Igbekele Bolodeoku V. Ibunkun Olayemi Kalasuwe & Ors (2009)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

Elections were held for seats into the Ondo State House of Assembly on 14th April, 2007. For the Ese-Odo Constituency, Mr Ibukun Olayemi Kalasuwe (1st Respondent herein) was the candidate of the Labour Party (LP) while Mr. Igbekele Bolodeoku (Appellant herein) was the candidate of the Peoples Democratic Party (PDP). At the end of the elections, the INEC (2nd Respondent herein) declared and returned Mr. Igbekele as the person duly elected with majority of lawful votes Mr. Kalasuwe was aggrieved by the return and declaration of the result of the election. He sought to challenge the result of the election in an election petition. Paragraph 12 of this petition sets out the grounds upon which it was brought as follows:-

12(a) The 1st Respondent was not duly elected by a majority of lawful votes cast at the election as no election took place in Ese-Odo Constituency;

(b) The purported election of the 1st Respondent as member to represent Ese-Odo Constituency in Ondo State House of Assembly in the purported election of 14th April, 2007 is invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act.

The various Respondents joined issues with the petitioner denying all the material averments in the petition. After a pre-hearing session the petition went into a full trial during which a number of witnesses on either side gave oral evidence and were cross-examined. Also, a number of documents were tendered and admitted in evidence. The 2nd Respondents’ pleadings were deemed as abandoned because they did not call any evidence. So too, the pleadings of the 5th Respondent. At the conclusion of the oral testimonies, respective learned counsel filed, exchanged and adopted written addresses and thereafter the lower court delivered its judgment on 20th May, 2008.

In its very well considered judgment, the lower court decided and ordered as follows:-

“By the combined effect of oral testimonies and documentary evidence adduced in the considered two issues aforementioned, we deduced that there was no lawful and valid election in Ese-Odo State Constituency on the 14th April, 2007 in accordance with the provisions of the Electoral Act No: 2 of 2006.

Base (sic) on the above, the purported return of the 1st Respondent – Igbekele Bolodeoku as elected member of Ondo State House of Assembly to represent Ese-Odo Constituency in the House of Assembly election held on the 14/4/07 is void and thereby nullified in accordance with the provision of section 147(1) of the Electoral Act 2006.

Consequent upon which the 2nd Respondent – INEC is hereby ordered to conduct a fresh election in the Ese-Odo State Constituency within 60 days from today.” (See page 62 of judgment contained at page 551 of the record of appeal)

The Mr. Bolodeoku was dissatisfied with the decision of the Election Petitions Tribunal (lower court). He appealed the decision on 4 grounds with many copious particulars. In an application dated 1st September, 2008 but filed on 2nd September, 2008, the appellant sought for leave of this court to amend the notice of appeal to enable him to raise a fresh issue not raised at the lower court in the appeal before this court. This application also sought for other kindred and related reliefs to this main relief. The application was considered and granted on 26/02/09. The fresh issue sought to be raised on appeal is contained in one of the additional grounds of appeal. It is as follows:-

“The learned members of the Tribunal erred in law in exercising jurisdiction over the petition of the 1st Respondent, when the said petition was filed outside the statutory period provided for by section 141 of the Electoral Act, 2006.”

Based on the latest grounds of appeal, respective learned counsel filed and exchanged briefs of arguments. The appellant’s brief of argument dated 09-01-2009 was deemed properly filed and served on 26-02-09. The brief of the 1st Respondent dated and filed on 11/3/09 was deemed properly filed and served on 22/04/09. The brief of the 2nd – 4th Respondents was also deemed properly filed and served on 22/04/09. The 5th Respondent filed a preliminary objection and a brief in support of same pursuant to Order 10 Rule 1 of the rules of this court. At the hearing of the appeal on 18th May, 2009, respective learned counsel adopted and relied on their respective briefs.

The first issue formulated and argued by learned counsel to the Appellant, Mr. Adedipe SAN is:-

“Whether the petition which was filed on the 14th of May, 2007, was within time as prescribed by section 141 of the Electoral Act, 2006, to entitle the Tribunal to exercise jurisdiction over its hearing and determination.”

