Fasakin Kayode Ajayi & Anor. V. Ajibade Sunday Owolabi & Ors (2009)
LawGlobal-Hub Lead Judgment Report
JUMMAI HANNATU SANKEY, J.C.A,
Election into the Ekiti State House of Assembly seat for Ekiti West Constituency II was held on 28th April, 2007. The 1st Appellant was a candidate and he contested on the platform of 2nd Appellant, Action Congress, one of the registered parties in Nigeria. The 1st Respondent was also a candidate at the election and he contested on the platform of the 2nd Respondent, Peoples Democratic Party. At the conclusion of the election, the 3rd Respondent, INEC, declared the 1st Respondent winner having scored the highest votes at the election. The Appellants were dissatisfied with the results as declared and so filed a Petition at the Governorship and Legislative Houses Tribunal for Ekiti State on the 28th May, 2008.
Hearing in the Petition commenced before Panel 1 of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting at Ado-Ekiti. However, while the matter was still part-heard, it was transferred for hearing de-novo before Panel II, still sitting at Ado-Ekiti. After the exchange of pleadings, the 1st and 2nd Respondents filed a Preliminary Objection to the hearing of the Petition wherein they prayed the Tribunal to strike out the Petition on the ground of incompetence premised on the fact that it was presented outside the period of 30 days of the declaration of result as prescribed by Section 141 of the Electoral Act, 2006. After hearing arguments of Counsel on the objection, the Tribunal upheld the objection and, in a considered ruling delivered on the 2nd May, 2008, struck out the Petition on the ground that it was filed one day outside the mandatory period prescribed by Section 141 of the Electoral Act, 2006 and therefore incompetent.
Dissatisfied with this ruling, the Appellants appealed against same vide their Notice of Appeal dated 2nd May, 2008, wherein they complained on six grounds. Arising from these grounds, the Appellants distilled three issues for determination by this Court as follows:
- Whether the Honourable Tribunal was right by his Lordships’ finding that the Interpretation Act was not applicable and/or cannot be applied to interpret Section 141 (sic) Electoral Act 2006 and thereby include the day of declaration of result in the counting of 30 days within which to file (sic) Petition.
- Whether the Honourable Tribunal was not wrong by not following the decision of the Supreme Court in the case of YUSUF VS OBASANJO and , the Federal High Court (Civil Procedure) Rules 2000 while interpreting Section 141 of the electoral Act 2006 when the provision of the Electoral Act 2002 interpreted by the Supreme Court is ipsima verba of the provision of section 141 Electoral Act 2006.
- Whether the Honourable Tribunal was not wrong by His Lordships’ finding that the Petition was filed one day out of time stipulated by section 141 Electoral Act 2006 when the last day falls on Sunday.
The 1st and 2nd Respondents formulated very nearly identical issues thus:
(i) Whether the lower Tribunal was right when it held that the provision of the Interpretation Act, Laws of Nigeria was not applicable to the provisions of Section 141 of the Electoral Act, 2006 in the computation of time for presentation/filing of Election Petition under the Act.
(ii) Whether the Honourable Tribunal was right by not following the decision of the Supreme Court in the case of Yusuf Vs Obasanjo and the Federal High Court (Civil Procedure) Rules 2000 in the computation of time for presentation/filing of Election Petition under the Act. .
(iii) Whether the Petition was properly struck out on the ground of want of jurisdiction by the lower Tribunal.
The 3rd – 75th Respondents, even though duly served through their Counsel, Mrs. Maureen Arinze, neither filed a Respondents’ Brief of Argument nor did they put in a personal appearance or indeed appearance by Counsel in response to the Appeal.
It appears to me that all three issues formulated by each of the parties appearing before the Court are basically the same as they zero in on:
(a) the applicability of the Interpretation Act in the construction of Section 141 of the Electoral Act;
(b) the applicability of the decision in Yusuf V Obasanjo (2003) 10 SCNJ 1 and the Federal High Court (Civil Procedure) Rules to compute time under Section 141 of the Electoral Act; and
(c) the propriety of striking out the Petition by the trial Tribunal.
To my mind, the issues are the same in the way 12 are to a dozen, or 20 to a score, (due apologies to Tobi, JSC in Yusuf V Obasanjo (Supra) at page 11). I shall however take the liberty to juxtapose the issues as follows:
(i) Whether the lower Tribunal was right when it held that the provision of the Interpretation Act, Laws of the Federation of Nigeria was not applicable to the provisions of Section 141 of the Electoral Act, 2006 in the computation of time for presentation/filing of Election Petitions under the Act.
(ii) Whether the Honourable Tribunal was right in not following the decision of the Supreme Court in the case of Yusuf V Obasanjo and thus, the Federal High Court (Civil Procedure) Rules 2000 in the computation of time for the presentation of an Election Petition under the Act.
(iii) Whether the Honourable Tribunal was not wrong by His Lordships’ finding that the Petition was filed one day out of time stipulated by section 141 Act 2006 when the last day fails on Sunday.”
Issue One: Whether the lower Tribunal was right when it held that the provision of the Interpretation Act, Laws of the Federation of Nigeria was not applicable to the provisions of Section 141 of the Electoral Act, 2006 in the computation of time for the presentation/filing of Election Petitions under the Act.
