Hon. Terseer Tsumba & Anor. V. Kwangha Osbert Ityomyima & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
UZO NDUKWE-ANYANWU, J.C.A.
On 14th April, 2007 elections were held throughout Nigeria into the various States Houses of Assembly. In Benue State, the Petitioner Kwaghga Osbert Ityomyima sponsored by the Action Congress (AC) contested against the 1st Respondent Terseer Tsumba sponsored by Peoples Democratic Party (PDP) for the Buruku State – Constituency seat. At the end of the election the 1st Respondent Terseer Tsumba was returned as the candidate duly elected.
The Petitioner being dissatisfied with the return of the 1st Respondent filed his petition on the 14th of May, 2007 against the 1st Appellant Terseer Tsumba, Peoples Democratic Party (PDP) as 2nd Respondents and against the 3rd – 211th Respondents who are officers of Independent National Electoral Commission (INEC).
In the petition the Petitioners stated that there were three candidates who contested the Buruku State Constituency Seat. The Petitioner came 2nd scoring 7,966 votes, the 1st Appellant scored 19,774 whilst the 3rd scored 3,447 votes.
The grounds of the Petitioners petition are:
(i) “That the 1st Respondent was not duly elected by a majority of lawful votes cast at the said election, which result was announced on 14th April, 2007.
(ii) That the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2006, as amended.
(iii) That the election was invalid having been marred by violence throughout Buruku State Constituency by armed thugs recruited by the 1st and 2nd Respondents, armed military personnel and armed policemen deployed on election duty on the day of election.”
At the end of the trial the Tribunal held that the Petitioners proved only grounds 1 and 2 of the petition but- failed to prove ground 3 and it was therefore dismissed. The Tribunal also nullified the election into the Buruku State Constituency of Benue State and ordered the 3rd Respondent Independent National Electoral Commission (INEC) to conduct fresh elections within 60 days. The 1st Respondent in the petition herein after called the Appellant being dissatisfied with the decision of the Tribunal filed a notice and one ground of appeal challenging the decision of the Tribunal. By leave of Court the Appellants filed eight (8) additional grounds of appeal. The Appellants also filed their joint brief of argument on 25th February, 2008 and was deemed properly filed and served on 2nd April, 2008. The 1st and 2nd Respondents also filed their joint brief of argument on the 3rd March, 2008 and was deemed properly filed and served on 2nd April, 2008. The 3rd to 211th Respondents filed their joint brief of argument and was deemed properly filed and served on the 6th May, 2008.
The Appellants formulated four (4) issues from their nine grounds of appeal for determination. They are set out hereunder:
(1) “Whether the Tribunal has jurisdiction to entertain the, petition? Relates to Ground 9, of the notice and Grounds of Appeal.
(2) Whether the Petitioners proved the allegations in the petition to entitle them to judgment? – relates to Grounds 2, 6, and 7 of the Notice of Appeal.
(3) Whether the Tribunal was right to nullify the election of the Appellant on grounds of non-compliance with the Electoral Act? – relates to Grounds 3, 4, and 8 of the Notice of Appeal.
(4) Whether there was any admissible evidence to justify the judgment of the Tribunal? – relates to grounds 1, 2, 5, 7 and 10 of the Notice of Appeal.”.
The 1st and. 2nd Respondents formulated two issues for determination namely thus:-
(1) “Whether or not, the Lower Tribunal rightfully nullified the election of the 1st Appellant owing to the evidence adduced before the Tribunal in the Petition.
(2) Whether or not, the Petition of the Petitioners (1st – 2nd Respondents) was/is statute barred.”
The 3rd – 211th Respondents also formulated four issues for determination, which are as follows:-
(1) “Whether the learned trial Tribunal had the right to have entertained Petition No. BE/EPT/HA/04/07, having been filed thirty-one days after the date of declaration of the election result?
(2) Whether the learned Trial Tribunal was right to have nullified the said Election on grounds of non-compliance with the provision of Electoral Act?