This issue was argued by learned counsel Mr. Adedipe SAN in paragraphs 3.01 to 3.08 at pages 5 to 7 of his brief of argument.

Learned counsel to the 1st Respondent formulated his issued NO.1 as follows:-

“Whether the lower Tribunal was not right in hearing and determining the petition in this case.”

This issue was argued in paragraphs 4.01 to 4.16 at pages 3 to 10 of the 1st Respondent’s brief of argument. The 2nd to 4th Respondents adopted all the issues formulated by the appellant. These Respondents argued the issue of jurisdiction in paragraphs 5.01 to 5.03 at page 6 of their brief of argument.

The 5th Respondent argued this issue of jurisdiction, principally by way of a preliminary objection to the competence of this appeal.

It is axiomatic that jurisdiction is the lifeblood of adjudication before any court of law. It is also taken as a threshold issue that must be decided and determined as soon as it is validly and properly raised at any stage of the proceedings and even on appeal. It is important to underscore this point because where a court lacks jurisdiction, no matter how well the trial was conducted, it would amount to a nullity and an exercise in futility, if there was defect in jurisdiction. See JOHN EBHODAGHE V. CHIEF OMOKHAFE (2004) 12 SCNJ 175. The above principles stated above are the general position of the law as regards jurisdiction.

In view of the importance attached by the courts to the issue of jurisdiction, I will take issue NO.1 formulated by the Appellant and the Respondents first. The traditional practice of the courts is to endeavour to take the earliest opportunity to resolve the issue of jurisdiction timeously. Often times, the disposal of this issue one way or another determines whether an action will fail or succeed. If the issue of jurisdiction appears to be in favour of the full adjudication of the matter, I would then proceed further to take, consider and decide the other issues in this appeal. If, on the other hand, the lower Tribunal had no jurisdiction to entertain and determine the instant petition, then this court will have no jurisdiction to go into the appeal proper, and the other issues argued therein. See ALH. BARI BUDO NUHU V. ALH. ISOLA ARE OGELE (2003) 12 SCNJ 158.

In opening his arguments, Mr. Adedipe SAN tried to outline the factual basis involved in this issue. According to learned counsel, the petition was ex facie filed on the 14th May, 2007 at the Registry of the lower court. Learned counsel further said that on the 14/4/2007, elections were held to fill the vacant seats in the Ondo State House of Assembly and the result for the election into the Ese-Odo Constituency was declared on the same date, i.e. 14th April, 2007.

Upon this background Mr. Adedipe SAN submitted that the declaration of result and the return of the appellant as the winner of the election, a cause of action have accrued to whosoever was dissatisfied with that result and declaration. Further to this submission, learned counsel set out the provisions of section 141 of the Electoral Act, 2006 (hereinafter simply referred to as section 141) and argued that the provisions are simple and clear enough and opined that if any election petition was filed outside 30 days, it will be out of time and statue-barred. Having set this as the parameter to determine this issue, learned counsel sought to answer the question:-

“Whether from 14th April, 2007, when the election result was declared, and 14th May, 2007, when the petition was filed, the 30 days prescribed has been exceeded or not?

In attempting to answer this very crucial question, learned counsel Mr. Adedipe SAN referred to a number of decisions of this court such as;

– OGBEBOR V. DANJUMA (2003) 15 NWLR (PT.843) 403,

– KUMALIA V. SHERRIF (UNREPORTED) CA/J/EP/244/2007,

– ACTION CONGRESS & ANOR. V. JONAH JANG & 9 ORS. (Unreported) CA/J/EP/GOV/275/2007; and

– GEORGE AKUME V. SIMON LIM (Unreported) CA/J/EP/SN/107/2008.

