Mr. David Umaru & Anor V. Dr. Muazu Babangida Aliyu & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
UWANI MUSA ABBA AJI, J.C.A.
This is an appeal against the interlocutory and final decisions of the National Assembly, Governorship and Legislative Houses of Assembly Election Tribunal, Holden at Minna, Niger State as contained in the Ruling delivered on the 22nd day of October, 2007 and the final decision delivered on the 9th day of June, 2008.
On the 14th day of April, 2007, election was conducted by the Independent National Electoral Commission the 3rd Respondent herein into the office of the Governor of Niger State. The 1st Appellant David Umaru was sponsored by the 2nd Appellant, the All Nigeria Peoples Party (ANPP) to contest the said election. The 1st Respondent was also sponsored by the 2nd Respondent, the Peoples Democratic Party (PDP) to contest the election. Other political parties also sponsored candidates for the election, but for the purpose of this appeal, it is irrelevant to delve into their contest as they were never joined in the petition.
At the conclusion of the elections, the 3rd and 4th Respondents on the 15th day of April, 2007, declared and returned the 1st Respondent, Dr. Muazu Babangida Aliyu as the winner of the election having scored majority of lawful votes cast at the election. The Petitioners now Appellants were dissatisfied with the declaration and return of the 1st Respondent as the Governor Elect of Niger State, filed petition on the 15th day of May, 2007 before the National Assembly, Governorship/Legislative Houses Election Tribunal, Minna, Niger State, henceforth simply referred to as the Tribunal, upon the following three (3) main grounds:-
(I) That the 1st Respondent as at the date of the election being 1st April, 2007 was not qualified to be elected Governor of Niger State by reason of having failed to resign from Civil Service of the Federation 30 days to the date of the election contrary to Section 182(1)(9) of the Constitution of the Federal Republic of Nigeria, 1999.
(II) That 1st Respondent who contested on the platform of the 2nd Respondent for the Governorship election did not secure the majority of lawful votes cast at the election and that the 1st Petitioner/Appellant won the said election by majority of lawful votes cast and ought to have been returned.
(III) That the return and declaration of the result by 3rd and 4th Respondents in favour of the 1st Respondent was wrongful because the election was marred and vitiated by widespread~ massive and several electoral irregularities and or malpractices which are substantial non-compliance with the provisions of the 1999 Constitution and Electoral Act and extant regulations and same substantially affected the result of the elections.
The Petitioners/Appellants pray the Tribunal as follows:-
(A) That the results in all the polling units in the local government areas of Niger State mentioned above more particularly Bida, Agaie, Gbako, Edati, Lapai, Lavun, Mokwa, Katcha, Rijau, Magama, and Wushushi, be nullified by reason of the malpractices, noncompliances, irregularities and other electoral offences committed by the Respondents which marred the election in these areas.
(B) An Order of this Tribunal declaring the 1st Petitioner as the Governor Elect for Niger State at the election conducted on the 14h April, 2007 having secured the majority of lawful votes cast in the remaining Local Government, areas of Niger State and was therefore entitled to have been return as the winner of the election.
In the alternative:-
(C) An Order directing the Respondents more particularly the 3rd to 15th Respondents to conduct fresh election in all the polling units in the local government areas mentioned above.
(D) And for such further or other consequential orders necessary to give effect to the orders that the tribunal is empowered to make under the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
The Respondents joined issues with the Appellants by filling their respective replies in which they denied all the grounds of the petition and the matter proceeded to trial.
The 1st Appellant testified and called two witnesses, and tendered 3,500 Exhibits, mostly INEC documents. All the Respondents chose to rest their case on that of the Appellants. Written addresses were ordered. The 1st Respondent in his written address raised the issue of the competence of the petition on the ground that the petition was not filed within 30 days as required by Section 141 of the Electoral Act, 2006.
