A09 IN THE CIRCUMSTANCE OF THIS CASE HAS NOT OCCASIONED A GREAT MISCARRIAGE OF JUSTICE AGAINST THE APPELLANT.
4.0 MARRIAGE OF ISSUES TO GROUNDS OF APPEAL
4.1 Issue one is married and/or related to ground 10
4.2 Issue two is married and/or related to grounds 1, 2, 6 and 9 respectively
4.3 Issue three is married and/or connected to grounds 3 and 8 respectively
4.4 Issue four is married and/or tied to grounds 4, 5 and 7 respectively.
In line with the practice of this court parties filed briefs and joined issues. When the appeal came up for hearing on 26/10/09 parties adopted and relied on their briefs. It should be noted at this stage that there are Preliminary Objections on both sides and in my view this led to the proliferation of briefs and counter briefs. In my view this practice leads to confusion.
Dr. Ayeni, learned counsel to the 1st Respondent referred to his Preliminary Objections dated and filed on 1/7/09 together with the arguments on same attached to the application. The objection relates to a single ground of appeal. He relied on the said argument and urged this court to strike out Ground 10 of the Amended Notice of Appeal.
Counsel for the 2nd-4th Respondents Mr. Igbochi also referred to his Notice of Preliminary Objection with argument dated 19/2/09 and filed on 25/2/09. He relied and adopted the said brief and he urged this court to set aside the judgment of the lower Tribunal. He also reminded the court that 1st Respondent reply to 2nd – 4th Respondent and 5th – 6th Respondents’ Preliminary Objection having been withdrawn and struck out is of no moment.
Mr. Idachaba of counsel to the 5th and 6th Respondents referred to his Preliminary Objection against the petition dated 26/1/09 and filed on 30/1/09. He adopted and relied on same in support of his Preliminary Objection.
Dr. Olatoke of counsel referred to his Amended Appellant’s Reply Brief of Argument dated and filed on 23/3/09 deemed properly filed and served on 27/4/09. He adopted and relied on same as his reply to the 1st Respondent Preliminary Objection. He also referred to his Amended Appellant Brief dated 20/10/09 deemed properly filed and served on 22/10/09. He adopted and relied on same and he urged the court to dismiss the Preliminary Objection and urged the court to allow the appeal. He referred to the Preliminary Objection of the 2nd – 4th Respondent his case as against the 1st Respondent.
Dr. Ayeni of counsel to the 1st Respondent referred to his brief dated 18/3/09 and filed on 19/3/09 but deemed properly filed 27/4/09. He adopted and relied on same as his argument against the appeal. He urged the court to dismiss the appeal.
Let me first treat the preliminary objection to Ground 10 of the Notice and Grounds of Appeal. It is the view of the 1st Respondent that Ground 10 of the Appellant’s Amended Notice of Appeal deemed properly filed on 27/4/09 is incompetent. The ground of this objection is that the lower tribunal did not consider the issue sought to be raised vide Ground 10 of the Appellant Amended Brief of Argument neither did it adjudicate on same.
ii) The determination of the issue of date of declaration of results in an election petitions can only be proved by INEC final declaration of Results of Election in Form EC8 EC1 to which neither party referred to the lower tribunal and tendered in evidence and not by or in any other way.
iii) The actual date of Declaration of Result of Election on INEC for EC8 EC1 in this case is 15th April 2007.
iv) The Election Petition matter of this appeal was filed on 14th May 2007 as evidenced in the Record of Appeal and within the lawfully stipulated time.
v) Ground 10 of the Appellant’s Amended Notice of Appeal raised a moot academic and hypothetical issue which this Honourable court has no jurisdiction to hear and determine and constitute an abuse of process of court.
vi) The Honourable court has no jurisdiction to raise or consider an academic, moot and or hypothetical issue.
