Alhaji Rabilu Ishaq V. Muhammed Adamu Bello & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
This appeal and two Cross appeals arose out of Petition No. EPT/KNS/SEN/36/07 dated 22nd May, 2007 and filed at the National Assembly Election Tribunal holden at Kano in which the Tribunal struck out the said petition in limine. On 21st April, 2007, the 2nd and 3rd Respondents conducted elections into the Senate of the Federal Republic of Nigeria including the Kano State central Senatorial District. On the date of the election, the appellant who alleges that he was lawfully nominated by the Peoples Redemption Party (PRP), went to cast his vote only to discover that his name, photograph, his party’s name and symbol were not reflected on the ballot papers for the election, the implication of which is that the petitioner has been unlawfully excluded by the 2nd Respondent from contesting the Election having been lawfully sponsored and nominated by his party the PRP. At the end of the election the 3rd Respondent declared the 1st Respondent as winner of the election.
Dissatisfied with the turn of events, the Petitioner filed a petition dated 22nd May, 2007 on the same date praying for the nullification of the Kano Central Senatorial Zone Election and an order that the 2nd Respondent conduct another election and that the Petitioner’s name, photograph, his party’s name and symbol be reflected on the Election ballot papers. The grounds for the petition were that the Petitioner, a duly nominated candidate in the Election, was unlawfully excluded from the Election by the 2nd Respondent.
The 1st Respondent filed a motion on Notice dated 18th September, 2007 on the same date praying the Tribunal to strike out the petition for being incompetent and for lack of Jurisdiction because the Petitioner was not a candidate at the Election he was seeking to challenge. The Petitioner filed a counter affidavit against the motion. Both counsel filed written addresses. On 4th October, 2007, the Tribunal in its Ruling held that the Petitioner had no locus standi to present the Petition since he was not a candidate at the Election and that the only person competent in law to present the Petition under Section 145(1) (d) of the Electoral Act, 2006 is the P.R.P. Accordingly, the Tribunal struck out the petition.
Dissatisfied with the Ruling of the Tribunal, the Petitioner filed Notice of Appeal dated 22nd October, 2007 on the same date. The said Notice of Appeal contains four grounds of appeal. The 1st Respondent filed Notice of Cross Appeal dated 24th October, 2007 on 25th October, 2007.
From the four grounds of appeal the Learned Counsel for the appellant decoded three issues for determination. The Issues are:-
- Whether the Tribunal was right to hold that the Appellant lacked the locus standi to institute the Election Petition.
- Whether the Tribunal was right to hold that the PRP was the only competent party to present the Petition.
- Whether the Tribunal erred in law in determining a substantive issue in the Petition at an interlocutory stage thereof.
The Learned Counsel for the 1st Respondent did not formulate any issues but adopted the issues of the Appellants. The 2nd and 3rd Respondents also adopted the issues as distilled by the appellants. I shall determine issues one and two together and issue No.3 separately.
The Learned Counsel for the Appellant submitted on the first issue that the Appellant having fulfilled the requirements of the law to’ contest the Election as a duly nominated candidate of his party, the PRP, the mere fact that the 2nd Respondent, in violation of the provisions of Section 45 of the Electoral Act, 2006, failed to reflect the symbol of the PRP on the ballot papers for the election, cannot deprive the Petitioner of his status as a candidate for the Election within the meaning and intendment of the provisions of Section 144 of the Electoral Act 2006. That the appellant’s locus standi is derivable and protected by Section 145(d) of the Electoral Act 2006. Relying on the case of Senator Abraham Adesanya Vs. President Federal Republic of Nigeria & Anor (1981) 5 S.C. 112, the appellant submits that locus standi is the right or competence to institute proceedings in a Court for redress or assertion of a right enforceable at law.
Furthermore, that the case of Okonkwo Vs. INEC (2004) 1 N.W.L.R. (Pt. 854) 242 relied upon by the Tribunal in striking out the petition does not apply to this case because the Petitioner in that case was not a candidate. That in the instant case, the Petitioner was a candidate and he ought not to cease being a candidate because of the non reflection of his name and that of his party and its symbol on the ballot papers.