In a considered judgment delivered on the 9th day of June, 2008, the Tribunal dismissed both the issue on the competence of the petition and the petition itself. This is what the Tribunal held while dismissing the issue on competence of the petition at page 4007 of its judgment in volume X of the record of proceedings;
“As for us, we have no difficulty in resolving this apparent conflict between the two sets of the decision of the Court of Appeal presented to us, in favour of those which say that in computing time for a petitioner to file his petition, both the interpretation Act, and the Civil Procedure Rules of the Federal High Court apply and that the day of declaration of result must be excluded. We find support for this our view in the Supreme Court case of YUSUF VS OBASANJO (supra) cited by learned counsel to the 1st Petitioner in his reply address.
In dismissing the petition, the Tribunal held at page 4069 of volume X of the Record of Appeal thus;
“Having considered this petition very carefully, we hold that the election to the office of the Governor of Niger State held on the 14th day of April, 2007 was conducted in substantial compliance with the provisions of the Electoral Acts 2006 that the 1st Respondent was qualified to contest that election and was dully returned as the winner by a majority of lawful votes cast at the election. We consequently order that this petition be and is hereby dismissed.”
Being dissatisfied with this judgment, the Appellants filed two Notices of Appeal. The first notice of appeal containing five grounds of appeal was filed on the 10th day of June, 2008. The second notice of appeal containing twenty-three grounds of appeal was filed on the 28th June, 2008. The Appellants, in their amended brief of argument deemed filed on the 28th day December, 2008 abandoned the first Notice of Appeal filed on the 10th June, 2008 and adopted the second Notice of Appeal filed on the 28th June, 2008 containing twenty-three grounds of appeal. This they are at liberty to do. See THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, AMORCH (NIG) VS HENRY O. AWONIYI & ORS (1994) 7 NWLR (PT.355) 154; and TUKUR VS GOVERNMENT OF GONGOLA STATE (1988) 1 NWLR (Pt.68) 39. An Appellant can validly withdraw one of two notices of appeal and then proceed to argue his appeal on the other remaining notice of appeal. Consequently, the Appellant’s notice of appeal filed on the 10th June, 2008 is deemed abandon and accordingly struck out. From the grounds of appeal filed on the 28th June, 2008, the Appellants distilled ten issues for determination, as set at hereunder:-
1. Whether having regard to the state of the pleadings and the evidence led in the circumstances of the case the tribunal rightly held that the 1st Respondent was qualified under Section 182(1) (g) of the Constitution to contest the Governorship Election conducted in Niger State on the 14th of April, 2007? (Grounds 1-81 14).
2. Whether the tribunal acted upon legal principles in admitting Exhibits H1 and R2 which were not supported by any pleading. (Ground 9).
3. Whether the tribunal was right in rejecting the public service rules and the petitioners evidence based on it on the ground that they were not supported by pleadings.
(Ground 10).
4. Whether the evidence of the 1st petitioner and the testimony of PW1 were hearsay because they were not present when the duly certified Public documents testified upon were made (Ground 12).
5. Whether having regard to the lawful votes cast at the election, the tribunal ought not to have returned the 1st Appellant as the duly elected Governor of Niger State (Ground 13).
6. Whether the tribunal did not set up a different case for the Respondents by holding that paragraphs 5 and 6 of the petition was vague when the Respondents adequately joined issues on same. (Ground 15).
7. Whether the tribunal did not miscomprehend and misapply the decision in BUHARI v. OBASANJO in the light of the proviso to Section 144(2) of the Electoral Act 2006 which miscomprehension and misapplication occasioned serious miscarriage of justice (Ground 17).
8. Whether the tribunal was right in holding that there were no sufficient facts remaining to sustain the petition upon abandonment by the Appellants of averments dealing with criminal allegations (Ground 22).
9. Whether the evaluation of evidence by the tribunal is not perverse, not contrary to sound legal principles and ought not to be set aside having regard to the state of pleadings and evidence before it. (Ground 16).
10. Whether tribunal properly guided itself in determining which votes were valid and which were invalid, in deciding who scored majority of lawful votes on the basis of evidence adduced before the tribunal. (Grounds 11, 18, 19, 20, 21, 23).