In support of his Preliminary Objection the 1st Respondent argued that the complaint raised in Ground 10 of the Appellant’s Amended Notice of Appeal does not arise from the decision of the lower Tribunal being appealed against neither is there anything on the Record of Appeal to sustain the issue which in any case is hypothetical, moot and academic. He argued that Ground 10 of the Appellant’s Notice of Appeal is incompetent on the ground that it raise a moot issue which the Honourable court has no jurisdiction to hear and determine and ought to be struck out. He relied on SARAKI V. KOTOYE (1992) 11 – 12 SCNJ 26, 43, CCB PLC V. EKPEN (2007) ALL FWLR (PT. 355) 412, 424 – 425.
He argued that the issue ought to have been tried by the lower tribunal. He also argued that determination of the Grounds of Appeal will involve the consideration of all available materials before it. He said the said INEC Form EC8 EC1 was not tendered. He relied on AGBOOLA AJAYI V. OMOTOJE BAYO CA/B/EPT/330, 330A and 343/08 delivered on 19/5/09.
A ground of Appeal which makes a new case out on appeal will be struck out, since an appeal is a continuation of the original proceeding and no party is allowed to change his case. He relied on UNIVERSAL TRUST BANK LTD. & 2 ORS V. DOLMETSCH PHARMACY (NIG.) LTD. (2007) 16 NWLR (PT. 106) 520, 537. He urged the court to strike out Ground 10 and Issue one formulated under the said ground. In his answer to this Preliminary Objection, the Appellant in his Amended Reply Brief pointed out that the argument of the 1st Respondent is a replica or a reproduction of his Respondents’ brief dated 18/3/09. It is also of the same effect with the 1st Respondent Motion dated 1/7/09 which urged this court to strike out Ground 10 of the Appellant’s Amended Notice of Appeal deemed filed on 27/4/09. The 1st Respondent had joined issue. He argued that the 1st Respondent’s Objection constitute an abuse of process of court and same ought to be dismissed relying on OFFOR V. LEADERS & CO. LTD (2007) 7 NWLR (PT. 1032) 1 AT 24, ALLAM T.O. USMAN BABA (2005) 2 NWLR (PT 917) 13 AT 131.
He also argued that when the Appellant applied to raise the issue of jurisdiction the 1st Respondent did not raise any objection neither was there any counter-affidavit filed. He relied on Section 75 of the Evidence Act Cap E14 LFN 2004. He argued that the Preliminary Objection ought to be dismissed in that the 1st Respondent had already joined issue in his 1st Respondent Brief. He said there is enough evidence on Record as to which date the declaration of the election was dated. He further submitted that issue of jurisdiction can be raised at any time even for the first time on appeal. Having sought the leave of court to raise it, any objection becomes frivolous. Referred to ACB PLC V. EMEDO (2003) 10 NWLR (PT 828) AT 244, AKPAN V. BARCLAYS BANK (1977) 1 SC 30, JOV V. DOM (1999) NWLR (PT 620) AT 538. He also submitted that where parties have failed to raise issue of jurisdiction the court can raise it suo motu even on Appeal. He relied on IJEBU ODE L.G. V. BALOGUN (1991) SCNJ 1 AT 13, EMUZE V. VC UNIBEN (2002) 8 NWLR (PT 828) 328 AT 395, GALADIMA V. TANBAI (2000) 11 NWLR (PT 677) 1 AT 17-18. He then urged this court to dismiss the 1st Respondent Preliminary Objection with cost.
I have carefully read the Ground of Objection raised as to Ground 10 of the Amended Notice of Appeal which reads and I quote:
“GROUND TEN
The trial Tribunal erred in law when it entertained and determined the Petitioner’s petition when it has no jurisdiction to determine the petition and when it was not initiated by due process”
He then particularized the ground.
Reading the argument in support of the Preliminary Objection, it is clearly observed that the 1st Respondent rather than raise any objection as to the offending Grounds of Appeal decided to argue his point as to when the result of the election in this case was declared.
Ground 10 is an issue on jurisdiction and can be raised at any time even for the first time on appeal. The Appellant sought the leave of court to argue this ground and leave was granted without any objection from any of the parties.