As to whether the Tribunal was right to hold that the PRP was the only competent party to present the Petition he submitted that the Tribunal erred because the provision of Section 144(1) of the Electoral Act, 2006 dealing with who could present Election Petition are patent and are to the effect that either a candidate in an election or a political party which participated in the Election may institute a petition. Furthermore, that Section 144(1) of the Electoral Act, 2006 neither specifically provides nor does it imply that unless and until a lawfully nominated candidate for an election institutes a Petition along with his party he cannot benefit from the right to ground his Petition upon Section 145(1)(d) thereof. He then urged the Court to hold that the non – joinder of the appellants’ party in the petition does not vitiate the appellant’s right to bring this petition.
The Learned Counsel for the 1st Respondent submitted that the kernel of the Appellants’ case is rested on the fact that he was validly nominated but was unlawfully excluded from the contest meaning that he has by himself admitted that he was not a candidate properly so called at the election. That for the Appellant to have the locus standi to file a Petition, he has to comply with the tenor of the provision of Section 144(1) and Section 145(1) of the Electoral Act, 2006.
It was the further contention of Learned Counsel that although the word “Candidate” has not been defined in the Electoral Act 2006, its scope cannot be extended to mean and refer to a person who had the intention to contest an election but who was not allowed to contest. He cited and relied on the case of Adebusuyi Vs. Oduyoye (2004) 1 N.W.L.R. (Pt. 854) page 406 at 437 Paragraph B – H, 439 paragraph D.
Furthermore, that even if the Appellant has a cognizable ground for filing a petition, and having not contested the election, he needed to do it through his Political Party placing reliance on the case of Okon Vs. Bob (2004) 1 N.W.L.R. (Pt 854) 378 and Okonkwo Vs. INEC (2004) 1 N.W.L.R. (Pt 854) 242. He urged the Court to resolve this issue against the appellants.
On the second issue, he adopted his argument in respect of the first issue and -added that the only person that can bring an action and complain in an election petition for valid nomination but unlawful exclusion is a political party which participated in the election by virtue of Section 144(1) of the Electoral Act, 2006.
The submissions of the Learned Counsel for the 2nd – 3rd Respondents on the 1st and 2nd issues are on all fours with that of the 1st Respondent. In the circumstance, I do not intend to summaries them here. The Learned Counsel for the 2nd and 3rd Respondents also urged this Court to resolve issues 1 and 2 against the appellants.
It is important to note from the out set that the capacity for a party to institute an action in Court is very paramount and in deed the fountain – head as it were. This is so because if a party has no capacity to institute an action in Court, he is said to be a busy body and the logical consequence is that the Court will not have jurisdiction to listen to him. That capacity to sue is usually referred to as locus standi which the Supreme Court in Senator Abraham Ade Adesanya Vs. President of the Federal Republic of Nigeria & Anor (1981) All N.L.R. 1 at 21 defined as follows:-
“The term ((Locus standi” denotes legal capacity to institute proceedings in a Court of law. It is used interchangeably with terms like “standing” or “title to sue”.”
Whenever there is a challenge to the capacity or standing of a party to bring an action in Court or an election petition before a tribunal, the Court or tribunal is obliged to inquire as a first charge matter whether or not the action is competent because it is upon the competence of a petition that rests the tribunals’ competence to entertain it. Where a Court or Tribunal entertains a matter it has no jurisdiction, such trial and its outcome becomes a nullity. See Madukolu Vs. Nkemdilim (1962) 2 S.C.N.L.R. 341. A final pronouncement by a Court or tribunal without jurisdiction is an exercise in futility as you cannot put something on nothing. It will certainly collapse. See Macfoy Vs. U.A.C. (1962) A.C. 152.
