Mohammed Baba Ibaku & Ors. V. Umar San Ebini & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA J.C.A.
This is one of the consolidated appeals against the Judgment of the Governorship and Legislative Houses Election Petition Tribunal sitting at Lafia in the Nasarawa State of Nigeria delivered on the 9th day of September 2008.
Briefly the facts of the case are that on 14th day of April 2007 the 4th Respondent conducted election in Udege/Loko Nasarawa West Constituency in respect of the House of Assembly in Nasarawa State of Nigeria. At the end of the election Patrick O. Ebinny of the Peoples Democratic Party was declared elected by the 4th Respondent. Dissatisfied with the declaration, the 1st and 2nd Respondents brought a petition challenging the result declared by the 4th Respondent, in that the said Patrick Oshagu Ebinny presented a forged certificate to the Independent National Electoral Commission and therefore not qualified to have contested the election.
At the Conclusion of hearing, the Election Petition Tribunal for Nasarawa State sitting in Lafia found that the said Patrick Oshagu Ebinny presented a forged certificate to the 4th Respondent and therefore was not qualified to contest the election. The election was nullified and fresh election was ordered.
In compliance with the Judgment of the Tribunal the 4th Respondent conducted another election on the 15th day of March 2008 for the Udege/Loko Nasarawa West Constituency in the Nasarawa State of Nigeria. At the conclusion of polls, the 1st Appellant who was not a candidate in the April 14th 2007 election was returned as winner by the 4th Respondent. Dissatisfied with the return of 1st Appellant, the 1st and 2nd Respondents brought another Petition before the second Election Petition Tribunal sitting in Lafia, Nasarawa State.
It was contended on behalf of the 1st and 2nd Respondents among others that the 1st Appellant not being a contestant in the nullified House of Assembly election of 14th April 2004 could not validly participate in the re-run election ordered by the Tribunal.
The Tribunal at the conclusion of hearing upheld the contention of the 1st and 2nd Respondents and declared the 1st Respondent as the validly elected.
The Appellants dissatisfied with the said Judgment now appealed to this Court.
The Learned Senior Counsel for the Appellants formulated eight issues for determination in the amended Appellant’s brief of argument as follows:-
(1) Whether having regard to the combined effect of Section 141 of the Electoral Act 2006 (as Amended) as well as the Provisions of paragraph 4(3)(b) of the First Schedule to the Electoral Act, Petition No.EPT/NS/001/2008 filed on 14th April 2008, thirty one 31 days after the declaration of result was not statute barred and patently defective, invalid and a nullity for want of proper endorsement/signature hence the trial Tribunal lacked the Jurisdiction to entertain it. (Grounds 14, 15, 16, 17 and 18).
(2) Whether the Trial Tribunal was not funtus officio in making adverse findings and/or declarations against the 1st Appellant in favour of the 1st Respondent after exhausting its Judgment in respect of Petition No.EPT/NS/001/08 and indeed lacked the Jurisdiction to grant reliefs not sought. (Grounds 13 and 19).
(3) Whether having regard to the Provisions of Section 141 of the Electoral Act 2006, (as Amended) as well as paragraph 14(21(a) (ii) and (iii) of the First Schedule to the Electoral Act, the Tribunal was right in granting the application for amendment of an invalid Petition to wit, Petition No.EPT/NS/001/08 on 29th July 2008 (Ground 21).
(4) Whether the Trial Tribunal was right in its interpretation and application of Section 42(1) of the Electoral Act by declaring the 1st Respondent as the only validly nominated candidate who contested the election of 15th March 2008 and accordingly declared him as elected. (Grounds 11 and 12).
(5) Whether the Trial Tribunal was right in its interpretation and application of Section 32(7) of the Electoral Act, 2006 when it came to the conclusion that the fresh election ordered did not require the calling for the acceptance of fresh nomination forms and that the 1st Appellant who did not contest the nullified general election of 14th April 2007 could not have been validly sponsored and/or was not qualified to have contested the election of 15th March 2008 (Grounds 2, 3, 4, 5 and 6).
(6) Whether upon careful evaluation of evidence in this case, the 1st and 2nd Respondents discharged the burden of proof on them so as to justify the Judgment of the Trial Tribunal in their favour. (Grounds 1, 8, and 9).
