Agbai Emmanuel Agbai & Anor. V. Independent National Electoral Commission & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A.
This appeal is from the decision of the Abia State Governorship and Legislative Houses Election Tribunal (hereinafter lower Tribunal) delivered on 4th August, 2007 in which the Appellants’ election petition was struck out on the ground that it was filed out of time.
The 1st Appellant and the 6th Respondent were candidates for the National Assembly election at the Bende Federal
Constituency held on the 28th of April, 2007. The Appellant was sponsored by the 2nd Appellant – All Progressive Grand Alliance – (APGA) a registered political party while the 6th Respondent was sponsored by the Peoples Democratic Party (PDP); the 7th Respondent in this appeal. At the end of the said election, the 1st Respondent, independent National Electoral Commission (INEC): the statutory body charged with the conduct of the election through its agents declared and returned the 6th Respondent as the winner of the election.
Being dissatisfied and aggrieved by the return of the 6th Respondent, the Appellants filed the aforementioned election petition before the Lower Tribunal on the 2nd of June, 2007 challenging same on the grounds set out therein.
After service of the petition on her, the 6th Respondent filed a reply thereto and on the 3rd of July, 2007 filed an application dated 29th June, 2007 seeking an order striking out the petition on the ground inter alia that it was filed outside the 30 days prescribed under Section 141 of the Electoral Act, 2006. Annexed to the affidavit in support of that application was a certified true copy of the Independent National Electoral Commission (INEC) form EC8E II: the declaration of election result form.
In reaction to the application, the Appellants filed a counter affidavit to oppose it and after a consideration of the written addresses filed in respect of the application, the lower Tribunal delivered the ruling the subject of this appeal.
The Appellants’ Notice of Appeal contained grounds of appeal from which learned counsel for the Appellants; Mr. Anyalechi Morgan, in the unpaged Appellants’ brief of argument filed on the 19th of October, 2007 formulated four following four (4) issues for determination:-
- “Whether the Honourable Tribunal was right when it disregarded and failed to properly evaluate and consider all the exhibits of the Petitioner/Appellant, copiously showing a different date that it was on 2/5/07 not 28/4/07 that Bende Federal Constituency result was declared; and that 2/5/07 to 2/6/07 is within 30 days.
- Whether having regard to the provisions of paragraphs 4 sub 6(D) of the practice Direction 2007 whether it was not of common knowledge to the electorates in Bende Federal Constituency and INEC Press release stamped and dated including the content did not sufficient (sic) show that the said election result was not declared on 28/4/07.
- Whether the ruling of the Honourable Tribunal was against the weight of evidence
- Whether the Honourable Tribunal gave a fair hearing to the Petition or based on technicalities.
In the 1st – 5th Respondents’ brief of argument filed on 21st January, 2008 but deemed properly filed on the 29th of January, 2008, it was submitted that the only issue before this court is whether the petition before the Tribunal below was statute barred. The brief like that of the Appellants’ is not paged.
For the 6th Respondent, a lone issue too was raised at page 6 of the 6th Respondent’s brief of argument filed on the 2nd of November, 2007 in the following terms:-
“Whether the Tribunal was right in its conclusion that the petition was not presented within 30 days from the date the Result of the Election was declared.”
Looking at the ruling of the lower Tribunal which is at pages 461 – 3 of the record of appeal along with the grounds of appeal, I am in agreement with the learned counsel for the Respondents that the crucial and relevant issue that call for decision in this appeal is in the terms formulated by the learned senior counsel for the 6th Respondents as set out above. The real and genuine grievance of the Appellants against the ruling of the lower Tribunal is no more than that their petition was struck out on the ground that it was statute barred or filed outside the 30 days time limit for the presentation of an election petition under the Electoral Act 2006. For that reason, I intend to consider this issue and the submissions of learned counsel thereon in the determination of the appeal.
Before then however, I have observed that the learned Senior Counsel who settled the 6th Respondent’s brief of argument has raised a preliminary objection at page 4 of the Respondents’ brief on the three (3) grounds set out at pages 4 & 5. All I need say about the grounds of the objection is that they are purely technical and do not affect the validity and competence of the Appellants’ Notice of Appeal. For the 1st ground, there is no doubt about the names and addresses of the parties affected by the appeals since the parties directly affected in this appeal are before the court and have reacted to the appeal. For the 2nd ground, though grounds 1, 2, 3, 4 & 5 are prolix and could have been framed in so many better ways the compliant in each of them is quite clear and conveys sufficient notice thereof to the Respondents. These and the ground 3 of the objection have been effectively taken care of by the adoption of the lone issue formulated by the 6th Respondents’ Counsel for the determination of the appeal. That apart, the attitude of the courts has for a long time now been to treat election matters as special in nature and character that technicalities are not allowed to frustrate hearing on the merits. For these reasons, the objection by the 6th Respondent to the Notice and grounds of appeal is overruled.