In the instant case, the Appellant as petitioner stated in his petition in paragraph 5 thereof that he “was validly nominated but unlawfully excluded from the election”. Also in paragraph 4(i) of the petition, the Petitioner averred that on 21st April, 2007 i.e the date of the election, both his name, his portrait together with his party’s’ name and signs or logo were not reflected on the ballot papers used in the election. In other words, the Appellant is saying that he was not allowed to be one of the candidates in the election although he was validly nominated by his party. By Section 32 (1) of the Electoral Act, 2006 and the provisions of the 1999 Constitution, a political party has a right to present a candidate at an election. When Section 144 (1) and 145(1) (d) of the Electoral Act 2006 are read together, it will clearly show that both the person who was validly nominated by his party to contest an election and he is screened and cleared by the Electoral body to contest the election but was later excluded from the contest and the political party that nominated the person for the election are entitled to present an election petition. This is so because the words used in the two Sections are clear and unambiguous. The underlying principle of statutory interpretation is that the meaning of a legislation must be collected from the plain and unambiguous expressions used therein rather than from any notions which may be entertained as to what is just and expedient. See Buhari Vs. Yusuf (2003) 14 N.W.L.R. (Pt. 84) 446 at 509, Lawal Vs. G.B. Onwanu (1972) 3 S.C. 124, Ojokolobo Vs. Alamu (1987) 3 N.W.L.R., (Pt. 16) 377, Berliet Nig. Ltd. Vs. Kachalla (1995) 9 N.W.L.R. (Pt. 420) 478. There is no doubt that a candidate at an election or a political party which participated at the election may present an election petition. A petition may be filed by the candidate or by the political party or by the two of them jointly. See Adebusuyi Vs. Oduyoye (2004) 1 N.W.L.R. (Pt. 854) 406, Idris Vs. ANPP (2008) 8 N.W.L.R. (Pt. 1088) 1.
Where however the grouse of the petitioner is that of valid non1ination but unlawful exclusion as provided for in Section 145(1)(d) of the Electoral Act 2006, it seems to me that the excluded candidate cannot present the petition alone without the party which nonminated him being joined. Section 145(1)(d) provides:-
“An election petition may be questioned on any of the following grounds, that is to say:
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. ”
The words “the petitioner or its candidate” to my understanding means “the political party or the candidate it nominated”. This makes the petitioner the political party which sponsored the candidate. It cannot be the other way round. Therefore, in a situation as in this case, it is the political party with its candidate that should present the petition. It is the political party which nominated the candidate so excluded that should lead the protest against the exclusion of its candidate. The party was a necessary party in the petition as any order to be made by the Court or Tribunal would certainly affect her interest. See Okon Vs. Bob (2004) 1 N.W.L.R. (Pt. 854) 378 at page 400 B – H. Since the PRP was not part of the petition, the appellant was therefore not competent to present the petition alone. See Okonkwo Vs. INEC (2004) 1 N.W.L.R. (Pt. 854) 242. The Lower Tribunal was therefore right in striking out the petition. The 1st and 2nd issues are therefore resolved against the appellant.
On the 3rd issue, the Learned Counsel for the appellant submitted that the Tribunal erred in determining the competence of the ground of the petition at an interlocutory stage. He referred to the judgment of the Tribunal on page 371 of the record of appeal and urged this Court to hold that it was unlawful for the Tribunal to have delved into the issue as to the candidacy of the appellant at the interlocutory stage. He cited and relied on the cases of Orji Vs. Zaria Industries Ltd. (1992) 1 N.W.L.R. (Pt. 216) 124 and Akuma Industries Ltd. Vs. Ayman Enterprises Ltd. (1999) 13 N.W.L.R. (Pt. 633) 68.
In his reply, Learned Counsel for the 1st Respondent submitted that the crux of the Appellants’ case was that he was validly nominated but unlawfully excluded and in determine his capacity to sue, that the tribunal never delved into the issue whether or why he was excluded from the contest which is the substance of the main case. That since it is the statement of claim that determines the propriety or otherwise of the status of a plaintiff or petitioner, the Court below merely looked at his petition without making any comment on the substantive matter. He urged the Court to resolve this issue against the appellant. The Learned Counsel for the 2nd and 3rd Respondents made the same submission like the 1st Respondent. I need not summarize it here.
Let me reiterate here that locus standi is a crucial and fundamental jurisdictional question that can be raised at any time during the trial either as a preliminary issue or even for the first time on appeal. It is therefore the duty of the Court or Tribunal to look into it and resolve it before proceeding to hear the substantive matter as the case may be. This exercise is not done in vacuum. The Court will have to look at the statement of claim or petition as in this case to determine the propriety or otherwise of the status of the petitioner to sue vis-a-vis the provision of the Electoral Act 2006. See Adebusuyi Vs. Oduyoye (Supra) Adeyemi Vs. Opeyori (1976) 9 – 10 S.C. 31, Tukur Vs. Government of Gongola State (1989) 4 N.W.L.R. (Pt. 117) 592, Okulate Vs. Awosanya (2002) 2 N.W.L.R (Pt. 646) 53D.