Learned Counsel for the Appellants, Mr. Balogun, highlighted the provisions of Section 141 of the Electoral Act, Sections 1, 5 and 37 of the Interpretation Act, Order 23 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2000 and Paragraph 50 of the First Schedule to the Electoral Act, 2006 to preface his submissions which were made as follows: The election result for the Ekiti West II House of Assembly was declared on 28th April, 2007 while the Petition was filed on the 28th May, 2007. Counsel submits that it is clear from the Interpretation Act that its provisions shall be applied to the provisions of any enactment, the only exception being where the contrary intention is contained in the Interpretation Act itself or the particular enactment to be interpreted by the Interpretation Act. Counsel submits that Section 1 thereof thus makes it mandatory to apply Section 15 of the Act to the Electoral Act, 2006 which qualifies as an enactment or Act of the National Assembly. Counsel thus submits that the Interpretation Act ought to be applied while construing Section 141 of the Electoral Act especially as there is a clear provision of Section 15 of the Interpretation Act which governs the manner of interpreting the words “from” and “where a period is reckoned from a particular event” in any enactment.
Learned Counsel submits that the two limitations or exceptions where the Interpretation Act will not be applied as stated in Section 1 of the Interpretation Act are not applicable to the Electoral Act, 2006 on account of the absence of a clear provision to that effect from the Interpretation Act itself, and the Electoral Act does not contain any express provision that the Interpretation Act will not be applied. Reference is made to the decisions of this Court in Adefemi V Abegunde (2004) 15 NWLR (Pt. 895) 1 at 20 – 21; Iyirhiaro V Usoh (1999) 4 NWLR (Pt. 597) 41; Auto Import V Adebayo (2002) 12 SCN] 124 at 135. Thus, counsel urges the Court to hold that if the day of declaration of result is counted as part of 30 days and the last day will fall on Sunday, then the Petition filed on Monday, 28th May, 2007 was filed within time. He urged the Court to resolve this issue in favour of the Appellants.
The 1st and 2nd Respondents, on the other hand, predictably hold a contrary view. Learned Counsel on their behalf, Mr. Omotoso, submits that the gravamen of their Preliminary Objection at the Tribunal is the provision of Section 141 of the Electoral Act, 2006. He contends that the operative words in this provision are ‘shall be presented within thirty (30) days’. He contends that the words ‘shall’ and ‘within’ are of particular importance. This is because they give particular direction indicating the intendment of the Legislature and the Court is bound to interpret the provisions in such a way as to give effect to the Legislature’s intendment.
Counsel relies on the definition of the word ‘within’ as given in Black’s Law Dictionary with Pronunciation Sixth Edition at page 1602 thereof. He also refers to the judicial interpretation of the word as given in Ekekekgbo V Fiberesima (1994) 3 NWLR (Pt. 335) 707 at 731 to submit that the provision of Section 141 of the Electoral Act, 2006 is to the effect that an Election Petition must be presented any time before the expiration of 30 days or not later than 30 days from the date the result of the election is declared. He submits that this necessarily involves the counting of 30 days inclusive of the date of the event of declaration of the election result.
Further to this learned counsel relies on the decisions in Ogbebor v. Danjuma (2003) 15 NWLR (Pt.843) 403 at 434 – 435; Alataha v. Asin (1999) 5 NWLR (Pt.601) 37 at 44; Kamalia v. Sherif 9unreported) Appeal No. CA/J/EP/GOV/244/2007; and Action Congress v. Jang (unreported) Appeal No. CA/J/EP/GOV/275/2007 Judgment delivered in February, 2008. On the strength of these decisions, learned Counsel submits that an Election Petition arising from the April, 28th 2007 election to the House of Assembly of Ekiti State of Nigeria must be presented any time between 28th April, 2007 and the 27th May, 2007. Thirty days from 28th May, 2007, the date on which the result was declared is inclusive of both dates i.e. 28th April, 2007 and 27th May, 2007.
It is Counsel’s further submission that the clear and unambiguous provision of Section 141 of the Electoral Act as to the time for presentation of Election Petitions has completely obviated any reference to the Interpretation Act. He submits that the Court is bound to give the words used their ordinary meaning. Counsel refers to the very wordings of Section 1 of the Interpretation Act which state as follows:
This Act shall apply to the provisions of any enactment except in so far as contrary intention appears in this Act or the enactment in question.
He argues that the underlined portion shows clearly that the Act is not intended to apply to any enactment with a specific and contrary intention to the interpretation in the Interpretation Act. Counsel therefore urges the Court to resolve issue number one in the affirmative against the Appellants.
The issue of applying the Interpretation Act to interpret Section 141 of the Electoral Act is now such an over-flogged issue in judicial circles that one would have thought that it is allowed to rest in peace given the overwhelming number of decisions of the Courts in this regard. I believe it should no longer be an issue which should unduly agitate us in this Appeal as the authorities on the position of the law are now legion. It really should be evident that the argument that the Interpretation Act and the Federal High Court (Civil Procedure) Rules apply to the interpretation of Section 141 of the Electoral Act is erroneous by reason of the provisos contained in the said Interpretation and Electoral Acts which delimit their applicability respectively. The very logical starting point in this discussion is to consider whether the wordings of Section 141 of the Electoral Act are plain, clear and unambiguous or whether they are obscure, obtuse, vague and ambiguous and therefore needing external aids to interpret them. It is only after this has been determined that it can be decided to refer to the Interpretation Act and/or rules of Court for assistance. This has been the wise counsel of our legal sages through the ages. The very eminent Jurist, Karibi-Whyte, JSC, in the celebrated case of IBWA V Imano (Nig.) Ltd (1988) 7 SCNJ (Pt. II) 326 at 344-345 brilliantly intoned thus:
“It is a fundamental rule for the interpretation of statutes that where the words used are clear and unambiguous, they should be construed as they are and given their plain and ordinary meaning. See Jammal Steel Structures Ltd V ACB Ltd (1973) 1 ALL NLR (Pt 2) 208. It is not in such circumstances permissible to go beyond what the words themselves actually convey and to consider what other things they are capable of and could mean. This is because where the provision is unambiguous and clear they contain the intention of the law maker and no words inferred … are required to discover the intention which have been fully expressed in the words used. This is the literal rule and the golden method of interpretation. ”
I equally belong to the school of thought that holds firmly to the conviction that where the words of a statute are clear and unambiguous, they should be construed as they are and given their plain and ordinary meaning without reference to any external aids. Words should be ascribed their face value, as they are the best indices of the intention of the lawmaker. Where clearly expressed in a statute, words are the mirror through which we must look to discover the intent which has been fully expressed therein. It is only where there is doubt or ambiguity in words, that recourse would be had to other canons of interpretation. See also A.G Ogun State V Aberuagba (1985) 4 SC (Pt. 1) 288 per Eso, JSC.