With reference to these cases the learned SAN submitted that in calculating the number of days, the date of declaration of the result must be included because it was the date the cause of action accrued to the 1st Respondent. In this connection, he maintained that by the 14th May,2007, when the petitioner filed the petition, same was already late by a day and urged this court to so hold based on all the already existing decisions of this court from its various Divisions. Upon this submission and prayer, learned counsel urged this court further to allow this appeal, strike out the petition and set aside the decision of the lower court on it.

In closing his arguments, learned counsel added that where an Election Petition was found to be incompetent, the only option left open to the Tribunal or, in this case, the Court of Appeal, was to strike it out. He relied on DICKSON V. BALAT (2004) ALL FWLR (PT.215) 289 AT 306C.

Learned counsel also maintained that the fact that the petition proceeded to judgment on the merit is of no moment as no amount of waiver and acquiescence can confer validity on an incompetent process or can confer jurisdiction on a court of law where none exists. He relied on NWANCHO V. ELEM (2004) ALL FWLR (PT.225) 93 AT 110A AND EGHOBAMIEN V. FMBN (2002) 17 NWLR (PT.797) 488 AT 500 – 501 H-A.

In his response, learned counsel to the 1st Respondent began by submitting that the petition herein was filed within time contrary to all the postulations of learned counsel to the Appellant. He also pointed out that the arguments of Mr. Adedipe SAN did not take into account the relevant statutory provisions on computation of time. He referred to and reproduced the provisions of section 15(2) (a) of the Interpretation Act and Order 23 Rule 1(a) and (b) of the Federal High Court (Civil Procedure) Rules 2000.

Having this as his fulcrum, learned counsel to the 1st Respondent explained that it is note worthy that in the cases of YUSUFU V. OBASANJO (2003) 16 NWLR (PT.847) 554 AT 608 – 609, 629 – 630 AND ADEFEMI V. ABEGUNDE (2004) ALL FWLR (PT.203) 2109 AQT 2123-2124 it had been judicially held that the provisions of the Interpretation Act and the Federal High Court Rules apply to computation of time in election petition cases such that the day of the occurrence of the action has to be excluded from reckoning in the computation of time for purposes of limitation of time stipulations in statutes.

Further to this argument learned counsel urged this court not to follow the decision in OGBEBOR V. DANJUMA (Supra) as the facts and circumstances of this case do not warrant such a course of action. He then referred to paragraph 49 (2) of Schedule one to the Electoral Act and argued, though without conceding, that even if the petition was filed one day out of time, the appellant having taken part in the entire proceedings leading to judgment, had waived their right to complain about want of jurisdiction on the part of the lower court. He urged this court to so hold and decide.

With reference to a number of decided cases of the Supreme Court, learned counsel to the 1st Respondent typified the position of learned counsel to the Appellant as promoting and elevating technicality over substantial justice. He referred to the case of EGOLUM V. OBASANJO (1999) 7 NWLR (PT.611) 355 where it was held that the heydays of technicalities were now over because courts of law now seek to do substantial justice without any resort to and undue reliance on technicalities. He then urged the court not to follow any decisions of this court that seek to exclude the provisions of the Interpretation Act, Federal High Court Rules 2000 and other relevant statutes in the interpretation of section 141. He urged the court to find in favour of the jurisdiction of the lower court.

All the arguments of respective learned counsel to the various sets of Respondents headed towards the direction of those made by learned counsel Mr. Adedipe SAN. If I later find anyone important and relevant, I would refer to it in the course of this judgment. Otherwise, all those those are merely a repetition I would not refer to.

For the purpose of clarity and avoidance of any doubts, section 141 provides:-

“An election petition under this Act shall be presented within 30 days from the date the result of the election is declared.”

There is no doubt at all that this provision is a limitation of time stipulation. It allows for 30 days within which to file an election petition. With respect to every situation where limitation of time is involved the bottom line is when time begins to run and does it end. It is always very important to put these questions under proper focus and correct perspective.