The 1st and 2nd Respondents in their respective amended briefs of argument adopted the issues for determination as formulated by the Appellants. The 3rd-15th Respondents on their own part formulated only three issues for the determination of the appeal. They are as follows:-
(i) Whether the 1st Respondent was qualified to contest election into the office of Governor of Niger State held on the 14th day of April, 2007.
(ii) Whether the election of the 1st Respondent as Governor of Niger Slate on 14th April, 2007 was invalid by reason of corrupt practices and noncompliance with the provisions of the Electoral Act, 2007.
(iii) Whether the 1st Respondent was duly returned as winner of the election to the office of the Governor of Niger State by a majority of lawful votes cast at the said election.
The 1st Respondent filed his notice of Cross-Appeal on the 25th day of June, 2008 containing a lone ground of appeal and formulated a alone issue for determination, to wit;-
“Whether the election Petition filed on the 15th day of May, 2007 in respect of the Governorship Election held on the 14th April, 2007 is competent having regard to the provisions of Section 141 of the Electoral Act.”
The Appellants/Cross Respondents seemed to have adopted the one issue formulated by the 1st Respondent/Cross Appellant.
In the 3rd Cross Respondent’s brief, Rotimi Ojo, Esq., formulated this one issue for determination:-
Whether the 1st and 2nd Respondents complied with the provisions of Section 141 of the Electoral Act, 2006 in filling the petition.
The 4th-15th Cross Respondents also formulated a lone issue to wit:-
“Whether the Election Petition filed on the 15th May, 2007 is competent having been filed outside the thirty (30) days period prescribed by the Electoral Act, 2006?”
At the hearing of the appeal on the 14th January, 2009, learned senior counsel for the Appellants, Chief Ahamba, SAN, adopted his brief of argument in respect to the interlocutory Appeal No: CA/A/EP/317/2007, filed on the 23rd November, 2007 and urged the court to allow the appeal.
Ayodele, SAN, for the 1st Respondent adopted and relied on the 1st Respondent’s brief in the interlocutory appeal dated 7th December, 2007 and filed on the 10th December, 2007 in its entirety and urged the court to disallow the appeal and dismiss same. The 2nd Respondent’s Counsel Rotimi Ojo Esq., adopted the 2nd Respondent’s brief dated the 11th January, 2008, but abandoned the preliminary objection and urged the court to disallow the appeal and dismiss same. Dr. S. S. Ameh, SAN, for the 3rd to 15th Respondents adopted the brief of argument he filed on the 14th January, 2008 and urged the court to allow the appeal.
With respect to the main appeal, No.CA/A/A/EP/232/2008, the learned senior counsel for the Appellants, Chief Ahamba, SAN, adopted the Appellants’ Amended brief of argument deemed properly filed on the 11th December, 2008 by order of this court granted on the same day. He also relied on the Appellants’ Reply brief to the 1st Respondent’s brief filed on the 4th November, 2008. In respect of the 2nd Respondents brief of argument, Chief Ahamba, SAN, adopted the Appellants’ reply brief in respect of same filed on the 4th November, 2008. In respect of the 3rd – 15th Respondents Amended brief of argument, he adopted the reply thereto filed on the 4th November, 2008.
With respect to the cross appeal, the learned senior counsel for the Appellant adopted and relied on the Appellants’ Cross Respondents’ brief of argument filed on the 16th November, 2008 and deemed properly filed on the 17th December, 2008. He adopted all the processes filed and urged the court to allow the appeal and dismiss the cross appeal.
The 1st Respondent filed an amended brief of argument dated 9th January, 2009 but deemed properly filed on the 14th January, 2009, in response to the Appellant’s amended brief of argument and urged the court to dismiss the appeal.
On the cross appeal, learned senior counsel adopted and relied on the Cross Appellant’s brief dated 9th January, 2009 and deemed properly filed on the 14th January, 2009 and urged the court to allow the cross-appeal.
Rotimi Ojo, Esq., for the 2nd Respondent adopted and relied on the 2nd Respondent’s amended brief of argument dated 8th January, 2009 and filed on the 9th January, 2009 but deemed properly filed on the 14th January, 2009. He also relied on a preliminary objection founded on ground 9 of the amended notice of appeal. The learned counsel, urged the court to strike out ground 9 of the grounds of appeal founded on the admissibility of Exhibits R1 and R2 and to also dismiss, the appeal.