Section 141 of the Electoral Act expressly provides thus:
“141. An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared”. (Underlining and bolding supplied for emphasis).
From the clear, precise and unambiguous wordings of this provision, I take the view that there is no call for a resort to any other piece of legislation, such as the Interpretation Act and/or the Federal High Court Rules, (as has been rigorously canvassed by learned Counsel for the Appellant), to get at the true intention of the legislator. In my humble view, this provision is sufficiently precise, clear and unambiguous such that it is un-desirous of a further need to apply other rules of interpretation or to embark on any foray or exploration into other statutes or rules of Court, as has been advocated, in order to decipher the intendment of the Legislature in the use of the words “within 30 days from the date the result of the election is declared.” These words, in their ordinary and natural meaning, make the computation of the 30 days limitation for the presentation of Election Petitions to commence running from the date of the election.
This is the consistent position this Court has taken in its recent decisions in a host of cases, some of which are: Ekekegbor V Fiberesima; Ogbebor V Danjuma; Action Congress V Jang (2009) 4 NWLR (Pt. 1132) 475; INEC V Hashidu (2009) 4 NWLR (Pt. 1130) 73; Tsumba V Ityomyima (2009) 9 WRN 200; Agbai V INEC (2009) ALL FWLR (Pt. 449) 594; Adaramola V Aribisala (Unreported) Appeal No. CA/IL/EP/REP/13/2008 Judgment delivered on 19th May, 2009 per Nweze, JCA; Kupolati V Oke (Unreported) Appeal No CA/IL/EP/HA/12/2008 Judgment on 3rd April, 2009 per Agube, JCA; Muraino Ayantola V Action Congress (Unreported) Appeal No. CA/IL/EP/SH/16/200B Judgment delivered on 18th July, 2008 per Nweze, JCA; Prince Kola Bukoye V Action Congress (Unreported) Consolidated Appeals Nos.CA/IL/EP/SA/15A/2008 & CA/IL/EP/SA/15B/2008 Judgment delivered on 18th July, 2008 per Agube, JCA; Kumalia V Sherrif (Unreported) Appeal No. CA/J/EP/GOV/244/2007.
My noble lord, Nweze, JCA, in his very comprehensive exposition of the law in the very recent decision of this Court in Adaramola V Aribisala (Supra), succinctly adduced at least five reasons why Section 141 is self-sufficient in determining the question of computation of time. They are:
- By Paragraph 50 of the Electoral Act, the invocation of the Federal High Court rules is made subject to the express provisions of the Act itself. Thus it is the provision of the Act on limitation that will be taken into account.
- The provision of Section 141 of the Electoral Act is clear and unambiguous, therefore exterminating the need of any external or interpretative aids. See AG Ondo State V AG Ekiti State (2001) 10 SCNJ 117.
- Whereas the provision of the Federal High Court (Civil Procedure) Rules is a general provision on time limitation, Section 141 is a specific provision on the time for presenting an election petition. Therefore, the Latin maxim generalibus specialia derogant, (special provisions derogate from general provisions), applies to obviate the need for recourse to the said rules. See Kraus Thompson Organisation V NIPPS (2004) 17 NWLR (Pt. 901) 44 at 65 & Schroder V Major (1989) 2 SCNJ 210.
- The provisions of the rules are inconsistent with the requirement of the Electoral Act. For, whereas the rule “excludes the day or the date of the happening of the event”, Section 141 stipulates that an election petition “shall be presented within thirty 30 days from the date the result of the election is declared.” In the face of this inconsistency, the applicable enactment should be the provisions of the Act. See Yusuf V Obasanjo (2003) 50 WRN1 at 20 per Tobi, JSC.
- Order XII Rule 1 of the Federal High Court rules is a contingent prescription whose relevance in the computation of time for filing election petitions must be viewed from the prism of the dynamics that dictated the elevation of election petitions to sui generis proceedings. In other words, as Acholonu, JCA (as he then was), noted in Balogun V Odumosu (1999) 2 NWLR (Pt. 592) 590 at 597, the provision was meant to do away with delay and waste of time, and endeavours to restrict the time meant for the doing of a particular act within a time-frame.
The operative words in Section 141 of the Electoral Act are no doubt “within” and “from”, “Within” is a preposition used as a function word to indicate an enclosure or circumstance in the limits of; not outside the limits of something; or not go beyond the limitation of time. See Webster’s Ninth Collegiate Dictionary, 1991 Edition and Chambers 21st Century Dictionary Revised Edition. Black’s Law Dictionary with Pronunciation 6th Edition defines “within” when used relative to time as “before the expiration of”, “not beyond”, “not exceeding” and “not later than”, “From” on the other hand is a function word to indicate a starting point as: a starting point in measuring or reckoning or in a statement of limits. By their simple grammatical meanings therefore, these words connote and convey the meaning that the thirty days prescribed for the presentation of an Election Petition begins to count from the date of the declaration of the results. Thus, a prospective petitioner can only present his Petition during the continuance of the thirty days commencing from the date the election results were declared.