The object of a Ground of Appeal is to apprise the opposite party of the nature of the complaint of the Appellant and so where such a complaint is clear and unambiguous and no rule of court is violated such a ground should be regarded as competent. See STIRLING CIVIL ENGINEERING (NIG) LTD. V. AMBASSADOR MAHMOOD YAHAYA VOL. 22 NSCQR 1. See also IWUOHA & ORS V. NIG. POSTAL SERVICES LTD. VOL. 14 (PT 1) NSCQLR 253 where the Supreme Court held that the major function of a Ground of Appeal is to let the Respondent know the complaint the Appellant has against the judgment of the court. The essence of particulars is as the name implies to particularize in specific language the Grounds of Appeal. In other words where the Grounds of Appeal are not explicit the particulars will fill the place by stating the specific details. The Ground of Appeal Ground 10 in this appeal is specific and a ground of law as to jurisdiction. The objection i.e. the 1st Respondent rather than point to any law or rule of law that the ground offends argued vehemently as to the date of the Declaration of Result by INEC the grand norm of this appeal.
The objection of the 1st Respondent as to Ground 10 of the Amended Notice of Appeal of the Appellant lacks merit and it is dismissed.
I have earlier quoted the Issue formulated by the Appellant.
Issue one which is married to notorious Ground 10 which reads as follows and I quote again for the avoidance of doubt.
(A) Whether the Election Petition filed on 15th day of May 2007 in respect of the House of Assembly Election into Okitipupa Constituency I Ondo State held on 14th April, 2007 is competent having regard to the Provisions of Section 141 of the Electoral Act 2006.
The Appellant in his Amended Brief of Argument started his argument by quoting verbatim the Provision of Section 141 of the Electoral Act 2006 which provides thus “An Election Petition under the Act shall be presented within 30 days from the date the result of the election is declared”. He argued that Rules of Court ought to be obeyed especially when such rules or law are garbed with imperative word ‘shall’.
He cited the case of KALAMU V. GUMRIN (2003) 16 NWLR (Pt. 874) 493 at 517. He argued that the Provision of Section 141 of Electoral Act 2006 is that an election can only be valid if filed within 30 days of the declaration of result. Here a declaration of result is a condition precedent to the presentation of a petition. Time has to begin from the starting point of declaration.
He posted a question whether the Respondents’ petition was filed within 30 days period stipulated by law. He argued in the negative saying that the petition was filed 14th May 2007 which is exactly 31 days from the declaration of result. He argued that the provision was mandatory and non-compliance with it will nullify the election petition. See OKPAIDO V. UDOIKPANG (1999) 5 NWLR (PT. 604) 595 AT 604, AC V. JANG (2009) 4 NWLR Pt 1132 Page 475 Appeal No. CA/J/EP/GOV/275/2007 decided on 26/2/08. He then quoted pages 23 – 24 of the said judgment which is also quoted hereunder:
“It is immaterial that the event occurred at the last minute of the day in question. Section 141 of the Electoral Act 2006 does not provide nor can it be reasonable inferred therefrom that any of the 30 days must be 24 hours day. In my humble view, the 30 day period includes the whole or part of the first and last days. The court cannot import the idea of “whole day” into the provision of the Act even in the unnecessary attempt to avoid equity a fraction of a day with the whole day. To do so will amount to an abandonment of it s adjudicatory function to embark on an exercise in judicial legislation which will do violence to the expressed intention of the legislature.
The court at whatever level in the judicial hierarchy is not authorized, and is ill-equipped to embark on the execution of a duty constitutionally and exclusively reserved for the legislature. See S.4 (1) and (6) of the Constitution of the Federation 1999. It cannot do so in 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 on which the company was incorporated. Applying once more the analogy of the journey from Makurdi to Jos. If the man is already at the Northern edge of the city at the time the order was given and he takes off from there his starting point is still Makurdi and not the next city Laifa in Nasarawa State. 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” indicates starting 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 Section 151 of the Electoral Act 2006 means from the day, and includes part thereof, the result of the election was declared. The 30 day period stipulated in S. 141 of the Electoral Act started from 16th April 2006 on which the result was declared without prejudice to the time the result was actually declared in so far as it was declared within 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 April 2007 election to the office of the Governor of Plateau State of Nigeria must be presented any time between the 16th day of April, 2006 and 15th day of May, 2006, 30 days from 16th April, 2007 on which the result was declared and inclusive of both dates”.