(7) Whether the Trial Tribunal accorded hearing to the 1st and 2nd Appellants particularly the 1″‘Appellant for not resolving the issue of his resignation from his employment in the face of overwhelming evidence to that effect.
(8) Whether the Trial Tribunal was right in its understanding, interpretation and application of the decision in Labour Party vs. INEC Appeal No. CA/K/69/2008 delivered on 10/04/08 by this Honourable Court having regard to the peculiar circumstances of this case by coming to the conclusion that the order for fresh election implied that only those who contested the nullified general election should contest the fresh election and that PDP could not have fielded a candidate. Grounds (10 and 20).
The Learned Counsel for the 1st and 2nd Respondents in his brief of argument formulated six issues for determination as follows:-
(1) Whether the 1st Appellant who was not a candidate in the nullified general election into the House of Assembly of Nasarawa State conducted on April 14 2007 could validly participate in the re-run election ordered by the Election Petition Tribunal (Grounds 2, 3, 4, 5, 6, 8, 9, 10, 11, 12)
(2) On whether the failure of the Tribunal to determine whether or not the 1st Appellant legally disengaged from his services before the election denied him fair hearing (Ground 7)
(3) Whether the Petition was presented on any legally cognizable ground of presenting Election Petition. (Ground 8).
(4) Whether the Trial Tribunal breached the rule of consolidation in its Judgment (Ground 13).
(5) Was the Petition properly endorsed by a legal practitioner (Ground 14). Whether the Trial Tribunal was wrong in granting the amendment of the Petition to correct typographical errors?
(6) Whether the election Petition presented by the 1st and 2nd Respondents as Petitioners in the lower tribunal was statute-barred.
The 3rd Respondent even though present in Court on 3rd day of June 2009 when this appeal first came up for hearing, he was not ready to engage the services of a Counsel nor file any brief of argument.
The Learned Counsel for the 4th to 68th Respondents in his brief of argument formulated only two issues for determination as follows:-
(1) Whether or not the Trial Tribunal had the Jurisdiction to entertain the Petition, same having been filed out of time.
(2) Whether or not the Trial Tribunal was right to have declared the 1st Respondent as duly elected invoking Section 42(1) of the Electoral Act 2006.
At the hearing Learned Senior Counsel for the 1st and 2nd Appellants referred to the Appellant’s brief of argument filed on 23/2/09 and the Appellant’s reply brief of argument to the 1st and 2nd Respondent’s brief filed on 16th day of March 2009. He adopted the briefs and relied on them in urging the Court to allow the appeal.
The Learned Counsel for the 1st and 2nd Respondents also adopted the 1st and 2nd Respondent’s brief of argument filed on 27/2/09 in urging that the appeal be dismissed.
As I said earlier, the 3rd Respondent did not file any brief of argument.
The Learned Counsel for the 4th to 68th Respondents also adopted and relied on the brief of argument filed on behalf of the said Respondents in urging that the appeal be allowed.
It is appropriate at this juncture to deal with the preliminary objection filed on behalf the 1st and 2nd Appellants by their Counsel and argued in the Appellant’s reply brief to 1st and 2nd Respondent’s brief of argument filed on 16/3/2009.
Preliminary Objection filed on behalf of 1st and 2nd Appellants.
The Learned Senior Counsel for the 1st and 2nd Appellants raised preliminary objection to the effect that the 1st and 2nd Respondents brief of argument dated the 26th day of February 2009 but filed on 27th day of February 2009 be struck out for being incompetent.
The grounds upon which the Preliminary Objection is based are inter-alia as follows:-
(1) The 1st and 2nd Respondent’s brief of Argument dated the 4th day of November 2008 but filed on 6/11/08 was filed out of time and without the leave of this Court.
(2) By virtue of paragraph 7 of the Practice Direction No.2 of 2007, the 1st and 2nd Respondents were obliged to file their Respondent’s brief of Argument within (5) five days after service of the Appellant’s brief of argument on them.
(3) The 1st and 2nd Respondents’ Brief of Argument filed on 6/11/08, (10) – ten days after service of the Appellant’s brief of Argument is patently defective and incompetent.
(4) That the 1st and 2nd Respondent’s brief of Argument filed on 27/2/09 was filed during the subsistence of the earlier brief of 1st and 2nd Respondents filed on 6/1 1/08 thereby creating two existing briefs.