For added measure, I am of the firm view that it is very significant that the lawmaker in this highly controversial provision makes use of the word “date” as opposed to “day”, The use of the word “date”, (as opposed to “day”, which is used in Section 23(1)(b) of the Federal High Court (Civil Procedure) Rules) is, to my mind deliberate, calculated, intentional and hence, revealing. The word “date” ties down the happening of the event to a very specific/time with exactitude and does not give any latitude or room for maneuvering. Chambers 21st Century Dictionary (Revised Edition) defines the two words thus:
”Date – the day of the month and/or the year, recorded by a number or series of numbers; a statement on a letter, document , etc giving usually the day, the month and the year when it was written, sent, etc.”
”Day – the period of 24 hours called the solar day during which the earth rotates once on its axis with respect to the Sun; any period of 24 hours, especially from midnight to midnight; the period from sunrise to sunset; the period of time in any 24 hours normally spent doing something, especially working.”
Going by these definitions in computing time, it is evident that whereas in the Federal High Court (Civil Procedure) Rules where the word “day” is used, it is the intention of the lawmaker that the following period of 24 hours should be included and taken into account, in the Electoral Act, the express use of the word “date” fixes the time to commence from the actual date on which the result was declared. Any other interpretation would simply do violence to the provision of the law and the intention of the lawmaker. This is another classic situation where the maxim generalia specialibus non derogant – meaning general things do not derogate from special and specialia generalibus derogant – meaning special things derogate from the general one, applies.
Learned Counsel for the Appellants has contended that from the wordings of the Interpretation Act, there is nothing contained in the Electoral Act which would suggest the intention to exclude the applicability of the Interpretation Act either expressly or by necessary implication. He further submits that the provisions of the Interpretation Act applies to all enactments of the National Assembly, and will be called in aid in the construction of any provision of the Electoral Act, 2006 and even the Constitution of Nigeria. He therefore concludes that it was palpably wrong for the lower Tribunal to hold that the provisions of the Interpretation Act would not apply in the construction of the Electoral Act. With due deference to learned Counsel, it is evident that the express wordings of Section 1 of the Interpretation Act was not factored in this submission. Section 1 provides inter alia:
“1. This Act shall apply to the provisions of every enactment except in so far as the contrary intention appears in this Act or the enactment in question. “(Underlining mine).
Section 15 (2) (a) thereof also provides:
“A reference in an enactment to a period of days shall be construed where the period is reckoned from a particular event as excluding the day on which the event occurs.”
The word “except” in Section 1 has been defined to mean “with the exclusion or exception of”. Therefore by the exclusion clause contained in this provision, it is clear beyond per adventure that the Interpretation Act is inapplicable to all Acts of the National Assembly which express or demonstrate intentions contrary to the Act.
From the express and deliberate deployment of language in Section 141 of the Electoral Act, (such as “within thirty (30) days from the date the result of the election is declared”), to the prohibition of indefinite adjournments- Paragraph 25 (1) of the First schedule to the Act, to the emphasis on the expeditious disposal of matters before the Tribunals which permits hearing to be continued on Sunday or Public Holidays – Paragraph 25(2), to the mandatory accelerated hearing of all Petitions and Appeals arising there from, it should be apparent to all but the unperceptive that the intention of the Legislature is to elevate election matters into special or sui generis proceedings. It is therefore not in the class of enactments to which the Interpretation Act will apply, a contrary intention of the Legislature having been so clearly demonstrated.
From all the foregoing, I am of the firm view that the provisions of the Interpretation Act, particularly, Section 15(2) thereof is at variance with the Electoral Act. From the provisions of Sections 141, 148 and Paragraphs 23 – 25 of the Electoral Act, it is obvious that a contrary intention appears in the Electoral Act and thus there is no call for the application of the Interpretation Act to the Electoral Act, 2006. Consequently, whereas the Interpretation Act is of general application to the interpretation of enactments of the National Assembly, Section 141 of the Electoral Act is a specific and special provision governing the time for the presentation of an election petition. Following on the heels of all the above, I am obliged to come to the firm and unwavering conclusion that, in the face of Section 141 of the Electoral Act, 2006, the Interpretation Act cannot be invoked in the interpretation of the said provision of the Electoral Act. I therefore respectfully but resolutely decline the invitation to disturb the findings of the lower Tribunal on this issue.Issue number one is thus resolved in favour of the Respondents.
Issue Two: Whether the Honourable Tribunal was right in not following the decision of the Supreme Court in the case of Yusuf V Obasanjo (2003) 10 SCNJ 1 and the Federal High Court (Civil Procedure) Rules, 2000 in the computation of time for the presentation of an Election Petition under the Act.
Learned Counsel for the Appellants submits under this issue that the provision of Section 141 of the Electoral Act cannot be construed in isolation. Instead, recourse must be had to the Federal High Court (Civil Procedure) Rules, 2000 which is made applicable pursuant to Paragraph 50 of the First Schedule to the Electoral Act itself. Counsel submits that it is trite that a Schedule to the Act or enactment form part of the Act and any construction or interpretation of the Act must take cognizance of the provision of the Schedule thereto. He submits that Order 23 Rule 1 of the Federal High Court Rules on the computation of time is in pari materia with the provision of Section 15 of the Interpretation Act. Therefore, even assuming that the Interpretation Act is not applicable to interpret Section 141 of the Electoral Act, Order 23 of the Rules ought to be applied since the manner of interpretation of the word ‘From’ and when time is limited for doing a certain thing is not expressly contained in the Statute itself. For that reason, Counsel argues that recourse must be had to the Rules. For credence to the foregoing submissions, Counsel relied on Atikpekpe V Joe (1999) 6 NWLR (Pt. 607) 428. Learned Counsel submits that this decision makes it abundantly clear that, even without the Interpretation Act, the counting of 30 days within which to file a Petition as provided under Section 141 of the Electoral Act will start to run from the next day after the declaration of the result. Counsel then applied the principles of law enunciated in the cases cited to the facts of this Appeal and submits that the computation of days will start to run from 29th April, 2007 since the result of the election was declared on 28th April, 2007 by Form EC8E(1), which is the Declaration of Result Form, Exhibit AA before the Tribunal.