(3) Whether the Petitioners proved the allegations in the Petition to have entitled them judgment?
(4) Whether there was any admissible evidence to have justified the learned Trial Tribunal’s judgment?”
The issue that readily jumps out from the issues formulated by the three sets of parties is:
“whether the Tribunal had jurisdiction to entertain the petition of the Petitioners having filed on the 14th May,2007.”
Jurisdiction is a fundamental issue and must be treated first before considering any other issue formulated by the parties
This issue was formulated from ground nine (9) and it is couched thus: –
PARTICULARS OF ERROR
(a) “The results of the election was declared on the 14th April, 2007.
(b) The Petitioners averred in paragraphs 4 and 5 of the Petition, that the results of the election was declared or announced on the 14th April, 2007.
(c) The Petition was filed on the 14th May, 2007, which is the 31st day from the date the results of the election was declared.
(d) The time for filing the petition lapsed, on the 13th May, 2007.”
The learned Appellant’s counsel Dodo SAN submitted that the election into the Buruku State Constituency was held on the 14th April, 2007. The result that returned the 1st Appellant was declared on the 14th April, 2007. The Petitioners filed their petition on the 14th May, 2007. He referred the Court to Section 141 of the Electoral Act 2006 which provides as follows:
“An Election Petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”
Learned SAN submitted further that having shown that the results were declared on 14th April, 2007 and the petition filed on the 14th May, 2007 it therefore means that the petition was filed out of time. The thirty (30) days having run out on the 13th May, 2007. The petition filed on 14th May, 2007 was indeed filed on the 31st day. He then referred the Court to Ogbebor Vs. Danjuma (2003) 15 NWLR Pt. 843 pg 403 at 426 – 427, Alataha Vs. Asin (1999) 5 NWLR (Pt. 601) pg 32 at 44.
Counsel urged the Court to hold in following the decisions of the above two cases that the petition was brought outside the prescribed time of thirty (30) days. Failure to file the petition within the period of thirty (30) days prescribed by the statute robs the Court of jurisdiction’ to entertain same. Issues of jurisdiction can be raised at anytime during the proceedings even on appeal as in this case. See Attorney-General Lagos State Vs. Dosumu (1989) 3 NWLR (Pt. 11) pg 552 at 556. Yusuf Vs. Obasanjo (2004) 120 LRNC Pg 45 96 at 4602. Learned SAN urged the Court to hold that the Lower Tribunal lacked the jurisdiction to entertain this petition having been filed outside the thirty (30) days prescribed by the statute.
The learned counsel to the 1st and 2nd Respondent Wayo Esquire submitted inter alia that the results of the election was declared on 14th April, 2007 however that the summary of the result sheet Exhibit PW17D was dated 15th April, 2007 which marked the end of all the facts which are material to be proved by the Petitioner to succeed. He referred the Court to the case of Fadere Vs. Attorney-General Oyo State (1982) 4 SC where the Supreme Court held that –
“Time therefore begins to run when there is in existence a person who can sue and another who can be sued and all the facts have happened which are materials to be proved to entitle the Plaintiff to succeed.”
Learned Counsel also submitted that the collation and final summary of the results were done on the 15th April, 2007 per Exhibit PW17D and therefore 15th April, 2007 was the day the final event took place and that was the day the time began to run against the Petitioner.
Counsel submitted further that in determining whether an action is statute barred it was important to determine when time started to run.
Learned counsel submitted that the Electoral Act 2006 has no provision for computation of time but that Section 151 provides that the Rules of procedure to be adopted is that of the Federal High Court. Order 23 Rule 1 of the Federal High Court Rules provides as follows: –
(a) “the limited time does not include the day of the happening of the event, but commences at the beginning of the day next following that day;
(b) the act or proceeding shall be done or taken at latest on the last day of the limited time;
(c) where the time limited is less than five days, public holiday, Saturday or Sunday shall be reckoned as part of the time;
(d) when the time expires on a public holiday Saturday or Sunday the act or proceeding shall be considered as done or taken in due time if it is done or taken ‘on the next day afterwards not being a public holiday Saturday or Sunday.”
