Independent National Electoral Commission & Ors. V. Alhaji Abubakar Habuhashidu & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J. C. A.

Governorship election was held throughout the country on 14th April, 2007. The result of the election in Gombe State was declared the following day 15th April, 2007. The 1st Respondent who was sponsored by the 2nd Respondent (PD) was declared and returned winner of the election in Gombe State.

1st Cross-Respondent and his sponsor, the DPP presented an election petition against the declaration and return of the 1st Respondent as the winner of the election. The Petition was filed on 15th May 2007.

One of the issues dealt with by the Tribunal was the competence vel non of the petition. This issue arose from oral evidence before the Tribunal and was predicated on the following two grounds:-

(1) That the petition was not filed within time; and

(2) That the petition failed to state the scores of all contestants at the election.

In its judgment the Tribunal held that the petition was filed within the time stipulated by the Electoral Act 2006. However, it held that the petition was incompetent for its failure to state the scores of all the contestants at the election.

The appellants appealed against the said judgment. On 11/3/2008 the 3rd-16th Respondents sought and were granted, leave by the Court to Cross-appeal against the judgment of the Tribunal. The notice of appeal was deemed filed on 11/3/2008. The lone ground of appeal is hereunder reproduced.

“The Lower Tribunal erred in law when it assumed jurisdiction to hear the Petition which was presented on the 15/5/07 against election result declared on the 15/04/07 and therefore statute barred by excluding 15/04/07 in computing 30 days within which to present election Petition, and by relying on Section 15(a)(i) of the Interpretation Act and Order 23 Rule 1(a) Federal High Court Rules, 2002 and this occasioned a miscarriage of justice.”

In the Cross-appellants’ Brief of argument the issue distilled for determination is

“Whether the petition presented on 15th day of May 2007 against election result declared on the 15th April, 2007 is competent and if the answer is in the negative whether the lower Tribunal had jurisdiction to adjudicate on the Petition.”

In their own brief of argument the Appellant Cross-Respondents framed the following issue for determination:

“Whether the Appellants/Respondents to the cross-appeal’s petition filed on the 15th May 2007 against the election into the Office of Governor of Gombe State declared on the 15th April, 2007 was flied outside the thirty (30) days period for the presentation of the Election Petition as stipulated under Section 141 of the Electoral Act, 2006.”

Learned Counsel for the Cross-Appellants flied a reply to the Cross-Respondents’ Brief of argument. None of the 1st and 2nd Respondents made a brief in the cross appeal.

Arguing the lone issue in his brief the learned Senior Counsel for the Cross-appellants G. Ofodile Okafor Esq., OON, SAN said that proceedings conducted by a Court or Tribunal lacking jurisdiction in the matter are null and void ab initio no matter how well conducted. He referred to DAPIANLONG V. DARIYE (2007) 8 NWLR (PT. 1036) 336 AT 402-403 H-C. He said that issue of Jurisdiction is so fundamental that it can be raised at any stage of the proceedings in the Court of first instance or even for the first time in Appeal Court either by any party to the proceedings or by the Court or Tribunal suo motu and neither the acquiescence by, or active. Support or ignorance of a party can confer jurisdiction on a Court. The learned Silk referred to OKONKWO v. INEC, MAOUKOHI v. NKEMDILIM (1962) SCNLR 341, OBIEKWEV.OBI (2005) 10 NWLR (PT. 932) 60 AT 76 C-E for conditions that must be satisfied before a Court is competent to adjudicate. He relied on paragraph 49(5) of the Schedule to the Electoral Act 2006. He said election Petition matters are sui generic and relying on BALOGUN V. ODUMOSU(1999) 2 NWLR (PT. 592) AT 590 he said election Petition should as far as possible be disposed of expeditiously. Learned Counsel relied on EGBE VS. ADEFARASIN (1987) 1 NWLR (PT. 47) AT 27 in support of his contention, that failure to commence an action within the period stipulated by law renders the action incompetent. Citing Section 141 of the Electoral Act 2006 Counsel contention, that time is of essence in election petition and that an election. Petition presented outside the prescribed 30 days is incompetent and statute barred. Learned Counsel cited OJOKOLOBO v. ALAMU (1987) 3 NWLR (PT. 61) 377, NWANKWO V. ABAZIE (2003) 12 NWLR (PT. 834) 381 AT 409 PARAGRAPHS G-H; 410 PARAGRAPH G, OGBEBOR V.DANJUMA (2003) 15 NWLR (PT. 843) 403 AT 426-427 PARAGRAPHS G-A; ALATAHA V. ASIN (1995) 5 NWLR (PT. 601) 32 in his contention that there is nothing ambiguous about Section 141 of the Electoral Act 2006 to require resort to Section 15(2)(a) of the Interpretation Act and Order 23 Rule 1(a) Federal High Court Civil Procedure Rules 2000. He relied on IBRAHIM V. J.S.C. (1998) 14 NWLR (PT. 584) 1 AT 32 PARAGRAPH B and argued that at the expiration of the 30 days prescribed by Section 14 of the Act the right to present an election petition is extinguished by law. Learned counsel referred to KAMBA V. BAWA (2005) 4 NWLR (PT. 914) 43 AT 78 in which it would appear that the judgment contradicts the earlier decision of the same Court in OGBEBOR V. DANJUMA decided in 2003 and ALATAHA V. ASIN (supra) decided in 2003. He said the attention of the Jos Division of the Court was not drawn to the earlier decision and relying on ADEGOKE MOTORS V. ADESANYA (1988) 9 NWLR (PT. 74) 108 AT 207; THOR LTD. v. FCMB LTD (1997) 1 NWLR (PT. 479) 35 AT 44-A he said the Court is free to choose which of the conflicting decisions to follow. He urged the Court to follow OGBEBOR V. DANJUMA (supra) and ALATAHA v. ASIN (supra) on the need to follow literal interpretation unless where it will lead to absurdity, he relied on UGWU v. ARARUME (2007) 12 NWLR (PT. 1048) 365 AT 519 PARAGRAPHS C-D. Learned Counsel relied on the unreported case of A.C & 2 ORS V. JONAH DAVID JANG & 9 ORS CA/J/EP/GOV/275/2007 in which the Court of Appeal, Jos delivered judgment on 26/2/08. He urged the Court to allow the cross-appeal and strike out the petition for being incompetent and statute barred.