Learned Counsel describes the decision of Yusuf V Obasanjo (2003) 16 NWLR (Pt. 847) 554; (2003) 10 SCNJ 1 as the last straw that broke the camel’s back and laid to rest the issue of the proper interpretation of Section 132 of the Electoral Act, 2002 in pari materia with Section 141 of the Electoral Act, 2006. Counsel submits that the issue for determination before the Apex Court was whether having regard to the provisions of Paragraphs 14(1) & 14(2) of the First Schedule to the Electoral Act, 2002 and Section 132 of the Act, an amendment or substantial amendment to the Petition could be effected by the Petitioners in the case. Counsel submits that the Supreme Court interpreted the two sections and, in particular, dealt with the computation of time within which to present an Election Petition or to file a motion to effect substantial amendment to the Petition after the expiration of 30 days prescribed within which to file the Petition. The Court, Counsel submits, applied the provisions of the Federal High Court (Civil procedure) Rules, 2000 made applicable by virtue of Paragraph 50 of the First Schedule to the Electoral Act, 2002 in computing the 30 days within which to present or file an Election Petition. Counsel referred to the observation of Tobi, JSC who read the lead Judgment at pages 605-606 of the report to submit that it is mandatory for the Tribunal to apply the Federal High Court (Civil Procedure) Rules while interpreting any part of the provisions of the Electoral Act, especially where such a provision is not contained in the Act. Counsel contends that the learned Justice made it clear beyond per adventure that the Court interpreted Paragraph 14 and Section 132 of the Electoral Act, 2002 in that case, which section is ipsima verba with Section 141 of the Electoral Act, 2006 and which is the crux of this Appeal. Counsel referred to the mathematical calculation of time at page 607 of the report and submits that in the calculation of the 30 days from 22nd April, 2003 when the result of the election was declared, Tobi, JSC excluded the 22nd April, 2003 in line with the provisions of the Federal High Court Rules.
In like vein, learned Counsel refers to the concurring Judgments of Kutigi, JSC, (now ON), at page 622-623, Katsina-Alu, JSC at page 627, Uwaifo, JSC at page 629 & 631 and Edozie, JSC at page 636 of the report. He therefore submits that, contrary to the findings of the Tribunal that the day of the declaration of the result would not be counted, the Supreme Court did exclude the day of the declaration of the result in computing the 30 days stipulated by Section 132 of the Electoral Act, 2002. Counsel therefore urges the Court to follow the interpretation of Section 132 given by the Supreme Court which is ipsima verba of section 141 and hold that the day of declaration of result will not be reckoned in computation of 30 days within which to file the Petition. He further relied on the decision of this Court in PDP V Haruna (2004) 16 NWLR (Pt. 900) 597.
Conversely, Counsel submits that the decisions in Ogbebor V Danjuma (2003) 15 NWLR (Pt. 843) 403; Kumalia V Sherrif (Supra) and Action Congress V Jang (Supra) relied upon by the Tribunal cannot override the decision of the Supreme Court in Yusuf V Obasanjo (Supra). He contends that the Court can validly depart from these decisions having regard to the decision in Yusuf V Obasanjo (Supra). Instead of relying on the latter two decisions, Counsel urges the Court to follow its decisions in Iyirhiaro V Usoh (Supra), Adefemi V Abegunde (supra); Atikpekpe V Joe (Supra) and PDP V Haruna (Supra), where this Court applied the provisions of the Interpretation Act and the Federal High Court (Civil Procedure) Rules in holding that the day of the declaration of result will be excluded in the computation of time to file a Petition. Learned Counsel urges the Court not to be persuaded by the reasoning that the crux of the matter in Yusuf V Obasanjo (Supra) was the amendment of the Petition because the view cannot be totally correct as Paragraph 14 of the First Schedule on amendment makes reference to Section 132 of the Electoral Act which deals with time to file a Petition, and so, the computation of time was very much in issue.
On his own part, learned Counsel for the 1st and 2nd Respondents, Omotoso Esq., submits under this issue that Paragraph 50 of the First Schedule to the Electoral Act is the enabling power by which recourse can be made to any other enactment where the Electoral Act does not expressly provide for a situation. Counsel argues that by the opening sentence of the Paragraph which is:
“subject to the express provisions of the Act…”
that is to say, where the Act expressly provides for a situation, no recourse shall be made to any other law or rule except where the Act has not expressly provided for such situation. He submits that the term “subject to” when used in a statute means liable, subordinate, subservient, or inferior to, governed or affected by, provided that or provided, answerable for. He submits that the term introduces a condition, a restriction, a limitation, a proviso. It generally implies that what is subject to shall govern, control and prevail over what follows in that subject section of the enactment so that it renders thee provision to which it is subject conditional upon compliance with or adherence to what is prescribed in the provisions to which it is subject and conditional upon compliance with or adherence to what is prescribed in the provision referred to. For this, he relies on Ebhota V P.I. & P.O. Co. Ltd (2005) 15 NWLR (Pt. 948) 266 at 283; & FRN V Osahon (2006) 5 NWLR (pt. 973) 361 at 429-430.