(5) The 1st and 2nd Respondents had no right to file two separate Respondents’ brief of argument in the same appeal and or file an original Respondent’s brief in response to Amended Appellant’s brief of Argument.
Learned Senior Counsel for the Appellant formulated only one issue for determination in the preliminary objection as follows:-
“Whether the 1st and 2nd Respondents’ Brief of Argument dated the 26th day of February 2009 but filed on 27/2/2009 during the subsistence of their earlier brief filed on 6/11/08, ten (10) days after service of the Appellant’s brief of Argument on 27th October 2008 is competent and valid having regard to paragraph 7 of the Practice Direction No. 2 of 2007 as well as the entire circumstances of this case.”
It is on record that there was no response to the preliminary objection filed on behalf of 1st and 2nd Appellants by Learned Counsel for the 1st and 2nd Respondents.
Learned Senior Counsel for the 1st and 2nd Appellants referred to paragraphs 5 and 7 of the Practice Direction No .2 of 2007 and he submitted that the use of the word “shall” in paragraph 7 of the Practice Direction makes it mandatory or obligatory on the part of the 1st and 2nd Respondents to file their Respondents’ brief of Argument within 5 days after service of the Appellants’ brief of argument. He referred to the following cases:-
– Ogidi vs. The State (2005) 5 NWLR Part 918 Page 286 at 327 Paragraph C-G:
– O.A.U. Ile-Ife vs. R. A. Olivide & Sons Ltd (2001) 7 NWLR Part 712 Page 456 at 476 Paragraphs A – B;
– Abiodun vs. A.G. Federation (2007) 15 NWLR Part 1057 at 359 particularly at 396.
It was submitted on behalf of 1st and 2nd Appellants that the brief of Argument filed in this case on 6th November 2008 is patently invalid, incompetent and a nullity having been filed out of time.
Learned Senior Counsel for the 1st and 2nd Appellants referred to the 1st and 2nd Respondent’s brief of argument filed on 27/2/2009 in response to the Amended Applicants’ brief of Argument filed on 23/2/2009. He then submitted that the 1st & 2nd Respondents cannot maintain two separate briefs of Argument in the same appeal. He went further in his submissions that the second 1st and 2nd Respondents’ brief of argument filed on 27/2/2009 amounts to gross abuse of Court process and as such ought to be struck out. He referred to the following cases:-
– Umeh vs. Iwu (2008) 8 NWLR Part 1089 Page 225 at 246.
– Manson vs. Halliburton Energy Services Ltd (2007)2 NWLR Part 1018 Page211 at 228.
The main contention of the Learned Senior Counsel for the Appellants is that the 1st and 2nd Respondent’s brief of argument dated 26th day of February 2009 but filed 27th February 2009 during the subsistence of earlier brief filed on 6/11/08 ten days after service of the Appellants’ brief of argument on 27th day of October 2008 is incompetent.
Even though the Learned Counsel for the 1st and 2nd Respondents did not respond to this objection but relevant material to do justice to the matter are contained in the Court’s record.
It is true that pursuant to paragraphs 5 and 7 of the Practice Direction No. 2 of 2007 the Appellant shall file and serve on the Respondents’, the Appellants’ written brief of argument within 10 days after the service of the record of proceedings. Thereafter the Respondent shall file and serve on the Appellant his own brief of argument within 5 days after service of the Appellants’ brief of argument.
In this appeal under consideration, the 1st and 2nd Respondents instead of filing the Respondents’ brief within the 5 days, filed it 10 days thereafter without regularizing their position.
For proper understanding of paragraphs 5 and 7 of the Practice Direction No. 2 of 2007 it would be necessary to look at the definition of the word “shall”.
– In the New Webster’s Dictionary of the English Language the word shall is defined thus:-
– “used to express futurity or promise, intention or command.”
In Blacks Law Dictionary (Sixth Edition) it is defined as follows:-
“shall” As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, the term “shall” is a word of command and one which has always or which must be given a compulsory meaning, as denoting obligation. The word in ordinary usage means “must” and is inconsistent with the concept of discretion.”
From the references above, there can be no doubt that when the word “shall” is used in a statute, it means a command to do a particular act. There is no room for exercise of discretion.