The 3rd Cross Respondent, adopted its brief of argument filed on the 31st October, 2008 and urged the court on the authority of HABU IBRAHIM VS IBRAHIM SHEHU SHEMA, unreported delivered on the 7th January, 2009 in appeal NO.CA/K/EP/GOV/98/2008 to allow the cross appeal.
Dr. S. S. Ameh, SAN for the 3rd-15th Respondents, adopted their amended brief of argument deemed properly filed on the 14th January, 2009. He adopted same as their argument and response to the Appellants’ amended brief of argument and urged the court to dismiss the appeal.
The learned senior counsel submitted in the alternative that based on the pleadings, the issue of resignation was never an issue before the trial tribunal. He therefore urged the court to dismiss the appeal.
On the cross appeal, he submitted that the 4th to 15th Respondents brief was filed on the 3rd October, 2008. Learned senior counsel adopted his brief and submitted that this has determined the matter effectively and urged the court to allow the cross appeal.
In his response, learned senior counsel for the Appellants, Chief Ahamba, SAN, submitted that they have joined issues on issue of resignation or retirement of the 1st Respondent.
On the severance of pleadings Chief Ahamba, SAN, submitted that after removing the criminal allegations, there is enough evidence to sustain the other allegations in the petition. With regard to the computation of time for filing of election petition, the learned senior counsel referred to page 4007, volume 10 of the records of appeal where the tribunal relied on the authority of YUSUF VS OBASANJO (2003) 16 NWLR (PT.847) 532 as the correct position of the law. He referred to the cases of KUMALIA VS SHERIFF (unreported), the recent case of HABU “IBRAHIM V SHEMA (supra), and AKUME VS LIN (2008) 16 NWLR (PT.1114J 490, and the case of NNONYE VS ANYICHIE (1989) 2 NWLR (PT.101) 120, and submitted that despite all these authorities the tribunal relied on the case of YUSUF V OBASANJO (supra) on reckoning the date for the filing of election petition to be from the day after the declaration of election result. Chief Ahamba, SAN, also referred to the case of NWAKO VS GOVERNOR OF RIVERS STATE (1989) 2 NWLR (PT.204) 470 at 480-483 and submitted that the case was not brought to the attention of the court in the cases cited above.
Learned senior counsel referred to the case of AKUSOBI vs. OBINECHI (2004) 2 NWLR (Pt.857) 355 at 370 and the case of AKUME VS LIN (supra) at page 505 and submitted that the decision of the Supreme Court in YUSUF VS OBASANJO (supra) on Section 141 was not obiter but ratio decidendi and urged the court to consider these authorities on the computation of time. Chief Ahamba, SAN, also drew the attention of the court to the case of ADISA VS ONYIWOLA (2000) 10 NWLR (PT.647) 116 at 181-182 and urged the court to be guided by the authority cited.
Learned senior counsel also submitted that paragraph 49(2) of the First Schedule to the Electoral Act is part of the Electoral Act and not a paragraph on its own and urged the court to place reliance on the case of YUSUF VS OBASANJO (supra) and urged the court to allow the appeal.
Ayodele, SAN, for the 1st Respondent/Cross Appellant urged the court to place reliance on its judgment in the case of KUMALIA VS SHERIFF (2008) All FWLR (PT.431) 1042 and to dismiss the appeal.
Before delving into a consideration of the two appeals proper, it is necessary in the circumstances of this case to consider the 1st Respondent’s Cross Appeal. This is necessary because the cross appeal is one challenging the competence of the petition itself and in effect the jurisdiction of the tribunal to entertain the same. The issue of jurisdiction is a threshold issue and life wire for the continuance of any proceedings. Thus, objections to the court’s jurisdiction ought to be dealt with at the earliest opportunity as any proceedings embarked upon without jurisdiction is a nullity and void abinitio. See KOTOYE VS SARAKI (1994) 7 NWLR (PT.3571 414; ELABANJO VS OAWODU (2008) 15 NWLR (PT.1001) 76.