Arguing the lone issue in his brief the learned Senior Counsel for the cross-Respondents M. Y. Saleh (SAN) said that the parties agree that the Governorship Election was held on the 14th day of April 2007 throughout the country and that the result of the election in Gombe State was declared on the 15th day of April, 2007 and that the Cross-Respondents (as Petitioners) filed their Joint Petition on the 15th May 2007. The learned Silk relied on YUSUF v. OBASANJO (2003) 16 NWLR (PT. 847) 544 606 AT 609 – 630 in his contention that in the computation of the period of 30 days within which an election can be presented the date of the declaration of the result is excluded. He referred to decision in ALATAHA v. ASIN (supra) OGBEBOR v. DANJUMA which he said conflict with the decisions of the Supreme Court as well as other decisions of the Court of Appeal on the computation of time stipulated in the Electoral Act. He referred to IYIRHIARO V. USOH (1999) 4 NWLR (PT. 597) 41 wherein the date of declaration of result was excluded. He referred also to PDP v. HARUNA (2004) 16 NWLR (PT. 900) 597 where the Court of Appeal resorted to Section 15(2)( a) of the Interpretation Act Cap 192 Laws of the Federation in the computation of the 30 days stipulated in Section 132 of the Electoral Act 2002 in pari materia with Section 141 of the Electoral Act 2006. He relied on AWUSE v. ODILI (2004) 89 NWLR (PT. 876) 481 AT 505, ADEFEMI V. ABEGUNDE (2004) 15 NWLR (PT. 895) 1, BALEWA V. MUAZU (1999) 5 NWLR (PT. 604) 636 AT 643; GALAUOU V. KAMBA (2004) 15 NWLR (PT. 895) 31 AT 59-60 PARA H-D; AYOGU V. NNAMANI (2004) 15 .NWLR (PT. 895) 143 AT 150-151 PARAGRAPHS H-B. The learned Senior Counsel conceded that YUSUF v. OBASANJO was decided in the contest of the period within which a petition could be amended but argued that the decision is authority for computation of time within which to file election petition because the amendment sought was substantial and paragraph 14(2) of the First Schedule to the Electoral Act 2002 required that such amendment be sought within the period of 30 days limited by Section 132 of the Electoral Act 2002 for filing an election petition. Learned Counsel relied on AZEEZ AKEREDOLU & ORS. V. LASISI AKINREMI (1985) 2 NWLR (PT.10) 787 AT 794 wherein the day of the happening of the event was excluded in the computation of the time limited. He relied on OJO V. ANONGO (2004) ALL FWLR (PT. 218) 934 AT 942-943, EKEKEUGBO V. FIBERESIMA (1994) 3 NWLR (Pt. 335) 702 and STOUDS JUDICIAL DICTIONARY 5TH EDN. VOL. 5 PP 2876-2877 the meaning of the words “within” and “from”. He relied also on “WORD AND PHRASES LEGALLY DEFINED” 3RD EDN. VOL. 4 P. 445 and WILLIAMS V. BURGES (1980) 10 LJQB AT 11. Learned Counsel emphasized that the issue before the Court is the issue of computation of the 30 days from the date of declaration of result under Section 141 of the Electoral Act 2006 and not mere literal interpretation of words per se as canvassed by cross-appellants. On the doctrine of stare decisis learned Counsel relied on among others, OLUTOLA V. UNIVERSITY OF ILORIN (2004) 12 SCNJ 236 AT 264, OKONJO V. ODJE & ORS. (1985) 10 SC 267 AT 268 and DALHATU V. TURAKI (2003) 15 NWLR (PT. 843) 310 and urged the Court to follow the decisions of the Supreme Court.