Therefore, the word “shall” as used in paragraphs 5 and 7 of Practice Direction No. 2 of 2007 referred to above means that it is mandatory for both the Appellant and the Respondent to carry out certain duties within a specified period. The failure of the Respondents to file and serve on the Appellants, the 1st and 2nd Respondents’ brief of argument within 5 days as commanded is fatal and it rendered the 1st and 2nd Respondents brief of argument filed 10 days after being served with the Appellants’ brief of argument incompetent.
But the 1st and 2nd Appellants created a way out for the 1st and 2nd Respondents by asking for leave of this Court to amend the Appellants brief of argument earlier filed on 21/10/08. Pursuant to the order of this Court the 1st and 2nd Appellants filed Amended Appellants’ brief of Argument. The same was served on the Respondents on 24th day of February 2009 and they took advantage of this by filing the 1st and 2nd Respondents’ brief of Argument on 27th day of February 2009.
In my humble view the 1st and 2nd Respondents complied with paragraph 7 of the Practice Direction No. 2 of 2007 by filing the 1st and 2nd Respondent’s brief of argument within 5 days of the service of the 1st and 2nd Appellant’s amended brief of argument on them.
The only snag here is that the incompetent 1st and 2nd Respondents’ brief of argument is still subsisting. But in the interest of Justice what this Court ought to do is to strike out the incompetent 1st and 2nd Respondents’ brief of argument and it is accordingly struck out.
I am now left with the competent 1st and 2nd Respondents’ brief of argument.
Before I conclude on this preliminary objection, it is my view that this type of objections are not necessary because they tend to waste the precious time of the Court. The Learned Senior Counsel for the 1st and 2nd Appellants could have applied to strike out the incompetent 1st and 2nd Respondents’ brief of argument in order to make progress.
Courts are set up to do substantial justice between the parties that come before them for the settlement of their disputes and in doing so rules of Court must at all times be interpreted by Judges to prevent undue adherence to technicalities. One of the welcome changes that have taken place in Courts is the shift from technical Justice to substantial Justice.
It is always better to go into and treat the substance of a case rather than wasting time on unnecessary objection. I am fortified in my view above by the view held in the case of Onuoha vs. Ndubueze (2002) NWLR Part 750 page 172 at 182 at 183 Paragraphs D – E per Ogebe JCA (as he then was).
“It is more helpful to the Court if Counsel on either side could avoid bugging down the Court with unnecessary preliminary objections which can waste a lot of time of the Court which could otherwise be gainfully employed to resolve issues raised in the appeal for determination. Such valuable time is used to resolve preliminary objections which in most cases are unnecessary.”In conclusion, the preliminary objection filed by the Learned Senior Counsel for the 1st and 2nd Appellants is hereby overruled and it is accordingly struck out.
I shall now proceed to deal with the issues as raised in the appeal.
In determining this appeal, I think it will suffice to consider the issues formulated in the 4th to 68th Respondent’s brief of argument because it would settle the controversy between the parties in this appeal.
Issue 1
Whether or not the Trial Tribunal had Jurisdiction to entertain the Petition, same having been filed out of time.
The Learned Senior Counsel for the 1st and 2nd Appellants in his submission stated among others that the Petition of the 1st and 2nd Respondents to wit Petition No.EPT/NS/001/08 suffers from two crippling and irredeemable afflictions i.e.:-
(a) being statute barred
(b) Incurably defective having not been properly endorsed.
He referred to Section 141 of the Electoral Act 2006 as amended, and he submitted that a Petitioner seeking to challenge the conduct of election is obliged to file his Petition within 30 days of the declaration of the result of the election.
He relied on the following cases:-
– Alataha vs. Asin (1999) 5 NWLR Part 601 Page 1;
– Ogbebor vs. Daniuma (20031 15 NWLR Part 843 Pages 403 at 434 – 435:
Hon. Barrister Mohammed Umaru Kumalia vs. Senator Ali Modu Sheriff & Others Appeal No. CA/J/EP/GOV/244/2007 (Unreported):
– Action congress & Another vs. Jonah David Jang & Others Appeal No: CA/J/EP/GOV/275/2007 (Unreported);
– Senator Abu Ibrahim & Another vs. Ibrahim Shehu Shema & 4080 & Others Appeal No. CA/K/EP/GOV/28/08 delivered on 7th day of January 2009.