I now turn to the submissions of learned counsel on the germane issue in the appeal.
The learned counsel for the Appellant had submitted that the lower Tribunal had failed to propely consider or disregarded Exhibits Ai, Aii and CA – EXH1 and that the Form EC8E II relied on by it was sufficiently challenged. He maintained that the result of the election was declared on the 2nd of May 2007 and that the petition was presented on 2nd June 2007 and so it was not statute barred. The cases of OLUWOLE V. ABUBAKAR (2004) 10 NWLR (882) 555, ABATAN V. AWUDU (2004) 17 NWLR (902) 430, JIBRIN V. BABA (2004) 16 NWLR (899) 243.
For the 1st – 5th Respondents, it was submitted that the Form EC8E II attached to the 6th Respondent’s affidavit was conclusive evidence of the date of declaration of result of the election. The cases of IYIHIARO V. USOH (1999) 4 NWLR (597) 41 @ 45 and PDP V. HARUNA (2004) 16 NWLR (900) 597 were cited and retied on the submission. It was also argued that the Appellants did not produce another declaration of result form showing another date than that contained in the one presented by the 6th Respondent and that all the other exhibits sought to be relied on by the Appellants came into being after the lower Tribunal had dealt with the matter. Learned counsel for the 1st – 5th Respondents then adopted the submissions in paragraphs 4.5 – 4.11 of the 6th Respondent’s brief and urged us to hold that the appeal is devoid of merit. The learned Senior Counsel for the, 6th Respondent had submitted on the issue that the appellants did not file any document as exhibit to their counter affidavit even though a document was referred to as Exhibit Ai therein. That the Exhibits referred to as Ai and Aii were only attached to the written address by the Appellants and so the only documentary exhibit before the lower Tribunal was the Form EC8E II attached to the 6th Respondent’s affidavit. Further, that the lower Tribunal was therefore right when it concluded that the declaration of result was the conclusive evidence of the date of the declaration. The statement of SALAMI, JCA at page 49 of IYIHIARO V. USOH (supra), the cases of PDP V. HARUNA (supra), ALATASHA v. ASIN (1999) 5 NWLR (601) 32 and SOWEMIMO v. AWOBAJO (1999) 7 NWLR (610) 335 were relied on. It was also submitted that the Form EC8E II being a certified copy is by Section 141(1) of the Evidence Act presumed genuine and so is admissible in law to prove its contents on the authority of AGAGU V. DAWODU (1990) 7 NWLR (160) 66.
Furthermore, it was contended that Exhibits 5 and Aii of the appellants are uncertified extracts from newspaper publications and so cannot take the benefit of the presumption in section 116 of the Evidence Act since they are not printed by the Government Printer. The cases of ONEH V. OBI (1998) 7 NWLR (611) 487, NGIGE V. OBI (2006) 14 NWLR (999) 1 @ 187, RNHW V. SAMA (1991) 2 NWLR (1964) 77 were relied on for the submission. According to the learned Senior Counsel Exhibit Aii at page 460 of the record is a spurious and worthless document because it is undated and uncertified, relying on the cases of OMORINOBOLA II V. MIL. GOV. OF ONDO STATE (1995) 9 NWLR (418) 201 @ 222, AMAIZU V. NZERIBE (1989) 4 NWLR (118) 755, FAWEHINMI V. IGP (2000) 7 NWLR (666) 481 @ 525, ALAMEYESEIGHA V. FRN (2006) 16 NWLR (1004) 1 @ 69 – 70. He said that Tribunal had properly dealt with the processes before it and found rightly that the Appellant petition was filed outside the 30 days limited for the presentation of an election petition under Section 141 of the Electoral Act 2006. That though the lower Tribunal referred to 29th April 2007, it is of no moment since it is clear that the Tribunal relied on the declaration of result form EC8E II attached to the motion papers.
Finally, citing the cases of EGBE V. ADEFARASIN (1987) 1 NWLR (47) 1, ELEBANJO V. DAWODU (2006) 15 NWLR (1001) 76 @ 116-7, he said the 6th Respondent as a defendant was entitled to file a motion to strike out in limine an action which is statute barred. We were urged to dismiss the appeal for lacking in merit.