In conclusion learned Counsel urged the Court to dismiss the cross appeal and to hold that the petition filed on 15/5/07 was filed within the 30 days stipulated in Section 141 of the Electoral Act 2006. He urged the Court to affirm the judgment of the Tribunal.

In his reply brief learned Counsel for the cross-appellants dealt with computation of time and said that the computation must in every case depend on the intention of parliaments as gathered from the words of the statute being interpreted. He argued that where the words used in a statute are clear and unambiguous the Court must accord such words their ordinary, literal and grammatical meaning except where it will result to absurdity in the interpretation of the statute. He relied on UGWU v. ARARUME (supra), LADOJA v. INEC (2007) 12 NWLR (PT.I047) 119 AT 187; OKONKWO v. NGIGE (2007) 12 NWLR (PT. 1047) 191 AT 218.

On the doctrine of stare decisis a decision of a higher Court in the hierarchy of Courts becomes a precedent to be followed by the lower Courts where the principle, law or rules or facts of the case are the same as the case before the lower Court. He relied on F.B.N. PLC v. MAY MEDICAL CLINICS & D.C. LTD (2006)4 NWLR (PT. 971) 442 AT 477; ADEEOUN OLADIJI NIG. LTD v. N.B.C. PLC (2007) 5 NWLR (PT. 1027)415 AT 436, among others. Learned Counsel contended that where there are conflicting decisions of Court of equal jurisdiction the later decision would prevail. Learned Counsel analysed the principles in the case relied on by the Cross-. Respondents and concluded that the cases are not applicable to this appeal as the issues dealt with in the cases are different from the issue in the present case. He urged the Court to allow the Cross-appeal and strike out the petition for being incompetent.

The parties therein do not dispute that:

(1) The Governorship election was held throughout the country on the 14th day of April, 2007.

(2) The result of the Governorship election in Gombe State was declared on the 15th day of April, 2007.

(3) The appellants/Cross-Respondents, as Petitioners, presented their joint election petition on the 15th day of May, 2007.

Section 141 of the Electoral Act 2006 provides

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

This appeal replicates the facts of an earlier case in which the Court delivered judgment on the 26th of February, 2008. This appeal No. CA/J/EP/GOV/275/2007 (unreported). In the said case it was the same Governorship election held throughout the Country 0n 14th April, 2007. The result of the Governorship election in Adamawa State was declared on the 16th day of April 2007 and on the 16th May 2007 the appellants presented an election petition challenging the declared result. The Election Petition Tribunal agrees with the respondents that the Petition was filed out of the 30 days prescribed in Section 141 of the Electoral Act. The appellants’ appeal was dismissed by the Court affirming the decision of the Tribunal. The Court in arriving at its decision followed such earlier cases as ALATAHA v. ASIN (supra) and OGBEBOR v. DANJUMA (supra) and come to the conclusion that in the computation of time limited in provisions of the Electoral Acts in pari materia with Section 141 of the Electoral Act 2006 the date of the declaration of the result is included. See particularly the judgment in Appeal No. CA/J/EP/GOVI244/07 (unreported as of now) delivered in the Court of Appeal Jos on 21/1/08. The facts of this case are on all fours with the facts in this Cross-appeal. It is the same Governorship election conducted nationwide on 14/4/07. The result of the election in Bornu State was declared on 15/4/07 as in the cross-appeal and the Petition as in the cross-appeal was presented on 15/5/07. The trial Tribunal held that the Petition was filed out of the time prescribed by Section 141 of the Electoral Act, 2006 and dismissed it. On appeal the Court per Muhammad, OFR, JCA following among others the lead judgment of Salami, OFR, JCA in ALATAHA v. ASIN (supra) held ” … that time began to run on 15th April, 2007 i.e. the day the result of the Governorship election was declared.” and dismissed the appeal. See page 21 of the judgment.