However, in determining a preliminary matter a Court or tribunal should be careful not to delve into the substantive issue at an interlocutory stage. At this stage, the Court should avoid making statements which give impression that it has made up its mind on the substantive issue on trial before it. Where a Court makes pronouncement touching the substantive matter at an interlocutory stage, it definitely will prejudice the trial of the claim before that Court and this is not in the interest of justice. See Akuma Industries Ltd Vs. Ayman Enterprises Ltd (1999) 13 N.W.L.R. (Pt. 633) page 68, Orji Vs. Zaria Industries Ltd & Anor (1992) 1 N.W.L.R. (Pt. 216) 124.
I am however not able to see where the Lower Tribunal delved into the substantive matter while resolving the issue of locus standi before it. The pith and substance of the Appellants’ petition at the Tribunal was that he was validly nominated but unlawfully excluded. That was all. Nowhere in the entire ruling of the Tribunal did they make any statement as to whether or why the appellant was excluded. No. The tribunal never did that. The tribunal merely said that the Appellant had no locus to bring the petition. That is all. The Appellant failed to show any statement made by the Tribunal which suggested that it delved into the substantive matter. As it is therefore, this issue is resolved against the appellant. In sum therefore, I hold that this appeal lacks merit and is accordingly dismissed. I affirm the order of the Lower Tribunal dated 4th October, 2007 which struck out the petition of the Appellant since he could not present the petition alone without his party the PRP. I award costs of N20,000 = to the 1st Respondent only.
Cross Appeal
In the same motion on Notice dated 18th September 2007, and filed on the same date by the 1st Respondent in the main appeal, now Cross Appellant, the Cross Appellant raised the issue of the difference in the name of Alhaji Rabilu Ishaq that appears on the petition as the petitioner and Alhaji Rabiu Ishaq that appeared on INEC list of nominated candidates and other documents attached to the petition. After hearing argument on the matter, the Tribunal held on page 376 of the Record as follows:-
“It is our humble view that the Electoral body has contributed to the mess in the spelling of the petitioners’ name. In the acknowledgn1ent of receipt of Form CF 001, INEC puts the name of the petitioner as RABID ISHAKA whereas in the list of nominated candidates for the Senate 2007, it was written as ‘ALHAJI RABIU ISHAQ’ as No 13 on the list. We make reference to these two documents because they were attached to the petition.
Our view is that all the above amounts to spelling mistakes as to the name of the petitioner. It is a misnomer which can be corrected by an application properly brought.”
Against this aspect of the decision of the Tribunal, the Cross Appellant filed Notice of Appeal dated 24th October, 2007 and filed on 25th October, 2007, containing two grounds of appeal. Out of these two grounds of appeal, the Cross Appellant filed two separate Cross Appellant briefs purporting to have two Cross Appeals which at the hearing, the Learned Counsel for the Cross appellant applied that the two Cross appeals be heard together.
On the first Cross appeal he formulated two Issues as follows:-
“1. Whether the name of Rabilu Ishaq used in commencing the petition and Rabiu Ishaq that appeared on the INEC list of nominated Candidates for the Kano Central Senatorial Zone are the same.
If the two names are not the same whether the difference could be termed a misnomer which can be cured.
- Whether such a misnomer has been cured by the petitioner before the application to strike out the petition has been heard and determined. ”
The Appellant/Cross Respondent however submitted one issue for determination thus:-
“Whether the absence of letter “L” in the first name of the Appellant/Cross Respondent is a mere misnormer or a serious error capable of materially affecting the substance or merit of the petition.”
In what is considered by the Cross Appellant as the second Cross-appeal which appears to emanate from the second ground of appeal, two issues are formulated for consideration.
These are:
“1. Whether the 1st Respondent filed his petition within 30 days from the date of the result of the elections was declared as envisaged by section 141 of the Electoral Act 2006.
- Whether the Tribunal was right in the computation of time commencing the next day after the day of the declaration of results using the interpretation Act in aid of interpreting the provisions of section 141 of the Electoral Act 2006 which is very clear and unambiguous”
Learned Counsel for the Cross Respondent also submitted two issues for determination. The issues are as follows:-
“1. Whether the Tribunal was right to hold that the petition was filed within 30 days as contemplated by section 141 of the Electoral Act, 2006.