Learned Senior Counsel further submitted that Section 141 of the Electoral Act 2006 is clear, plain and unambiguous hence ordinary, literal and natural meaning ought to be accorded to the words of the section. He relied on the following cases:-
– Attorney General of Ondo State vs. Attorney General of Ekiti State (2001) 17 NWLR Part 743 Pages 706:
– Egbe vs. Adefarasin (1987) 1 SCNJ Page 1 at 17 – 18.
In view of the foregoing Learned Senior Counsel for the Appellants urged that this issue be resolved in favour of the Appellants and further that the appeal be allowed and the Judgment of the lower Tribunal delivered on 9th September 2008 be set aside.
In his own argument Learned Counsel for the 1st and 2nd Respondents stated that the 1st & 2nd Respondents presented their Petition on the 14th of April 2008 and that the Appellant’s contention was that the Petition was statute barred in that it was filed one day outside the statutory period of 30 days from the date the result was declared.
He referred to section 141 of the Electoral Act 2006 and submitted that the contention of Learned Senior Counsel for the Appellants lacks merit.
He submitted that the principles guiding computation of time are as follows:-
(a) When a period of time is prescribed by statute and that period is to be computed by reference to an event which has happened then the question whether the computation included or excluded the day on which the event happened would depend on the true intention of the legislature.
(b) Where the time presented for the benefit is for the benefit of the person affected, then as much time should be given to the language of the statute admits. Generally the computation would always exclude the date on which the event happened.
(c) Where a contraction of time prescribed would work detrimentally against the person affected by the computation, then the contraction which avoids the detriment would be preferred. He relied on the following cases:-
– Re North Exparte Halsluck (1895) 2 Q. B. 265:
– Marren vs. Dawson Bentley & Go. Ltd (1961) 2 Q.B.D. Page 1351
– Britan Kaur vs. Russel & Sons Ltd. (19731 Q.B.D. Page 3361
– Radiff vs. Bartholomew (1892) 1 Q.B.D. Page 161;
– Akeredolu vs. Akinremi (19851 2 NWLR Part 10 Page 787:
– Kauguma vs. NEC (19931 3 NWLR Part 284 Page 681.
– Yusuf vs. Obasanjo (2003) 16 NWLR Part 847 Page 554.
It was further submitted on behalf of 1st and 2nd Respondents that including the date the result of the election was declared in the computation of 30 days within which to present an election petition would work hardship and be contrary to the principle enunciated over the years.
Learned Counsel for the 1st and 2nd Respondents referred to Section 15 (2) (a) of the Interpretation Act.
Learned Counsel also referred to the following decisions which he stated were reached Per Incuriam and he urged this Court to overrule the decisions.
The cases are as follows:-
– Alatah vs. Asin (supra)
– Ogbebor vs. Danjuma (supra)
– Agbai vs. INEG (2008) 14 NWLR Part 1108 Page 417 at 434 Paragraph B – D:
– Action Congress vs. Janq. Appeal No.CA/A/EP/GOV/275/2007 and
– Kuamlia vs. Sheriff CA/J/EP/GOV/244/07 of 21st January 2008.
In concluding his submissions the Learned Counsel for the 1st & 2nd Respondents urged this Court to hold that the day of the declaration of election result will be excluded in the computation of time and if excluded the petition was filed within time. He then urged this Court to dismiss the appeal.
The Learned Counsel for the 4th to 68th Respondents submitted that the 1st and 2nd Respondents filed their Petition out of time and that the lower Tribunal was in error when it assumed jurisdiction over the Petition.
He referred to Section 141 of the Electoral Act 2006 and submitted that a petitioner seeking to challenge the conduct of an election must do so within thirty (30) days from the date the result of the Election was declared.
In this case, he said that fresh election was ordered by the Tribunal and it was held on 15th day of March, 2008, the result of the said election was declared on the same day i.e. 15th March 2008. He went further that the 1st & 2nd Respondents filed their Petition on the 14th day of April 2008 whereas the time within which they should have filed lapsed on 13th April 2008.