He also cited the cases of INEC V. HABULNSHIDE & ORS, Appeal No. CA/J/EPT/GOV/317/07 delivered on 21/1/08, AKUME V. LIN (2008) 16 NWLR (PT 1114) 490. He argued that failure to comply with the provision makes the petition void, CHIANSON V. IGA (2004) ALL FWRR (PT 244) 1997 at 20024 C – D. He argued that the court cannot ignore existing legislation. He argued that the instant petition having been filed outside the time allowed by law is incurably bad. He said where a petition is found to be incompetent the only option left to the tribunal the Court of Appeal should strike it out. DICKSON V. BALAT (2004) ALL FWLR (PT 215) 289 at 306
He said the fact that the trial proceeded to judgment is not a waiver. He concluded by saying that jurisdiction being the bedrock of trials in this case without jurisdiction however well conducted is a nullity. See ENEMNO V. DUM (2006) ALL FWLR (PT. 304) 508. He urged the court to resolve this issue one in favour of the Appellant and allow the appeal. The 2nd – 4th Respondents, the body that conducted and declared the election by way of a brief in the guise of Preliminary Objection also submitted that the petition filed by the 1st Respondent is incurably incompetent null and void having been filed outside the statutory period of 30 days in violation of S. 141 of the Electoral Act 2001.
He said the result of the election was declared on the 14th April, 2007 and the petition was filed on 14th May 2007 i.e. 31 days after the said declaration of result. He submitted that the 4th Respondent declared the result of the election on the same day which is 14th April 2007 and returned the Appellant and that the petition was filed on 14th May, 2007. Refers to page 11 of Vol. 1 of Records. He argued that issue of jurisdiction can be raised at any time relying on the Supreme Court case of AWUSE V. ODILI (2004) FWLR (PT. 193) 325 and OBIAKOR V. STATE (2002) FWLR (PT 113) 299 at 301. He also relied on AC V. JANG SUPRA. He urged the court to set aside the judgment of the lower Tribunal and strike out the petition. The 5th and 6th Respondents in the same vein vehemently argued that the petition having been filed outside the prescribed time is incompetent and lacked existence in law.
He argued that courts of law should not be thirsty or hungry for jurisdiction. See ARJAY LTD V. AIRLINE MANAGEMENT LTD 14 NSCQR at 81. He also cited SANYAOLU V. INEC (1999) 7 NWLR (PT. 612) 600 where it was held that the jurisdiction of an Election Petitions Tribunal is limited to the jurisdiction given to it by the enabling law.
He also relied on WAEC V. ADEYANJU (2008) ALL FWLR (PT. 428) 206 at 208 where the Supreme Court held that “where the proceedings in the trial court are a nullity, then in the Court of Appeal is equally a nullity.” He urged this court to uphold his submission and strike out the petition.
The 1st Respondent distilled two issues arising for determination as follows:
(1) Whether the petition forming the bases of this appeal was/is statute barred.
(2) Whether from the totality of the evidence oral and documentary before the lower Tribunal it was justified when it held that the petition was successfully proved and consequently nullified the election of the Appellant.
In his argument on issue one which borders on jurisdiction or petition being statute-barred. He argued that the election results was declared on 14th April, 2007 and that the petition was filed on the 14th May 2007 but however opined that when 30 days are computed exclusive of 14th April 2007 the 30th day will fall on 14th May 2007. He also argued that the 30th day will fall on Sunday 13th April 2007. As Sunday is a Public Holiday the next working day was Monday 14th April 2007. He said without conceding this fact it is too late in the day to raise this point on appeal relying on paragraph 49 (2) of the First Schedule to Electoral Act 2006 which stipulates that-
49 (2) “An application to set aside an Election Petition or a proceeding resulting therefrom for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken final step in the proceedings after knowledge of the deferring”
He relied on OKAFOR V. A.G. ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659, 679. He argued that paragraph 49 (2) oust the jurisdiction of the lower Tribunal and eo ipso this honourable court from inquiring into whether an Election Petition is void where such issue of nullity is not raised Relying on OLANIPEKUN & ANOR V. SULEIMAN MAITO CA/B/149/06 of 19th October 2006, REMI V. SUNDAY (1999) 8 NWLR (PT 613) 92 OLANIYONU V. AWAH (1989) 5 NWLR (PT. 122) 493, ODIRE V. ODOR (1974) 2 SC 31 at 37.