Over the years, the courts have grappled with this issue in a number of its variant forms. The journey had not always been an easy or smooth one. It is trite that time begins to run for purposes of limitation of time when a cause of action accrues to an aggrieved person. It may also be considered as trite that the cut off period is reckoned from the date the cause of action accrued to the end of the number of days, months, or years provided under the relevant limitation of time statute – as the benchmark. See AINA V. JINADU.

It is therefore necessary, for the purpose of determining the limitation period in any given case to consider the facts and circumstances of each case. This is because certain features of particular cases present unique settings that would require a unique approach. It is generally understood that the provisions of the Interpretation Act do not necessarily apply in all cases of construction of all statutes passed by the National Assembly or all other enactments. Its application may be subject to some limitations. One of such limitations is in – built within certain statutes that make provisions for interpretation of certain key words or expressions in an interpretation section within. Another limitation may be set down by case law as decided by the courts over the years with respect to certain words or expressions. This limitation can be discerned in the various decisions of the courts to the effect that clear, explicit and unambiguous provisions of statutes must be given their natural, plain, literal and grammatical meanings without any resort to any internal or external aids for their construction or interpretation. See for example the decisions of the Supreme in BAKARE V. N. K. C. (2007) 17 NWLR (PT.I064) 606 AT 621 AND A. G. EKITI STATE Vs. A. G. ONDO STATE (2001) 17 NWLR (PT.743) 706.

Against this background and in the course of time, this court has taken a settled position that the words used in section 141 of the Electoral Act, 2006 are devoid of any esoteric or arcane connotation. They have been held in number decisions to be clear and unambiguous. This court has also decided that in the con in which each of the operative words of the section are used there is no need to resort to any other external aids in their interpretation and construction. This is now the operative and extant guideline in the interpretation and application of the section.

Here, I am referring to the decisions of this court in:

– SHERRIF V. KUMALIA,

– OGBEBODR V. DANJUMA,

– AKUME V. LIM

– ACTION CONGRESS & ANOR. V. JANG, UMARU & ANOR. V. ALIYU AND PATRICK IKHARIALE V. OKOH etc, etc.

The combined effect of all these decisions and numerous other ones based on them is that all election petitions must be filed within 30 days from the date of the declaration of the result of that election. And in the circumstance, 30 days mean 30 days only and no more at all. The curious part of some of these decisions is that they are taken to mean that 30 days must include the last day even if it fell on a Sunday or any public holiday. See IKHARIALE V. OKOH.

It is too late to cry when the head is cut off and no need to cry over spilt milk. It has been thoroughly admitted by respective learned counsel on each side to this appeal that the election concerned in this appeal was held on 14th April, 2007 and the result was declared on the same date. There is no argument that the petition was ex-facie filed on 14th May 2007. The period between 14th April, 2007 to 14th May, 2007, with both dates inclusive, will amount to 31 days. It would therefore not admit of any argument that the petition in this appeal was filed outside the period envisaged and contemplated by section 141. It is therefore out of time and being out of time it remains statute-barred and incompetent and not capable of being adjudicated upon by the lower court.

My deepest sympathies go to the 1st Respondent. As the petitioner at the lower court he mounted a very gallant and spirited prosecution of his petition. It was vigorous. He made out his case with vigor and determination.

The prosecution of the petition was robust and passionate. He was rewarded with a very favourable judgment. He was victorious at that level. It has now turned out to be a pyrrhic victory. The entire trial was a nullity and an exercise in futility.

Inspite of all my sentiments, it is not possible for me to indulge them in favour of the 1st Respondent because the law has to be upheld as it is and not as any body thinks it ought to be. The law is against the victory of the 1st Respondent and so it must be.

This appeal succeeds and it is hereby allowed. The decision of the lower court setting aside and nullifying the election and return of the appellant as the winner must also now be set aside for having been made without jurisdiction. The petition (No.EPT/OND/SH/15/07) before the lower court was incompetent because it was statute-barred and it is hereby struck out.

The issue of jurisdiction having now been decided in favour of the appellant, there is no meaningful use to go into the other issues in this appeal.

I would not venture to do so. I make no order for cost.

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Other Citations: (2009)LCN/3405(CA)