He submitted that the 1st & 2nd Respondents were clearly out of time allowed by law. He relied on the following cases:-
– Alataha vs. Asin (supra);
– Nnonye vs. Anyichie (1989) 2 NWLR Part 101 Page 110 at 122:
Learned Counsel submitted that there is no ambiguity in Section 141 of the Electoral Act 2006 and that a plain, literal and ordinary interpretation of it will show that an election Petition is to be filed within 30 days from the date the result was declared.
In conclusion, he submitted that the Tribunal lacked jurisdiction to have determined the petition.
The first issue under consideration in this appeal touches the jurisdiction of the trial Tribunal to have entertained the Petition. Even if it were the last of the issues raised by the parties, it would have been considered first because the issue of Jurisdiction is so fundamental and important.
It is a sine qua non to an action, and it must be decided as soon as it is raised.
It is due to its importance that it can be raised by parties at any stage of the case and even for the first time before an Appellate Court of any status. It is like what blood is in human body because without blood the organs of the body cannot function at all.
Also where a court lacks jurisdiction, no matter how well the trial is conducted, the trial would be a nullity. In other words the existence or absence of jurisdiction goes to the very root of the matter so as to sustain or nullify the Court’s decision or order in respect of the relevant subject matter.
See the following cases:-
– Alhaji saidu Abdulsalam vs. Alhaji Abdulraheem salam (2002) 6 SCNJ Page 388:
– John Ebhodaghe vs. Chief Omokhafe (2004) 12 SCNJ Page 106:
– Elabanjo vs. Dawodu (2006) 6 SCNJ Page 204.
Furthermore a court can only assume jurisdiction when a suit is properly initiated before it.
See – Frank vs. Abdu (2003) FWLR Part 158 Page 1330 at 1346.
In view of the foregoing, since this court is the final court in election matters (except Presidential Election) I will now analyse the said issue of jurisdiction as raised by parties to this appeal because the disposal of the issue would affect the appeal. Furthermore where an appeal is based on several grounds which includes a ground raising the issue of Jurisdiction as in this case when this Court is sitting as a final Court in an election Petition appeal, it would be unnecessary to consider arguments and decide other issues raised if at the conclusion of this matter, it is found that the trial Tribunal lacked Jurisdiction to hear the Petition.
See:
– Alhaji Bari Budo Nuhu vs. Alhaji Isolo Are Ogele (2003) 12 SCNJ Pages 158:
– Patrick Ikharaiale & 1 Other vs. Theophilus Okoh – Appeal Nos. CA/B/EPT/221/08 and CA/B/EPT/222/08 (An unreported decision of this Court delivered on 23rd day of April 2009).
It was contended on behalf of the Appellants and Learned Counsel for 4th to 68th Respondents that the Petition of the 1st and 2nd Respondents filed on 14th April 2008 i.e. 31 days after the result of the election was declared on 15th day of March 2008 is statute barred and that the trial Tribunal lacked Jurisdiction to entertain it.
The 1st & 2nd Respondents on the other had contended that the Petition was filed within time because the day of declaration of election result is usually excluded in the computation of time.
I will start the analysis of this issue by considering the provision of Section 141 of the Electoral Act 2006.
The said Section states as follows:-
Section 141:-
“An election Petition under this Act shall be presented within 30 days from the date the result of the election was declared.” (Underlining’s mine).
From the provisions of Section 141 of the Electoral Act set out above it is clear that a Petitioner seeking to challenge the conduct of election is obliged to file his Petition within 30 days of the declaration of the result of election.
Learned Counsel for the 1st & 2nd Respondents relied on Section 15(2) (a) of the Interpretation Act to buttress his contention that including the date the result of the election was declared in the computation of 30 days within which to present an election petition would work hardship on the Petitioner.
In my humble view I do not agree with the contention of Learned Counsel for the 1st and 2nd Respondents in this regard because Section 141 of the Electoral Act 2006 does not need the aid of the Interpretation Act to give full meaning to the words of the said section.