It is submitted that in computing time generally, recourse is had to the Interpretation Act. See Peoples Democratic Party vs. Haruna (2004) 16 NWLR pt. 900 Pg 597; Yusuf Vs. Obasanjo (supra).
Learned counsel to the 1st and 2nd Respondents submitted further that the results were declared on 14th April, 2007 but that time-should start running by 16th April, 2007 taking into consideration that 15th April, 2007 was a Sunday. Going by the Federal High Court Rules, time would expire by 15th May 2007.
Counsel also argued that the supposed day by the Appellants argument for time to elapse is 13th April, 2007 which is a Sunday and going by the Federal High Court Rules is a public holiday and therefore 14th May, 2007 is the proper day to file the petition. The Courts are enjoined by Section 73(1)(g) of the Evidence Act to take judicial notice of public holidays. See also Section 15(3) of the Interpretation Act which applies to the filing of the petition, i.e the last day of filing. The learned counsel argued that 13th May, 2007 is a public holiday. The petition filed is deemed properly filed on the next day 14th May,, 2007. See also Order 23 Rule 1(1)(d) Federal High Court (Civil Procedure) Rules 2000.
Finally counsel submitted that the cases of Ogbebor Vs. Danjuma (supra) and Alataha Vs. Asin (supra) are distinguishable from the present case. Counsel urged the Court to hold that the petition was filed within time and not statute barred. Counsel urged the Court to dismiss this appeal and affirm the judgment of the Lower Tribunal.
Miss Mandeun, Legal Officer Independent National Electoral Commission (INEC) counsel to the 3rd to the 211th Respondents argued mostly in the same vein with the Appellant’s learned counsel and submitted that the Tribunal lacked jurisdiction to entertain this petition. In conclusion counsel submitted that the issue of jurisdiction is very fundamental and can be raised at any stage of the proceedings. See the cases of Elabanjo Vs. Dawodu (2006) 27 NSCQR 324 and Kotoye Vs. Saraki (1994)7 NWLR Pt. 357 pg 414 at 466. Counsel urged the Court to allow this appeal and reinstate the Appellant.
The Appellants have raised for the first time an objection to the jurisdiction of the Lower Tribunal to entertain this petition. (See ground 9 of the notice and grounds of appeal).
The issue of jurisdiction is a threshold issue and a lifeline for continuing any proceedings. Therefore objections to the Courts jurisdiction ought to be taken at the earliest opportunity. This is because if there is no jurisdiction the entire proceedings are a nullity no matter how well conducted. See Elabanjo Vs. Dawodu (supra).
A Court is only competent to hear a matter when it comes before it initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of that jurisdiction. Any defect in competence of a Court is fatal and ultimately affects the jurisdiction of the Court to entertain the matter. The existence or absence of jurisdiction goes to the very root of the matter so as to sustain or nullify the Courts decision or order in respect of the relevant Subject matter. See Ogbebor Vs. Danjuma (supra).
The learned Counsel to the 1st and 2nd Respondents sought to apply the Interpretation Act and the Federal High Court (Civil Procedure) Rules 2000 in interpreting Section 141 of the Electoral Act 2006.
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.”
Section 141 Electoral Act 2006 is clear, plain and unambiguous and as such the ordinary, literal and natural meaning must be given plain meaning. See Attorney-General of Ondo State Vs. Attorney-General Ekiti State (2001) 17 NWLR Pt. 743 Pg 706 where Kutigi JSC (as he then was) stated-
“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 then without resorting to any aid internal or external. It is the duty of the Court to interpret the words of Lawmakers as used.”
In the light of the above-authorities and the principles governing interpretations of law I hold that the words used in Section 141 of the Electoral Act 2006 are clear and unambiguous and as such must be given their literal and ordinary meaning without recourse to the Interpretation Act -or to the Federal High Court (Civil Procedure Rules 2000). See the case of Ogbebor Vs. Danjuma (supra).