- Whether the Tribunal was right to hold that the date of the declaration of the result of the Election is excluded in the computation of 30 days.”
One issue 1 wish to observe in this appeal is that it is an unusual thing to have one notice of appeal or Cross – appeal giving birth to two appeals or Cross appeals respectively. This is so especially where the Cross appeals emanate from the same ruling or judgn1ent of the Court. I still cannot see the wisdom of the Learned Counsel for the 1st Respondent/Cross appellant having to file what he calls two Cross appeals when he filed only one Notice of Cross appeal containing two grounds of appeal. In the said Notice of Appeal, the first ground relates to issues canvassed in one Cross appeal while the second ground of appeal relates to issues canvassed in the other Cross appeal. This is novel and absurd. Rather than treat these Cross appeals as two, I take it as one Cross appeal having two grounds of appeal as contained in the said Notice of appeal dated 24th October, 2007 and filed on 25th October, 2007.
Again, having filed one ground of appeal each for the supposed two Cross appeals, it was therefore wrong to formulate two issues from each of the grounds of appeal. This translates to four issues from two grounds of appeal. It is now trite that while Courts may tolerate equal number of grounds and issues, they cannot tolerate a situation where there are more issues than are grounds of appeal. Counsel is hereby reminded that the proliferation of issues for determination does not make for a good brief and should be discouraged. See Agu Vs. Ikewibe (1991) 3 N.W.L.R. (Pt. 180) 385, Grankon Vs. Ugochukwu Chemical Industries Ltd (1993) 6 N.W.L.R. (Pt. 295) 55, Chevron Nig Ltd Vs. Onwugbelu & Ors (1996) 3 N.W.L.R. (Pt. 437) 404. See also Tobi: The brief system in Nigerian Courts. Page 72.
As it is now, I want to treat the two Cross-appeals as one. Two issues stand out for the determination of the Cross appeal as can be gleaned from the briefs filed. These are:-
- “Whether the absence of letter “L” in the first name of the Appellant/Cross/Respondent is a mere misnomer or a serious error capable of materially affecting the substance or merit of the Petition” (As formulated by the Appellant/Cross Respondent).
- Whether the Appellant/Cross Respondent filed his petition within 30 days from the date of the result of the election was declared as envisaged by section 141 of the Electoral Act 2006. (As formulated by both parties).
The Learned Counsel for the Cross Appellant submitted on the first issue that the name Alhaji Rabilu Ishaq used in commencing the petition is not the same as Alhaji Rabiu Ishaq. That the name used in commnencing the petition must be the same as the names on the documents the petitioner is relying upon to ground his contention that he was nominated and cleared by INEC to contest the Election. Furthermore, that the two names are confusing and urged the Court to so hold relying on the cases of Fagbola Vs. Titilayo Plastics Industries Ltd (2005) 2 N.W.L.R. (Pt. 909) I and Esenowo Vs. Ukpong (1999) 6 N.W.L.R. (Pt. 608) 611.
Finally on this issue, Learned Counsel submitted that the cases of Ogboru Vs. Ibori (2004) 7 N.W.L.R. (Pt. 871) 192 and Ajadi Vs. Ajibola (2004) 16 N.W.L.R. (Pt. 898) 91 relied upon by the Tribunal to hold that the difference in name was a misnomer do not apply. He urged this Court to so hold.
On the other hand, the Learned Counsel for the Cross Respondent submitted that the absence of letter “L” in the first name of the Appellant/ Cross Respondent is a mere misnoiner that cannot in any manner whatsoever materially affect the substance or merits of the petition. He cited the case of Ajadi Ajibola (Supra) Njoku Vs. U.A.C. Foods (1999) 12 N.W.L.R. (Pt. 623) 557. He urged this Court to so hold.
The substance of this issue is that although the Appellant/Cross Respondent wrote his name correctly in all his papers to INEC and in this petition as Alhaji Rabilu Ishaq, it was INEC which rendered the name of the Appellant/Cross Respondent as Alhaji Rabiu Ishaq; thus removing the letter “L” from the first name of the Cross Respondent. Is the misspelling of the first name of the Cross Respondent a mere misnomer or has it gone to the root of the petition? The Learned Judges of the Lower Tribunal held that it was a misnomer and so refused to strike out the petition on this ground though it did on another ground.