Sections 1 and 15 (2) (a) of the Interpretation Act Cap 192 Laws of the Federation of Nigeria 1990 provides as follows:-
Section 1:- This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question.” (underlining mine)
Section 15(2)(a):-
“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 golden rule of interpretation is that where the words of a statute are clear and unambiguous, the Courts must adopt the literal and plain ordinary meaning. It has been decided in so many cases that where the provisions of a statute are clear, plain and unambiguous, the Courts are precluded from resorting to any aid or any other cannon of interpretation. See the following cases:-
– Uwaifo vs. A. G. Bendel State (1983) 4 NCLR Page 1:
– S.P.D.C. vs. Isaiah (1997) 6 NWLR Part 508 Page 236;
– Elabanjo vs. Dawodu (2006) 15 NWLR Part 1001 at 76:
– Obi vs. INEC (2007) 11 NWLR Part 1046 at Page 565.
In Maxswel on Interpretation of Statutes, 12th Edition Page 28 it was stated thus:-
“The first and most elementary rule of construction is that the words and phrases on technical legislation are used in their plain technical meaning if they have acquired one, and otherwise in their ordinary meaning, and the second is that the phrases and sentences are to be construed according to the rules of grammar. “The length and detail of modern legislation” wrote Lord Evershed M. R., “has undoubtedly reinforced the claim of literal construction as the only safe rule.” If there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences, The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning, without, in the first instance, reference to cases’ ”
The pertinent question at this juncture is whether the Court in construing Section 141 of the Electoral Act 2006 (earlier referred to above) must resort to Interpretation Act.
In my own humble view, the provisions of Section 141 of the Electoral Act 2000 is clear, plain and unambiguous, therefore the ordinary, literal and natural meaning must be given to the words.
In Attorney General of Ondo State vs. Attorney General Ekiti State (2001) 17 NWLR Part 743 Page 706. Kutigi JSC (as he then was) stated thus:-
“It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provision (of an enactment) are clear and unambiguous, effect must be given to them 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 circumstance, I hold that the words used in Section 141 of the Electoral Act are clear and unambiguous and as such must be given their literal meaning without recourse to the Interpretation Act.
It was contended by Learned Counsel for the 1st & 2nd Respondents that the decisions reached in the following cases i.e.
– Alataha vs. Asin (supra);
– Ogbebor vs. Danjuma (supra);
– Agbai vs. INEC (supra):
– Action Congress vs. Jang Appeal No. CA/J/EP/GOV/275/2007 and Kumalia vs. Sheriff Appeal No.CA/J/EP/GOV/244/07 of 21st January 2008, to the effect that the day of the declaration of result would be included in the computation of time were reached per in curiam and he urged this Court to overrule the decisions. He relied on the following cases:-
– Akeredolu vs. Akinremi (supra):
– Yusuf vs. Obasanjo (supra):
With regards to Akeredolu’s case, it dealt with computation of time within which to appeal to the Supreme Court pursuant to Section 31(2)(a) of the Supreme Court Act.
In Yusuf vs. Obasanjo (supra) Supreme Court dealt with the amendment of an election Petition, whereas the present case is on computation of time within which an election Petition can be presented under Section 141 of the Electoral Act.
In my humble view there is no conflict between the decisions of this Court earlier referred to and the decisions of the Supreme Court in Akeredolu’s case (supra) and Yusuf vs. Obasanjo (supra).
In a similar case of Action Congress & Another vs. Jonah David Jang & Others (supra) in which this Court was called upon to depart from its previous decisions, it was held as follows:-
“while Ogbebor vs Danjuma (supra) which followed earlier case of Alataha vs. Asin (supra) is on interpretation of the provision of Electoral Act 2002 which is in pari materia with Section 141 of the Electoral Act 2006- is a decision based on application to amend a petition already filed. It has not been demonstrated that the provision relating to the filing of an amendment and reply thereto in either the Electoral Act 2002 or the Electoral Act 2006 with which it is in pari materia is the same as Section 141 of the Electoral Act 2006. It would have been an unwarranted extention of the authority of Yusuf vs. Obasanio (supra) beyond its legitimate borders to apply a 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.”
Furthermore, it is settled law that the Court of Appeal unlike the Supreme Court, is bound by its previous decision. The Court of Appeal can only depart from its previous decisions in the following circumstances:-
(1) Where two decisions of the Court of Appeal are in conflict, the Court must choose between them.
(2) Where the Court of Appeal comes to a conclusion that a previous ‘ decision although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court.
(3) Where the Court of Appeal comes to the conclusion that a previous decision was given per in curiam i.e. in ignorance of a statute or other binding authority, the court is not bound by it.
(4) Where the previous decision was decided without jurisdiction.