At this stage, I have observed that the 7th Respondent, though the processes in the appeal did not react or respond to any of them. No brief of argument was filed for the 7th Respondent in the appeal and it was not represented at the hearing notice of which was duty served on it. It is therefore correct and proper to assume that the 7th Respondent had chosen to opt out of the appeal or at least blow a muted trumpet.
An expedient way to start a determination of the issue of whether the Appellants’ petition, regard being had to the evidence placed before the lower tribunal, was filed out of time or statute barred is to look at the provisions of the law prescribing and limiting the time for the presentation of an election petition. The relevant provisions of the law are to be found in Section 141 of the Electoral Act, 2006, which says:-
“141. An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”
These provisions are so straightforward, clear and in simple and plain language that no ambiguity exists in them as to present any difficulty whatsoever in their interpretation. They are therefore by the now elementary principle of statutory interpretation known as the “golden rule or canon of interpretation” to be ascribed their ordinary grammatical and plain meaning within the context they are used by the legislature. Similar provisions in previous electoral laws had been variously interpreted by the courts before and in all cases the provisions were held to have limited the time for the presentation of an election petition to thirty (30) days from the date the result of the election in question was declared. In other words, by the said provisions an election petition was required to be presented or filed within thirty (30) days from the date the declaration of the result of the election was made. Initially there was a view that in the interpretation of such previous provisions, there was the need to have resort to the provisions of the Interpretation Act in the computation of the thirty (30) days time limit. However the position as far as the provisions of Section 141 of the Electoral Act, 2006 are concerned is so far that the provisions are clear and unambiguous such that they do not admit of resort to any external aid in their interpretation. That resort cannot properly and appropriately be had to the interpretation Act in the computation of the 30 days clearly provided for and prescribed in the provisions. Put another way, in the computation of the 30 days, the provisions of the Interpretation Act are inapplicable or not applicable since the provisions of Section 141 are clear and explicit to exclude such application.
The above position is premised on the established principle of law that if the language used by the legislature is clear and explicit, the Judge must give effect to it because in such situation, the words of the statute speak the intention of the legislature and no extraneous aid should be used to distort such clear intention. See UGWU V. ARARUME (2007) 12 NWLR (1048) 367 @ 432 PARAGRAPH H & 438 PARAGRAPHS D – E, BAKARE V. INEC (2007) 17 NWLR (1064) 606 @ 621, OGBEBOR V. DANJUMA (2003) 15 NWLR (843) 434 @ 435, ATTORNEY-GENERAL OF EKITI STATE V. A. G. FEDERATION (2001) 10 SCNJ 117 @ 146, ALATAHA V. ASIN (1999) 5 NWLR (601) 32, GARBA V. FCJSC (1988) 1 NWLR (71) 449, OJOKOLO V. ALAMU (1987) 3 NWLR (61) 377.
With the above foundation firmly laid, I now turn to the evidence before the lower Tribunal on the issue. I should start by saying that the parties are ad idem on the facts that the election in dispute held on the 28th of April, 2007 and that the Appellants’ petition was presented or filed on the 2nd of June, 2007. These are settled facts between the parties. The crucial dispute is as to when the result of the election was declared. As seen earlier, the position of the Appellants is that the result was delayed and declared on the 2nd of May, 2007, relying on the Exhibits Ai, Aii and Exhibit 5, which were attached to the written address of the Appellants’ in respect of the 6th Respondent’s application to strike out the petition.
On their part, the Respondents particularly the 6th Respondent say that the result of the election was declared on the 28th of April, 2007, relying on the declaration of result form EC8E II attached to the affidavit in support of their application as Exhibit A. It was submitted for the 6th Respondent that the declaration of result form was the only evidence before the lower Tribunal at the time the application to strike out the Appellants’ petition was considered and decided. The record of appeal before us show that the Appellants had filed a counter affidavit to the application but did not annex or attach any document to it as an exhibit on which they intended to rely in opposing the application. In fact no document was relied on by the appellants in opposing the 6th Respondent’s application except the mention of “Exhibit “Ai” in the written address filed in respect of that application.