The 1st Respondent/cross Appellant in his amended Cross-Appellant’s brief of argument formulated this issue for determination;
Whether the Election Petition filed on the 15th day of May, 2007 in respect of the Governorship election held on the 14th April, 2007 is competent having regard to the provisions of Section 141 of Electoral Act. Arguing this issue, learned senior counsel for the Cross Appellant Ayodele, SAN, submitted that the petition was filed on the 15th of May, 2007 as shown on page 1 and page 164 of volume 1 of the record of proceedings and the result of the election was declared on the 15th of April, 2007. It was submitted that when the petition was filed on the 15th day of May, 2007 it was filed outside 30 days provided by Section 141 of the Electoral Act. It was also submitted that it is the duty of the court to give effect to the clear meaning of the words used by the legislature as it is not the duty of the court to travel outside the clear and unambiguous wordings of the enactment. The case of; A.G. ONDO STATE VS A.G. EKITI STATE (2001) 17 NWLR (PT.943) 709 or (2001) 10 SCNJ 117 at 146, per Kutigi, JSC (as he then was) was referred to in support of his submission and submitted that the emphasis is on the wordings of Section 141 of the Electoral Act 2006. Learned senior counsel submitted that the issue considered by the Supreme Court in YUSUF VS OBASANJO (2003) 16 NWLR (PT.847) 532 was an application for amendment of petition and not the interpretation of section 141 of the Electoral Act.
Learned senior counsel referred to the case of HON. BARRISTER MOHAMMED UMARA KUMALIA VS SEN. ALI MODU SHERIFF & 3 ORS (2008) ALL FWLR (PT.431) 1032 and urged the court to follow its decision in the said case that the interpretation Act does not apply in construing the provisions of Section 141 of the Electoral Act, 2006. Learned counsel also referred to the recent decision of this court in the unreported case of ACTION CONGRESS & ANOR VS JONAH DAVID JANG & ORS, APPEAL NO.CA/A/J/EP/GOV/275/2007 delivered on the 26th February, 2008. It was submitted by the learned senior counsel that the Tribunal ought to have followed the decisions cited therein even though there are earlier decisions of this court which go the other way.
On paragraph 49(2) of the First Schedule referred to by the learned Cross Respondents’ Counsel, Learned Senior Counsel submitted that there are two fundamental issues involved in this submission in that there was no petition whatsoever in that it was statute barred even at the time of filling. It was also submitted that there would be no proceedings in which steps were taken by either side, and that, the fact that the election petition was filed out of time deprives the Election Tribunal of its jurisdiction. The case of GEORGE AKUME & ANOR VS CHIEF DR. SIMON LIN & 2 ORS (2008) 16 NWLR (PT.1114) 490 at 503 and 508 was referred to. On conflicting decisions of courts of equal jurisdiction over the same subject matter in dispute, learned counsel referred to the case of CHIEF SAMPSON AKPAN MKPEDEM VS SUNDA Y OFUN UDO & ORS (2000) 9 NWLR (PT.673) 631 at 644. Learned senior counsel submitted finally on this issue that for the purpose of filing a petition under Section 141 of the Electoral Act, 2006, the more recent decisions of this court already referred to in this argument represent the correct position of the law as the case of YUSUF VS OBASANJO (supra) on which the Election Tribunal relied was considered in both cases. It was also submitted that it cannot be argued that the decisions were made per incuriam as they were decisions of the full court. Learned counsel urged the court to allow the cross appeal and strike out the petition.
In his response, learned senior counsel for the Appellant’s Cross/Respondents, Chief Ahamba, SAN submitted that the cross appeal is misconceived as the decision of the Tribunal is unassailable. Chief Ahamba, SAN, referred to Section 1 of the Interpretation Act Cap 192 Laws of the Federation of Nigeria and submitted that the Interpretation Act is of general application to all statutes except where specifically otherwise provided and that the interpretation Act therefore applies to the Electoral Act, citing in support the case of YUSUF VS OBASANJO (2003) 16 NWLR (PT.847) 532 at 575 to 577. He submitted that the respective justices left no one in doubt in their judgments as to the application of the Interpretation Act to the Electoral Act and that all the justices are in consensus that the reckoning starts from the day after the declaration of results.