He vehemently was quoting from NYAKO V. AC in that the objection to any Election Petition must be brought within a reasonable time. He also argued that where the last day for the performance of an act as prescribed by law falls on dies no juridicus that act will be deemed to have been done within the prescribed time if it is done on the next working day. Relying on IYIRHIARO V. USOH (1999) 4 NWLR (PT. 597) 41, PDP V. HARUNA (2004) 16 NWLR (PT. 900) 597, AKEREDOLU & ORS V. AKUME (1985) 2 NSCC 1283, YUSUF V. OBASANJO (2005) 16 NWLR (PT 847) at 554.
He in his argument also relied on the Interpretation Act and the Federal High Court Civil Proceedings Rule 2000. He also relied on the English Case of In Re North Exparte Hasluck (1895) 2 QB 265 269-270 where Lord Esher M.R. held that I quote:
“A great deal of difficulty has been caused in the administration of the law, and particularly of the common law by decisions in which technical rules have been formulated which were not true – that is, were not in accordance with the facts of the case. To say that by the common law a part of a day is the whole of a day is to say something which is contrary to the truth; it is a technical rule which was imposed upon the law with the result of bringing the law into disrepute.
4.24. In Re North Ex Parte Hasluck (Supra), the issue was whether by Section 11 of the English Bankruptcy Act of 1890, a debtor commit an act of bankruptcy if execution against him has been levied by seizure of his goods and the goods have been held by the Sheriff for twenty-one days. It was held that the Sheriff must hold the goods for twenty-one whole days, in computation of which the day on which the seizure is made is to be excluded. In his contribution to the Leading Judgment In Re North Ex Parte Hasluck, Rigby L.J., at pages 273 – 274 of the report, held that:
It was contended before us, and it seems at one to have been though to be the law, that where a fact or event was mentioned from which a given period of time was to be reckoned, the court was bound to reckon the portion of the day on which the act was done as though it were a whole day, and to reckon it as the first day of the period. That doctrine underwent a thorough examination in Lest V. Garland (15 ves. 248), at the hand of Sir W. Grant, who considered the case in which the first day had been included or excluded, and came to the conclusion (which I think was inevitable) that there was no general rule on the subject. His own view was that, if there were to be a general rule, it ought to be the one of exclusion, as being more reasonable than one to the opposite effect.
4.25. The position of the law in England in 1895 when In Re North Ex Parte Hasluck was decided was re-affirmed by Denning L.J., as recently as 1973 in Pritam Kaur v. Russels & Sons Ltd (1973) QBD 336, 348 where His Lordship held that:
On September 5, 1967, Mr. Bikar Singh was working in a pit in a foundary. A skip suddenly fell on him ad killed him then and there. On September 7, 1970 his widow issued a writ against his employers claiming damages for breach of statutory duty and for negligence. Her claim was under the Fatal Accident Act 1846 and the Law Reform (Miscellaneous Provisions) Act 1934. We are asked to decide this preliminary point of law: Was the action commenced within the period of three years allowed by the Statutes of Limitation? Or is it statute-barred? The Act of 1939, as amended by the Act of 1954, says that the action “shall not be brought after the expiration of three years from the date on which the cause of action accrued”. The Act of 1946, as amended by the Act of 1954, says that is “shall be commenced within three years after the death.” Nothing turns on the difference in wording. The period is the same in either case. The first thing to notice is that, in computing the three years, you do not count the first day, September 5, 1967 on which the accident occurred.
In the alternative he as he had earlier argued and had been argued before in many other similar cases that 13th May was a Sunday which he termed a Public Holiday and the Electoral Act did not contain any internal rule as to what should be done in such a situation.