Section 141 of the Electoral Act 2006 stipulated thirty (30) days within which to present an election petition.
The elections were conducted on 14th April, 2008 into the various States Houses of Assembly and so was Buruku State Constituency of Benue State. After the elections the results were declared on the same date 14th April, 2008.
The question here is when does time start running for the purposes of Section 141 of the Electoral Act 2006.
“Time begins to run when there is in existence, a person who can sue and another who can be sued and all the facts have happened which are material to be proved to entitle the plaintiff (here the petitioner) to succeed.”
It is pertinent to refer to paragraph 4 of the petitioners’ petition which is repeated verbatim for clarity.
“And your petitioners state that the 1st Respondent, Terseer Tsumba, of the Peoples Democratic Party (PDP) was returned as winner of the House of Assembly Buruku State Constituency Election held in Benue State on the 14th April, 2007 by the 3rd Respondent, the Returning Officer at the Buruku State Constituency Election in Benue State on the 14th April, 2007.”
From the above it is manifest and the 1st Respondent also averred in their petition that the Appellant was returned on 14th April, 2007. It is therefore agreed by all the parties that the results were declared on the 14th April, 2007. By the authority of Alataha Vs. Asin (supra) where Salami JCA held:
“The time therefore began to run in this case on the 14th April, 2007 when the Appellant was declared and returned winner.”
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. Odubeko Vs. Fowler (1993) 7 NWLR Pt. 308 pg 637. Jauco Ltd Vs. Owonibovs Tech. Services Ltd (1995) 4 NWLR Pt. 391 page 53. Following Ogbebor Vs. Danjuma- (supra), in the case of Hon. Barr. Mohammed Umaru Kumalia Vs. Senator Ali Modu sheriff – CA/J/EP/GOV/244/07 (unreported), a full court of five justices laid to rest finally when time is supposed to start running in an Election Petition. For avoidance of doubt time starts running on the date a winner is declared and returned.
By virtue of Section 141 Electoral Act 2006 an election petition shall be presented within thirty (30) days from the date the result of the election is declared. This is a condition precedent which foists jurisdiction on the Tribunal.
The thirty (30) days allowed for the presentation of this election petition under Section 141 of the Electoral Act 2006 started running-on 14th April, -2008 when the results were declared and the Appellant was returned as winner of that election.
Limitation legislation sets out limitation periods for different classes of cases. This invariably means that certain classes of action shall not be brought after a period of time from the date the cause of action accrued. The object of Limitation Law relating to election petition is that as much as possible, petitions should be given expeditious adjudication to enable the parties to know the result of the election in which they participated. See Balogun Vs. Odumosu (1999) 2 NWLR Pt. 592 pg 590.
“Compliance with statutory provisions as to time within which to file an election petition is a fundamental pre-condition, a breach of which is incurable and failure to comply with the statutory provisions is fatal and in such a case the court has no jurisdiction to entertain the petition.”
See Ogbebor Vs. Danjuma (supra), Nnonye Vs.Anyichie (1989) 2 NWLR Pt. 101 pg 110.
In the circumstances of this case I hold that time began to run on 14th April, 2007 i.e the day the results of the Buruku State Constituency was declared. It is not in dispute that the results of the election was declared on 14th April, 2007 and that the petition was presented or filed on 14th May, 2007. Thirty (30) days from 14th April, 2007 ended on 13th May, 2007. The petition filed on 14th May, 2007 was therefore filed one day outside the mandatory period stipulated by Section 141 of the Electoral Act 2006. This petition is therefore statute or time barred. See Elabanjo Vs. Dawodu (supra). The Lower Tribunal was robbed of jurisdiction when the petition was presented outside the thirty (30) days envisaged by the statute. The trial and subsequent decision are a nullity.
This appeal is meritorious and is allowed. The judgment of the Lower Tribunal is set aside. The 1st Appellant’s return by the 3rd Respondent is hereby confirmed.
I make no order as to costs.
Other Citations: (2008)LCN/2814(CA)