Counsel submits that in the present case, Paragraph 50 of the First Schedule to the Act makes the Federal High Court (Civil Procedure) rules applicable but subject to the express provisions of the Electoral Act. This indicates that where there is a provision on a point in the Act, inclusive of its Schedules and Practice Directions made there under, the Federal High Court Rules will give way.
Counsel further submits that time is of essence for all the steps to be taken in any Election Petition which as a matter of law is sui generis. Therefore, the computation of time in Election Petitions is done, not as in ordinary civil matters, but as prescribed by the relevant statute, which in this case is the Electoral Act, 2006. He argues that Section 141 is clear and gives room for no other interpretation but that an Election Petition under it must be presented within, (that is, before the expiration of), 30 days from the date of the declaration of the result. Counsel submits that to exclude the date the result is declared will definitely take the number of days outside 30 days from that declaration and will be contrary to the ordinary meaning of the statutory provision of section 141 of the Act. He submits that words in a statute must be given their plain and ordinary meaning. Ondo State V AG Ekiti State (2001) 17 NWLR (Pt. 743) 706 at 763; & Alataha V Asin (1999) 5 NWLR (Pt. 601) 32 at 44 are relied upon.
Finally, learned Counsel submits that the facts in the case of Yusuf V Obasanjo (Supra) are not the same as the facts of this case. In the latter case, the issue concerned the time within which an amendment can be made to a Petition, whereas in this case, the issue is as to time within which this Petition was presented. He submits therefore, that for a case to serve as a precedent under the doctrine of stare decisis, the facts or legal principles must be similar. Counsel urges the Court to resolve this issue in favour of the 1st and 2nd Respondents.
This issue addresses in the main the applicability of the Federal High Court (Civil Procedure) Rules in construing Section 141 of the Electoral Act, following the decision in Yusuf V Obasanjo (Supra). The Appellant, have argued that by virtue of Paragraph 50 of the First Schedule to the Electoral Act, the rules of practice and procedure the Federal High Court Civil Procedure Rules, 2000 have been incorporated into the Act. He contends that the case of Yusuf V Obasanjo (Supra) at pages 608 – 609 decided that the rules of the Federal High Court are applicable in all matters including the computation of time in Election Petition matters. While agreeing that the case of Yusuf V Obasanjo (Supra) considered and decided the 30 days prescribed for the amendment of a Petition, Counsel argues that since the question in issue revolves around the computation of time, recourse ought to be made to Order 23 Rule 1(a) & (d) of the Federal High Court (Civil procedure) Rules, 2000 in computing time by the lower Tribunal.
It needs to be said that this Division of the Court has, on several occasions in recent times, been called upon to address this same issue in a number of Appeals that came up before it. The latest being Kupolati V Oke (Unreported) Appeal No. CA/IL/EP/HA/12/2008 Judgment delivered on 3rd April, 2009, and Daramola V Aribisala (Unreported) Appeal No. CA/IL/EP/REP/13/2008 Judgment delivered on 19th May, 2009. Before these, this Court has in a string of decisions similarly pronounced on the applicability of the decision in Yusuf v Obasanjo to a matter involving the computation of time for the presentation of a Petition. See Action Congress V Jang (2009) ALL FWLR (Pt. 467) 156. This issue having thus come before us yet again must be addressed for the umpteenth time. The approach I have chosen firstly is to simply examine and determine the ratio decidendi of the case and then to go on to see if same can be applied mutatis mutandis to the facts of this Appeal. In determining this, the claim before the Apex Court and the issue which it was called upon to decide will be the key factors.
Before then, it may be well to remind ourselves that in isolating the ratio decidendi in any particular case, opinions in the Judgment which are not part of the material facts to the determination of the case, do not constitute the ratio decidendi and are therefore not binding. It is the principle of law upon which a particular case is decided that is binding. That principle is what is called the ratio decidendi. See NAB Ltd V B. Eng. (Nig.) Ltd (1995) 8 NWLR (Pt.413). Equally, opinions in the Judgment which are not part of the material facts, even where relevant to the determination of the case, do not constitute part of the ratio decidendi and are not binding. See Savannah Bank (Supra). Achike, JSC in Abacha V Fawehinmi (2000) ALL NLR 351 when determining what constitutes the judgment of the Court made this position of the law all too clear when he stated thus:
“Where a single Judge presides, the situation does not admit of any difficulty; the Judgment of that Court is what may be discerned as the ratio decidendi or rationes decidendi of that case in contrast to the passing remarks, otherwise referred to as obiter dictum or obiter dicta made by the court in the course of preparing the judgment. ”
His lordship went on:
“The problem… arises when three Justices… or five Justices… preside over a case or an appeal wherein one of the Justices is assigned to write the leading Judgment and others, under the mandatory provision of the Constitution, are obliged to render either their concurring or dissenting judgments. In such a situation, it is the leading judgment that is, in legal circles, regarded as the judgment of the court.
The point of jurisprudential interest and of considerable interest in this appeal is the relationship of the bindingness of the ratio decidendi or rationes decidendi contained in the leading judgment on the one hand, and the other concurring judgments, on the other hand. Are they at par or are some superior to others?
The jurisprudence and practice of law in this country appears to be tolerably clear: it is the ratio or the rationes contained in the leading judgment that constitutes or constitute the authority for which the case stands. All other expressions contained in the concurring judgments, particularly those not addressed in the leading judgment are obiter dictum or dicta. ”
See also Daramola V Aribisala (Supra) per Nweze, JCA.