The Appellants in their address had sought to discredit the form EC8E II attached to the 6th Respondent’s affidavit on the ground inter alia that it was not signed by the Returning Officer and not dated. However a cursory look at the form EC8E (II) which is at page 153 of the record reveals that the form was dated the 28th April 2007 and signed by the Returning officer. The said form was certified by the Admin. Secretary of the Independent National Electoral Commission (INEC), Abia State to be a true copy of the original and so an authentic declaration of the result of the election conducted in the constituency to which it relates. The Appellants have not suggested let alone contested that the Admin Secretary was not an officer authorized to certify the form EC8E II, as a true copy of the declaration of result of the election in question as required by Section 111 of the Evidence Act. That being so, the form EC8E II attached to the 6th Respondent’s affidavit as Exhibit ‘A’ qualifies as admissible evidence in proof of the contents therein under Section 112 of the Evidence Act. Being admissible piece of evidence, the said Exhibit ‘A’ was rightly presumed by the lower Tribunal pursuant to Section 114 of the Evidence Act to be genuine since it was substantially in the form and purports to have been executed in the manner directed by law. See AINA V. JINADU (1992) 4 NWLR (233) 91. BELLO V. RENGIM (1991) 7 NWLR (206) 668, AGAGU V. DAWODU (supra) ONOBRUCHERE V. ESEGINE (1986) 1 NWL-R (19) 799. The form being genuine and admissible in evidence as proof of its contents, it is conclusive evidence of the results and the date of the declaration of the results contained therein in the absence of a contradictory evidence of the same quality.
The evidence sought to be relied on by the appellants was a copy of a “Press Release” said to have been received by BCA Umuahia: DG’s office on the 2nd of May, 2007 marked as Exhibit ‘Ai’ attached to their written address. That is the only document referred to in the address of the Appellants on the 6th Respondent’s application in respect of the date of the declaration of the result of the election. The first thing noticed of the document is that it was not dated by the person who signed it for the Resident Electoral Commissioner, Abia State. In addition, the copy was not properly certified as required by provisions of Section 111 of the Evidence Act. The document merely carries the words “CERTIFIED TRUE COPY” at the foot and nothing more. In the absence of the date, the name and title of the officer who made the certification as required by Section 111 of the Evidence Act, the copy of the “PRESS RELEASE” does not qualify as a properly certified true copy which can be admissible evidence of its contents. See OMORINOBOLA II V. MIL GOV. OF ONDO STATE, AMAIZU V. NZERIBE ALAMEYESEIGHA V. FRN (all supra).
The other exhibit sought to be used were copies of newspaper pages which do not show on their faces that they are produced from proper custody and kept substantially in the form required by law as provided under section 116 of the Evidence Act. The Exhibits like the “PRESS RELEASE” only carry the words “certified true copy’ ‘without indicating the name, title or designation of the officer who made the certification and even the date thereof.
The said Exhibits therefore suffer the same vital defect as the “PRESS RELEASE” and are of no value since they are not in law admissible in proof of their contents.
In the above circumstances, the Exhibit ‘A’ of the 6th Respondent remained the only piece of relevant and admissible evidence standing before the lower Tribunal on the date of the declaration of the result of the election in question. Consequently, the lower Tribunal was right when it concluded that:-
“The Declaration of Result is the conclusive evidence of the date of the declaration.”
The cases of IYIHIARO V. USOH, PDP V. HARUNA, ALATASH V. ASIN & SOWEMIMO V. AWOBAJO (all supra) cited by the learned Senior Counsel for the 6th Respondent support that finding. See also INEC V. RAY (2004) 14 NWLR (892) 92, AJUDUA v. NWOGU (NO. 2) (2004) 16 NWLR (898) 79, EBU V. ODUN (2004) 14 NWLR (892) 76, ABANA V. OBI (2004) 10 NWLR (881) 319, The form ECBE II clearly show that the result of the election in the Bende Federal Constituency was declared on the 29th of April, 2007 and NOT 29th April, 2007 as erroneously stated by the lower Tribunal in its ruling at page 444 of the printed record of appeal. The error in stating the correct date set out in the Exhibit ‘A’ (Form EC8E II) by the lower Tribunal has no real and adverse effect on its ruling on the date of the declaration of the result of the election as far as the petition of the Appellants was concerned. The Exhibit ‘A’ speaks for itself clearly and undoubtedly.
With the result of the election declared on the 28th of April, 2007, by the provisions of Section 141 of the Electoral, Act 2006, an election petition challenging same had to be presented or filed in the lower Tribunal within thirty (30) days from the date of the declaration. The provisions of the section are in the following terms:-
“141. An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”
Going by the above provisions, since the result of the election in question was declared on the 28th of April, 2007, the Appellants or any other eligible and competent candidate and/or party that participated in the election had thirty (30) days from that date, within which to file or present an election petition to question or challenge such declaration. In other words, for such a petition to be in compliance with the above provisions of Section 141, it must mandatorily be filed or presented to the lower tribunal not later than the 30th day from the 28th of April, 2007; the date the result was declared. A petition not filed within but outside the 30 days period limited by the section would be out of time and in contravention of the mandatory provisions. Such a petition would be statute barred and therefore incompetent. EMEKA V. EMODI (2004) 16 NWLR (900) 433, PDP V. ABUBAKAR (2004) 16 NWLR (900) 455, MOGHALU v. NIGIE (2005) 4 NWLR (914) 1.