A misnomer is said to be a mistake in name and it occurs when there is a mistake as to the name of a person who sued or was sued, or when an action is instituted by or against the wrong name of a person. In other words, the correct person is taken to Court under a wrong name or incorrect name is given to a person in a Court. Usually, where there is an error only as to the correct name of a party to a suit, an amendment may be sought to correct the mistake and the Court should be disposed to granting such an application. As in this case where there is a mistake in the spelling of the name of a party to the suit especially as such mistake is not occasioned by the maker of the document or even if the mistake is made by the maker, the law allows some room for human error and the Court should be obliged to allow an amendment in the circumstance. See Njoku Vs. UAC Foods (1999) 12 N.W.L.R. (Pt. 632) 557, Nkwocha Vs. Federal University of Technology (1996) 1 N.W.L.R. (Pt. 422) 112, Ajadi Vs. Ajibola (2004) 16 N.W.L.R. (Pt. 898) 91.
Where however the mistake in the name of the parties results in confusion and leads to a miscarriage of justice, I do not think it will be proper to allow such an amendment. See Fagbola Vs. Titilayo Plastic Industries Ltd. (2001) 2 N.W.L.R. (Pt. 909) 1 and Esenowo Vs. Ukpong (1999) 6 N.W.L.R. (Pt. 608) 611.
In the instant case, the absence of the letter’ L’ in the first name of the Cross Respondent has not misled anybody and is such that can be corrected with a proper application. I note that an application to correct the name of the Cross-Respondent was still pending before the Tribunal when this other motion which struck out the petition was still pending. Moreso, the Notice of appeal and the petition which are the originating processes bear the correct names of the parties. I pitch my tent with the Lower Tribunal as I agree with their Lordships that the absence of letter’ L’ in the first name of the Cross Respondent is a mere misnomer which does not affect the identity of the appellant/Cross Respondent. This issue is accordingly resolved against the Cross appellant.
On the last issue, the Learned Counsel for the Cross appellant contended that since election result was announced on 22nd April, 2007 wherein the Cross Respondent was declared the winner of the said election and since the Cross Respondent filed his petition at the Tribunal on 22nd May, 2007, the petition was filed one day outside the 30 days allowed under Section 141 of the Electoral Act, 2006. That from 22nd April, 2007 – 22nd May, 2007 is 31 days which is far from the 30 days statutory period allowed for filling of a petition. He placed reliance on the cases of Lamido Vs. Turaki (1999) 4 N.W.L.R. (Pt. 600) 578, Bilbis Vs. Tsafe (1999) 4 N.W.L.R. (Pt. 597) 24 and Dallah Malah Vs. Suleiman Kachalla (1999) 3 N.W.L.R. (Pt. 594) 309.
Furthermore, that although this issue has suffered two different interpretations by various divisions of this Court, he urged this Court to prefer the decisions which commences the date of filing petition on the date the result was announced. He cited the cases of Alataha Vs. Asin (1999) 5 N.W.L.R. (Pt. 601) 1 and Danjuma Vs. Ogbebor (2003) 15 N.W.L.R. (Pt. 843) 403 in support of commencement from the date of the incident and the cases of Iyirhiaro Vs. Usoh (2004) 1 N.W.L.R. (Pt. 343) 403 and PDP Vs. Haruna (2004) 14 N.W.L.R. (Pt. 900) 597 which supports commencement from the day after the incident. Finally, Learned Counsel referred to the recent case of Barrister Muhammed Umara Kumalla Vs. Senator Ali Modu Sheriff & 3 Ors (unreported) Appeal No. CA/J/EP/GOV/244/2007 delivered on 21st January, 2008 and urged this Court to hold that the Lower Tribunal was wrong to hold that time starts to run on the next day after the declaration of election result.
Learned Counsel for the Cross Respondent as would be expected however submits that the computation of time commences a day after the declaration of result and cited the case of Yusuf Vs. Obansanjo (2003) 16 N.W.L.R. (Pt. 847) 554 at 608 – 609 paragraphs G – C, 629 – 630 paragraphs F – B. Also that in Akeredolu Vs. Akinremi (1985) 2 N.W.L.R. (Pt. 10) 787, the Supreme Court held that by Section 15 (2) (a) of the interpretation Act, the principle of exclusion of the day of the happening of the event has become a principle of general acceptance. He also cited the relied on the case of PDP Vs. Haruna (2004) 16 N.W.L.R. (Pt. 900) 597 and urged the Court to hold that computation of time should exclude the date of the happening of the event.