He finally in a 23 page argument on this issue urged the court on behalf of the 1st Respondent to answer Issue No. 1 in the negative. Let me at this stage also say that Dr. Ayeni in his usual manner sent in additional authorities which are not only additional authorities but argument in furtherance of his brief.
The Appellant and the Respondent replied him in the same vein. I think additional authorities should not contain any argument as a further argument or a party’s brief. This practice should be discouraged. Let me say without wasting any time that issue one raises a question on jurisdiction which the learned counsel to the 1st Respondent refers to as an irregularity which should be pointed out within a reasonable time. I disagree with him; the question here is as to jurisdiction of the court. Issue of jurisdiction is very paramount and crucial. It can be raised at any stage of the proceedings even on appeal before the Supreme Court. Also the issue of jurisdiction can be raised in any form by any of the parties or suo motu by the court. STATE V. ONEJANUA (1992) 2 NWLR (PT. 221) 33, NATIONAL BANK NIG. LTD. V. SHOYOYE (1977) 5 SC 181, SHELIM V. GOBANG (2009) 12 NWLR (PT 1156) SC 435.
It is also held in the case of SHELIM V. GOBANG SUPRA that it is no longer a moot point that the question of jurisdiction is of absolute importance in the adjudicatory system. It is the life wire in any adjudication where there is no jurisdiction to hear and determine a matter everything done in such want of jurisdiction is a nullity. See also MUSTAPHA V. GOV. LAGOS STATE (1987) 2 NWLR (PT 58) 539, UTIL V. OMOYIVWE (1991) 1 NWLR (PT 166) 160. The issue of jurisdiction in this matter cannot be waived. It is a jurisdictional matter affecting the public in litigation process. See F & F FARMS NIG. LTD. V. NNPC (2009) 12 NWLR (PT 1155) 255 at VOL. 2.
One of the cases relied on by the 1st Respondent is the case of AGBA KOBA V. INEC (2008) 18 NWLR (PT. 1119) 489 is not relevant to this appeal. This case was fought on the provision of Section 34(1) of the Electoral Act 2006 section 34(1) considered therein is totally different from the provision of Section 141 of the same Act. I am also of the view that Section 15 (2) (a) of the Interpretation Act has rendered otiose the applicability of Section 15 (2) (a) of the Interpretation Act upon which the Supreme Court in AGBAKOBA V. INEC. There is a contrary intention in Section 141 of the Electoral Act 2006 with the word ‘within’.
In Chambers 21st Century Dictionary the word ‘within’ means “inside, enclosed by something within those four walls, not outside the limit of something, not beyond”.
Supreme Court case of UWAGBA V. F.R.N. (2009) 15 NWLR Pt 1163 91 at 113 “A fundamental canon of interpretation is that clear and unambiguous provisions of a statute should be given the literal grammatical meaning.”
One of the traits of all laws affecting Election Tribunal is that of essentiality of time. The spirits of the laws that as much as possible such petitions are given expeditious adjudication to enable the parties know their statute. See BALOGUN V. ODUMOSU (1999) & NWLR (PT 592) 590. This court in its various divisions have decided many cases on this point I do not intend to depart from it until the Apex Court has an opportunity to decide otherwise in the interpretation of Section 141 of the Electoral Act. Until then I adopt the quotation supra in the case of AC V. JANG (2009) 4 NWLR Pt. 1132 Page 475 Appeal No. CA/J/EP/GOV/275/2007 delivered on 26th February 2006 at pages 23 – 27 of the said judgment.
I must commend the counsel to parties in this case for the industry put into this case. I appreciate the efforts made by Dr. Ayeni in urging this court to change its stand on the interpretation of computation of time under Section 141 of the Electoral Act 2006. For now I hold that the election petitions filed by the 1st Respondent on 14th May 2007 in an election where the result was declared on 14th day of April 2007 is statute-barred and therefore declare that the lower tribunal was given without jurisdiction and it is liable to be set aside. The judgment of the lower tribunal in this appeal is set aside and in its place I strike out the petition filed by the 1st Respondent on the 14th May 2007.
There shall be no order as to cost
Other Citations: (2009)LCN/3469(CA)