Whereas the Panel of eminent Jurists that heard the Appeal in Yusuf V Obasanjo (2003) 10 SCNJ 1 was made up of Belgore, JSC (as he then was), Kutigi, JSC (now CJN), Katsina-Alu, JSC, Uwaifo, JSC, Tobi, JSC, Edozie, JSC and Pats-Acholonu, JSC (of blessed memory), the lead Judgment was written by the eminent emeritus Justice of the Supreme Court, Tobi, JSC. After reviewing all the issues formulated by learned Counsel for resolution by the Court, this was my noble lord’s observation at page 11 of the report:
”It appears to me that all the issues formulated by the parties are basically the same as they zero on the amendments sought by the Appellants and the subsequent decision of the Tribunal.”
He continued very pointedly thus at page 19 of the report:
“The cynosure of this appeal is paragraph 14 of the First Schedule to the Electoral Act, 2002. It is the first line. It is also the bottom line. The appeal clearly zeros on the construction this Court will place on it. In view of the centrality and importance of the paragraph, I reproduce the provisions for ease of reference.”
My learned lord went on to set out in extensor the provisions of Paragraphs 14 (1) & (2) of the First Schedule to the Electoral Act, 2002, which is in pari materia with its counterpart Paragraph 14 in the Electoral Act, 2006. It therefore brooks of no argument that the heart of the matter before the Supreme for consideration in that Appeal was the limitation of time for the amendment of Election Petitions. Therefore, following NAB Ltd V B. Eng. (Nig.) Ltd (supra), the ratio decidendi must necessarily be deciphered from a resolution of this sole issue. As Karibi-Whyte, JSC elucidated in Savannah Bank of Nigeria Ltd V P.A.S.T.A. Ltd (1987) 1 SC 198 at 278 – 279 thus:
In determining the ratio decidendi of a case, it is safer to consider the claim before the court and the issue which the court was called upon to decide. Thus the reasons given by the court for deciding the claim before it is the ratio decidendi which the court is obliged to follow in subsequent cases and will not lightly depart from unless to avoid the perpetuation of errors… Accordingly, opinions in the judgment which are not part of the material facts even where relevant to the determination of the case do not constitute part of the ratio decidendi and are not binding(Underling for emphasis).
Admittedly, in the concurring judgments of Uwaifo, JSC and Edozie, JSC, references were made to the computation of time in respect to Section 132 of the Electoral Act, 2002 which is in pari materia with Section 141 of the Electoral Act, 2006. Nevertheless, this was still in relation to the main issue before the Court for the limitation of time for amendment. (See pages 42-43 & 47-48 of the report). It must therefore be read in that con and not taken in isolation. Whatever the case, by the authority of Savannah Bank Ltd V P.A.S.T.A. Ltd (Supra) above cited, opinions expressed which are not part of the issues for determination or the material facts before the Court do not constitute the ratio decidendi and are not binding. At best, they are obiter dicta.
It is therefore beyond question that the issue dealt with by the Apex Court concerned the amendment of an extant Election Petition, whereas the case at hand centers on the computation of time within which an Election Petition can be presented under Section 142 of the Electoral Act, 2006. Counsel for the Appellant has strenuously advocated that the lower Tribunal was wrong in failing to apply the decision of the Court in Yusuf V Obasanjo willy nilly to the petition. However, the doctrine of stare decisis applies only if the facts, circumstances and issues decided in the earlier case are the same or similar to those of the later case wherein it is sought to apply the doctrine. See Action Congress V Jang (Supra); Okeke V Okoli (2000) 1 NWLR (Pt. 642) 641; Nwangwu V Ukachukwu (2000) 6 NWLR (Pt. 662) 674. As afore-stated, the case of Yusuf V Obasanjo (Supra) is a decision based on the application to amend a Petition already filed. The Appellants herein have not demonstrated how a decision anchored on the provision relating to the filing of amendments in respect of a Petition already presented to the Tribunal could justifiably be applied to a case relating to the provision limiting time for the presentation of a Petition under Section 141 of the Act. Like this Court said in Action Congress V Jang (Supra) at page 510 of the report, this would have amounted to nothing but:
‘:.. an unwarranted extension of the authority of Yusuf V Obasanjo (Supra) beyond its legitimate borders to apply al decision based on the filing of amended process to a determination of the time for presentation of an originating process in this case the election petition.”
Therefore, all things considered, I do not hesitate to find that the trial Tribunal cannot be faulted in its decision not to follow the decision of the Supreme Court on the filing of an amendment to the determination of whether or not an Election Petition was filed out of the time stipulated by Section 141 of the Electoral Act, 2006. This issue is also resolved against the Appellants.
Issue Three: Whether the Honourable Tribunal was not wrong by His Lordships’ finding that the Petition was filed one day out of time stipulated by section 141 Electoral Act 2006 when the last day falls on Sunday.”
Learned Counsel for the Appellants submits that this is an alternative issue in the event that issues one and two do not succeed. Counsel submits that the kernel of this issue is that, assuming that the 28th April, 2007, which is the day of the declaration of result of the election, is counted as part of the 30 days within which to file or present the Petition, the last day will fall on Sunday, which is regarded as non dies under Section 15(5) of the Interpretation Act. Counsel submits that Order 23 Rule 1(d) of the Federal High Court (Civil Procedure) Rules, 2000, deal with the lacuna in the Electoral Act in this regard. Thus, Counsel urges the Court to hold that if the day of declaration of result is counted as part of the 30 days prescribed and the last day will fall on a Sunday, then the Petition filed on Monday, the 28th May, 2007, was filed within time. He thus urged the Court to resolve this issue in favour of the Appellants.
In the course of the hearing of this Appeal on 25th February, 2009, this Court, suo motu, raised the issue of the applicability of Section 6 of the Public Holidays Act Cap P40 Laws of the Federation of Nigeria, 2004. It therefore granted Counsel time to address the issue which was framed thus:
Whether in view of Section 6 of the Public Holidays Act (Supra) it is proper to discount Sunday as a working day for the purpose of filing a Petition.