Now by the current settled interpretation of Section 141 of the Electoral Act 2006 and other similar previous provisions, the computation of the 30 days period starts or commences on the date of the declaration of the result of the election. The time starts to run on the date of the declaration, which means that the first day of the 30 days period is the date of the declaration. Put another way the day of the declaration is inclusive of the 30 days provided in the provisions of the section. See OGBEBOR V. DANJUMA (2003) 15 NWLR (843) 403, ALATASHA V. ASIN (supra) FADERE V. ATT. GEN. OYO STATE (1982) 4 SC 1, APPEAL NO. CA/J/EP/GOV/244/07, KUMAILA V. SHERIFF & ORS (not yet reported) delivered on 21st January, 2008 by this court at the Jos Division.
Going by the above position, since the 28th of April, 2007 was the first of the 30 days period within which the Appellants were to have presented or filed their petition the 30th and last day for so doing was therefore the 28th of May, 2007, since the 27th was a Sunday. Accordingly the 30 days limited by the provisions of Section 141 for the Appellants to have filed or presented their petition ended or expired on the 28th of May, 2007. Both 28th of April, 2007 and the 28th of May, 2007 are inclusive in the computation of the 30 days period limited for the presentation of the petition.
It may be recalled that I had elsewhere in this judgment set out facts about which the parties to this appeal are agreed. One of them is that the Appellants’ petition was presented or filed on the 2nd of June, 2007. In view of the finding that the result of the erection was declared on 28th of April, 2007 and the time for presentation of the petition ended or expired on 28th of May, 2007, the petition filed or presented on the 2nd of June, 2002 was undoubtedly presented outside the period limited by section 141. It was presented or filed outside the period prescribed by Section 141 and so it was accordingly statute barred.
But assuming that the result of the election was indeed declared on the 2nd of May, 2007 as strenuously and forcefully contended by the learned counsel for the Appellants, the time for the presentation or filing of a petition to challenge or question the declaration and return started to run from that day. Accordingly the 2nd of May, 2007 was the first of the thirty (30) days period while the last or 30th day was the 31st of May, 2007. Consequently, for the Appellants’ petition to have complied with the provisions of Section 141, should have been presented or filed before or on the 31st of May, 2007, the last day of the 30 days period limited for so doing. Since it was filed on the 2nd of June, 2007, it was clearly filed two (2) days outside the time prescribed by the law and therefore once again statute barred. So even if the contention of the learned counsel for the Appellants on the date of the declaration of the result of election was accepted and used in the computation of time, the petition filed on 2nd June, 2007 was still out of time and therefore incompetent. In the circumstances, head or tail, the Appellants’ petition was presented or filed outside the statutory period of time prescribed for doing so. It is barred by that statute. It is in such a situation incurably incompetent and the lower Tribunal was right to have struck same out of it cause list.
Before ending this judgment, I am constrained to observe that the Appellants’ brief of argument was so brief that it did not perform or serve the purpose for which brief of arguments were meant to serve in appeals. Submissions contained in a brief of argument are supposed to be succinct, elaborate and to demonstrate a good understanding of the law on the issues canvassed therein. Arguments should clearly and convincingly be proffered on the known position of the law on the issues submitted to the court for determination in a manner that would assist the court to easily decide the crucial or real issues in the appeal. See UNIPETROL V. EDO STATE BOARD OF INTERNAL REVENUE (2001) 10 NWLR (720) 167, UBA V. OGUNSANYA (2003) 8 NWLR (821) 111, HAWAD INT’L SCHOOL v. MIMA PROJ. VENTURES (NO. 2) (2005) 1 NWLR (908) 574. A brief of argument such as the Appellants’ brief in this appeal, which is in skeletal form without the necessary submissions and relevant authorities to ossify and amplify the issue sufficiently, is of little assistance in the determination of an appeal.
In the final result, for the reasons set out in this judgment, I find no merit in the appeal and dismiss same. The decision of the lower Tribunal striking out the Appellants’ petition for being statute-barred delivered on the 4th of August, 2007 is hereby affirmed.
There shall be costs to be paid by the Appellants assessed at N30,000.00 in favour of the 6th Respondent.
Other Citations: (2008)LCN/2715(CA)