The Cross-Respondents herein argued that the date of the declaration of the result of the election is excluded in the computation of the time limited for the presentation of an election petition under the Act. They relied on, among others, the decision of the Supreme Court in YUSUF v. OBASANJO (supra) and AZEEZ AKEREDOLU & ORS V. LASISI AKINREMI (supra) and PDP v. HARUNA (supra). These cases are inapplicable herein for two reasons:

(1) The first two cases were not decided by the Supreme Court on Section 141 of the Electoral Act or provisions in pari materia with the said Section 141 of the Act. In YUSUF V. OBASANJO (supra) the apex Court dealt with application for amendment of a pending election petition whereas the issue herein is the commencement of all election petition. In AZEEZ AKEREDOLU v. LASISI AKINREMI was on the computation of time within which to appeal to the Supreme Court pursuant to Section 31(2)(a) of the Supreme Court Act.

(2) In PDP v. HARUNA (supra) and other cases in which the Court of Appeal would appear to have excluded the date of the declaration of result in the computation of time within which to present an election petition the issue of whether or not there is need to resort to the Interpretation Act or the Federal High Court Rules or any aid at all in the computation of time within which to present an election under provisions in pari materia ‘with Section 141 of the Electoral Act was not raised and the Court did not have the opportunity of rendering a decision one way or the other. This is a crucial factor in this appeal unlike the previous decisions relied on by the Cross-Respondents. The application of the Interpretation Act or the Federal High Court Rule would result in the exclusion of the date the result was declared in the computation. The issue was taken up in Appeal No. CA/J/EP/GOV/275/07 (Unreported) decided on 26/2/08 and the Court, relying on A-G ONDO STATE v. A-G EKITI STATE (2001) 10 SCNJ p. 117 AT 146 held that the clear and unambiguous words of Section 141 of the Electoral Act did not warrant a resort to aid in its interpretation. Given their clear, literal and grammatical meaning which they are intended by the legislature to convey the words in Section 141 of the Electoral Act 2006 mean that an election petition must be presented within 30 days from the date the result was declared. Time would commence to run from the date the result was declared and end on the 30th day. It runs from the date of the declaration of the result or part thereof to the 30th day from that date.’ Section 141 of the Electoral Act 2006 is a limitation statute and in its interpretation and application care must be taken that no one is brought within it who is not brought within it by its express language. See MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL V. DR. J. E. N. OKONKWO (2001) 5 NSCQR 650 AT 682-683, RUMBALL V. SCHMIOT (1882) 8 QBD 603 AT 608.

The Court is bound to apply common sense in the construction of statute. See NIGERIAN-ARAB BANK LTD V. COMEX LTD (1999) 6 NWLR (PT. 608) 648. Common sense in the use of the word “from” in terms of place means from any part of the particular location, and in terms of space/time it means from any time in the year, month, week, day or hour mentioned.

The doctrine of stare decisis invoked by the learned Senior Counsel for the Cross-Respondent is not relevant to this appeal. From what has been said above the facts, rule/law, circumstances and issues on the cases relied on by the Cross- Respondents are different from those of the present appeal. See OKEKE v. OKOLI (2000) 1 NWLR (PT. 642) 646. In the same vein decisions are not necessarily in conflict for the mere fact that they are different. It depends on the factual and legal consideration leading to the decisions.

In IYIRHIARO V. USOH (supra) the Court invoked Section 1(2)(a) of the Interpretation Act Cap 192 Laws of the Federation 1990 and excluded the day of the declaration of the result in the computation of time for presentation of an election Petition. The Court arrived at the same decision in DPP v. HARUNA (supra) by ” resorting to Section 15(2)(a)of the Interpretation Act and, Order 23 Rule(1)(b) of the Federal High Court (Civil Procedure) Rules 2000.

On the other hand the Court in ALATAHA v. ASIN (supra) and OGBEBOR v. DANJUMA (supra) relied solely on the literal ordinary and grammatical meaning of the words used in the limitation section of the relevant Electoral Act and started the computation of time from the day the result of the election was declared. The decision in the two set of cases are bound to be different but not necessarily in conflict and as the issue of the Court following one and rejecting the other of its conflicting decisions would not arise.

In view of the above I accept the argument of the learned Silk for the Cross-appellants that the Petition No. EPT/GN/GOV./1/2007 presented on the 15th of May 2007 to challenge the result of the Governorship election declared on the 15th day of April 2007 was presented after the expiration of the 30 day period prescribed in Section 141 of the Electoral Act 2006. It is statute-barred and ipso facto incompetent. The Cross-appeal is allowed and Petition No. EPT/GM/GOV/1/07 is hereby struck out as incompetent. Consequently Appeal No. CA/J/EP/GOV/371/2007 against the judgment in the said incompetent petition is hereby struck out.

Parties shall bear their costs.

Other Citations: (2008)LCN/2797(CA)