Hence, in his further address on this issue, learned Counsel for the Appellants submits that Saturdays and Sundays are non-working days otherwise referred to as non dies. That Section 6 of the Public Holidays Act does not automatically declare Sunday a working day. Instead, there must be a directive from the President of the Court of Appeal to that effect. He argues that nothing in the Election Tribunal and Court Practice Directions issued by the President suggests that Sunday is a working day for the Secretary and other members of staff of the lower Tribunal to enable the filing of Petitions on that day. He urged the Court to take judicial notice of Section 15(5) of the Interpretation Act in considering Sunday as a public holiday.
Counsel for the 1st and 2nd Respondents on the other hand, submits that under Section 1 of the Public Holidays Act which stipulates the days mentioned therein to be public holidays, Sunday is not listed as a public holiday. He thus contends that Sunday is not a public holiday under the Act and urged the Court to so hold.
Furthermore, Counsel relied on the decision in Agbai V INEC (2009) All FWLR (Pt. 449) 594 at 605-606 to submit that the Interpretation Act is not intended to apply to any enactment with a specific and contrary intention to the interpretations in the Interpretation Act. He therefore concludes that Sunday cannot be excluded in the computation of the 30 days for the filing of Election Petitions as stipulated by Section 141 of the Electoral Act in view of its nature as special proceedings for which time is of the essence.
This Division of the Court has previously pronounced on this issue and no fresh argument has been advanced to persuade me to depart from our findings in that regard. This is in the case of Abimbola Daramola V Wale Aribisala (Unreported) Appeal No. CA/IL/EP/REP/13/2008 Judgment delivered on 19th May, 2009. I will therefore simply endeavour to re-hash what we said in that case since the facts and the issues in contention are virtually identical.
Section 1 and the Schedule of the Public Holidays Act specifically itemizes ten such days to be observed as public holidays. They are:
(i) New Year’s Day;
(ii) Good Friday;
(iii) Easter Monday;
(iv) Workers’ Day (1st May);
(v) Democracy Day (29th May);
(vi) National Day (1st October);
(vii) Christmas Day;
(viii) Such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of Id el Fitr;
(ix) Such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of Id el Kabir; and
(x) Such day as the Minister may declare to be a public holiday in celebration of the birthday of the Prophet Muhammed (Id el Maulud).
By Section 2 (3) of the Act, these days are work-free days.
With due respect learned Appellants’ Counsel, his reliance on Section 6 of the Public Holidays Act to submit that Saturdays, Sundays or Public holidays are non dies is fallacious. Instead, what the Section expressly provides for is that if it is in the interest of the public service or if the convenience of the public demands it, public servants and public officers can even work on Saturdays, Sundays and Public Holidays. For the avoidance of doubt, the provision is set out hereunder:
“Provisions as to Government Departments working on Saturday, Sundays and Public Holidays.
(1) Notwithstanding any of the foregoing provisions of the Act, the Permanent Secretary of a Ministry or the head of any Government Department may, unless otherwise ordered by the appropriate authority, in the interest of the public service or the convenience of the public demand it, require all or any of the persons serving in his Ministry or Department, as the case may be, to perform on a Saturday, Sunday or public holiday such of their duties as he may deem necessary.
(2)……..
(3) In this section, references to Department include references to any court or tribunal set up pursuant to any enactment or any other public institution the emolument or any of whose employees are paid out of the consolidated Revenue Fund of the Federation or of a State or any other public fund of the Federation or of a State.”
Furthermore, the law is since settled that Election Petitions are sui generis and removed from the nature of ordinary civil proceedings. As a matter of deliberate policy to enhance urgency, election Petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute. See Orubu V NEC (1988) 5 NWLR (Pt. 94) 323. Pats-Acholonu, JCA (as he then was) (of blessed memory) skillfully captured and emphasized the essentiality of time in the case of Balogun V Odumosu (1999) 2 NWLR (Pt. 592) 590 at 597 thus:
“The issue of time to complete filing of all processes relating to hearing and determination of an election petition was uppermost in the mind of the legislators. The enactment stretches itself further a field to do away with tardinesss and waste of time and endeavoured to constrict the time of doing a particular act within a time frame-work. In other words, it is the intention of the legislators that parties stick strictly to the times stated in the Decree. The Court could not aid anyone who decides to sleep only to wake up when it is too late. ”
In its obvious desire to sate public interest in this nature of proceedings, the Legislature, in Paragraph 25(2) of the First Schedule to the Electoral Act even went so far as to provide that hearing of Petitions may be:
“…continued on a Sunday or on a public holiday if the circumstances dictate.”
Consequently, it is unnecessary for further directives to be issued by the President of this Court where the business of the Court dictates that it is expedient to work even on those days.
With regard to Section 15(5) of the Interpretation Act which provides that holiday means Sunday or a public holiday, in faithful adherence to the Latin maxim generalibus specialia derogant, (special Provisions derogate from general provisions), the Public Holidays Act which specifically deals with the subject of Public Holidays must be preferred in the circumstance. See Schroder V Major (1989) 2 SCNJ 210.
It is therefore for these reasons that I come to the conclusion that by virtue of Section 6 of the Public Holidays Act, Sunday is not a public holiday. Thus, it is bound to be reckoned with in the computation of time for the presentation of a Petition under Section 141 of the Electoral Act, 2006. With this, I resolve this issue in favour of the Respondents.
On the whole, in view of all my findings above, I find no merit in this Appeal. It deserves to fail. Consequently, I hereby enter an order dismissing same. Parties are ordered to bear their costs.
Appeal dismissed.
Other Citations: (2009)LCN/3269(CA)