Section 141 of the Electoral Act 2006 provides
“An election petition under this Act shall be presented within thirty (30) days from the date the result of the Election is declared.”
I need to emphasise that the cardinal principle of interpretation of statute is that where in their ordinary meaning, the provisions of an Act or enactment are clear and unambiguous, effect must be given to them without resorting to any aid internal or external. See Attorney General of Ondo State Vs. Attorney General Ekiti State (2001) 17 N.W.L.R. (Pt.743) 706. I have read Section 141 of the Electoral Act, 2006 and I hold the view that the wordings of that Section are clear and unambiguous. It follows therefore, that its ordinary, literal and natural meaning must be given to the words. See Barrister Mohammed Umara Kumalla Vs. Senator Ali Modu Sheriff & 3 Ors (Supra) at page 13. Also, where the provisions of a statute are clear, plain and unambiguous, the Courts should not resort to any aid or cannon of interpretation. See Elebanjo Vs. Dawodu (2006) 15 N.W.L.R. (Pt. 1001) 76, Obi Vs. INEC (2007) 11 N.W.L.R. (Pt. 1046) 565. The Learned Counsel for the Cross Respondent had urged this Court to call in aid the Interpretation Act in this matter. But it appears to me, and I so hold that since Section 141 of the Electoral Act is so clear, plain and unambiguous, its ordinary, literal and natural meaning must be given to it without recourse to the aid of the Interpretation Act. This was the view of the Supreme Court in Attorney General of Ondo State Vs. Attorney General Ekiti State (2001) 17 N.W.L.R. (Pt. 743) 706 where Kutigi J.S.C. (as he then was) states:-
“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 then1 without resorting to any aid internal or external. It is the duty of the Court to interpret the words of lawmakers as used.”
In this circumstance therefore, I shall abide by the legal position as enunciated above.
Election results were declared on 22nd April, 2007 wherein the Cross Appellant was declared winner in the election. The Cross Respondent filed his petition on 22nd May, 2007 challenging the return of the Cross Appellant. From 22nd April, 2007 when the results were declared to 22nd May, 2007 when the petition was filed is 31 days interval. That is to say one day outside the 30 days prescribed by Section 141 of the Electoral Act, 2006.
Two sets of cases decided by this Court were cited by the parties to this appeal each supporting its position. It is trite that where two decisions of the Court of Appeal are in conflict, the Court must choose between them. See Kumalia Vs. Sheriff (Supra) at page 19. As I see it, the cases of Agbebor Vs. Danjuma (Supra) and Alataha Vs. Asim (Supra) relied upon by the Cross Appellant appear to accord with the clear and plain words of section 141 of the Electoral Act 2006. That is to say that tme begins to run “from the date the result of the election is declared” and not on the following day as postulated in the case of Ivirmaro Vs. Usoh (Supra) and P.D.P Vs. Haruna (Supra). I agree with the decision in Alataha Vs. Asin (Supra) where Salami J.C.A. held on page 44 as follows:-
“The time therefore began to run in this case on 7th December, 1998 when Exhibit I or RI was issued declaring the first respondent “as being the winner of the election” The time to sue was up on 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.”
I cannot agree more. The case of Yusufu Vs. Obasanjo (Supra) cited and relied upon by the Cross Respondents appears not to be of moment here. Yusufu’s case had to do with amendment of petition within the 30 days allowed by paragraph 14(2) of the 15th schedule to the Electoral Act 2002 vis-a-vis order XII Rule I of the Federal High Court (Civil Procedure Rules) 1976 (as amended). It does not have to do with the clear and unambiguous provision of Section 141 of the Electoral Act 2006.
It is on this note that I hold that the Lower Tribunal was in error for refusing to strike out this petition on the ground that the petition was not filed within time though it did on another. This issue is resolved in favor of the Cross appellant. But of course, this is of no significance since the petition had already been struck out on another ground.
In sum, the Cross appeal hereby succeeds in part. I shall make no order as to costs with regards to the Cross appeal.
Other Citations: (2008)LCN/2894(CA)