After a careful examination of the decisions which the Learned Counsel for 1st and 2nd Respondents urged this Court to overrule, it is my view that the cases does not fall under any of the category enumerated above. In the circumstance, this Court is bound by those decisions which for clarity sake are as follows:-
In Alataha vs. Asin (supra) Page 32 at 44 Paragraphs E – F where Salami JCA stated thus:-
“The time therefore began to run in this case on 7th December 1998 when Exhibit “1” or “R1” was issued declaring the first Respondent “as being the winner of the election. The time to sue was up on that day because from that day the petitioner could present their petition against the Respondents and all the material facts required by them to prove their case had happened.”
Also in Ogbebor vs. Dajuma (supra) Page 403 at 434 – 435 this Court per Ngwuta JCA while interpreting Section 132 of the Electoral Act 2002, which is in pari materia with Section 141 of the Electoral Act 2006 had this to say:-
“The election was held on the 12th day of April 2003 and the result was declared on 13th April 2003…… The requirement that the Petition be filed within 30 days from the date the result is declared means that the Petitioner had 30 days from 13/4/2003 within which to present his petition and this includes 13th April 2003…..It follows that the Petition was filed two clear days outside the 30 day period stipulated in Section 132 of the Act. It was wrong for the Tribunal to resort to Section 15(2) (a) of the Interpretation Act inspite of the contrary intention in the said section 132 of the Electoral Act 2002. It was therefore incompetent and the Tribunal had no Jurisdiction to entertain it. The Tribunal could have validly struck out the Petition solely on this ground.”
Recently in Hon. Barrister Mohammed Umara Kumalia vs. Senator Ali Modu Sheriff & others Appeal No. CA/J/EP/GOV/244/2007 (Unreported): delivered on 21/1/2008, This Court at the Jos Division dealt with the issue of Statutory Bar. In that case, the election result was declared on 15th day of April 2007 in respect of the Governorship seat of Borno State. The Petition against the declaration was filed on 16th May 2007. In holding that the Petition in that case was statute barred, this court per Rabiu Danlami Muhammad JCA at page2l stated thus:-
“In the circumstance, we hold that time began to run on 15th April 2007 i.e. the day the result of the Governorship election was declared. It is not in dispute that the result of the election was declared on 15th day of April 2007. It is also common ground that the Petition was presented on 16th day of May, 2007. 30 days from 15th April, 2007 will end on 14th May 2007, the Petition was filed 2 days outside the mandatory period stipulated by Section 141 of the Electoral Act. The Petition is therefore statute or time barred.”
In this appeal under consideration when does time begin to run for the purposes of Section 141 of the Electoral Act 2006?
From the clear provisions of Section 141 of Electoral Act set out earlier in this Judgment, it is elementary that a Petitioner seeking to challenge the conduct of election is obliged to file his petition within thirty (30) days of the declaration of result of the election.
In this case it is not in dispute that fresh election ordered by the Tribunal was held on the 15th day of March 2008, the result of the said election was declared on 15th day of March 2008.
On the other hand the first and second Respondents filed their Petition, before the trial tribunal on the 14th day of April 2008.
By virtue of the provisions of Section 141 of the Electoral Act 2006, time began to run against the 1st and 2nd Respondents on the 15th day of March 2008 when the result of the election was declared. By simple calculation, 30 days from the 15th day of March 2008 when the result of the election was declared lapsed on 13th day of April 2008.
In the circumstance, the Petition filed at the trial Tribunal by the 1st and 2nd Respondents on 14th day of April 2008 was filed out of time by one day, consequently it is statute barred. As I stated earlier in this Judgment, recourse to Interpretation Act could not aid the 1st and 2nd Respondents because of the contrary intention in Section 141 of the Electoral Act 2006.
On this score, since the issue concerning lack of jurisdiction succeeded, it would not be necessary to consider other issues raised by the parties to this appeal.
In the final analysis this appeal succeeds and it is allowed. The Judgment of the trial Tribunal delivered in this case on 9th September 2008 is hereby set aside, in its place the Petition filed by the 1st & 2nd Respondents is hereby struck out for being incompetent.
The return of the 1st Appellant Mohammed Baba Ibaku is hereby affirmed.
Other Citations: (2009)LCN/3460(CA)