Chief Ahamba, SAN, submitted that Section 141 of the Electoral Act, 2006 is in pari materia with Section 132 of the Electoral Act, 2002 which was in issue in the case of YUSUF VS OBASANJO (supra). It is the view of learned senior counsel that the judicial interpretation of Section 132 of the Electoral Act 2002 is unquestionably applicable to the equivalent provision. Learned counsel opined that Section 141 of Electoral Act, 2006 is clear and unambiguous and that the section reckons the period from the day the result was declared and that this brings the Section within the ambit of Section 15 (2) (a) of the Interpretation Act which provides that where a period of days as in this case 30 days, is reckoned from the happening of an event i.e. the declaration of result, then the reckoning is construed as excluding the day of the declaration of the result and in this case 15th April, 2007. It was also submitted that there is nothing in Section 141 of the Electoral Act, or elsewhere in the Act which suggests directly or by implication the exclusion of the Interpretation Act in the interpretation of the Electoral Act as required by Section 1 of the Interpretation Act to enable the exclusion of the Interpretation Act. Learned counsel further submitted that election petition is sui generis and all it means is that, it is a proceeding with peculiar statutory provisions governing it, citing in aid of this proposition the case of ORUBU VS INEC (1988) 5 NWLR (PT.94) 323.
On the cardinal principle of interpretation of statutes, learned counsel referred to the cases of OVIAWE VS IRP LTD (1997) 3 NWLR (PT.492) 126 at 139;and OBI VS INEC (2007) TSC 268 at 317-318. It was further submitted that there is nothing in the expression from the date on which the result is declared in Section 141 of the Electoral Act which excludes the Section from the application of the expression “where the period reckoned from a particular event” contained in the Interpretation Act. It was therefore submitted by the learned senior counsel that the Supreme Court has put a seal of finality on the issue in the case of YUSUF VS OBASANJO (supra).
Chief of Ahamba, SAN, referred to the cases of UGWU VS IGWE (1999) 4 NWLR (Pt.600) 649; NNONYE VS ANYICHIE (1989) 2 NWLR (PT.101) 120; and KAMBA VS BAWA (2005) 4 NWLR (Pt.914) 43 at 78, where it was held that computation of time limited for the petitioner to file his petition starts from the next day after the declaration of the result of the election cited by the 1st Respondent Cross Appellant counsel and submitted that it cannot be argued that the present petition was filed out of time because calculated from the day after 15th April, 2007, 30 days period ends on 15th May, 2007, the day the petition was filed. Learned senior counsel, submitted that since their lordships in UGWU v. IGWE (supra) and KAMBA VS BAWA were not invited to depart from the decision of the court in NNONYE VS ANYICHIE (supra), that case is binding on the court and that any contrary decision is per incuriam; citing the case of NWAKO VS GOVERNOR OF RIVERS STATE (1989)2 NWLR (PT.204) 470.
Learned counsel further submitted that even the computation of time in the case of ALATAHA VS ASIN (1999) 5 NWLR (Pt.601) 32 was inconsistent with the suggestion that the date of event is included in the computation of time. It was thus submitted that the interpretation in Alataha’s case is consistent with the decision in AKEREDOLU vs AKINREMI (1985) 2 NSCC (Pt.1) VOL.16, 1283 at 1287 as there is nothing in the Electoral Act, 2006 and the Decree being construed in Alataha’s case which prohibits a petitioner from filing his petition on the date on which results are declared. It was thus submitted that the ratio in the judgment in Alataha’s case does not support the argument that the date of declaration of result of the election must be counted to determine whether a petition was filed within time. He referred to the case of ODALI VS. AHMADU (1999) 5 NWLR (Pt.601) 22 at 29, which submitted are on all fours with the decision in YUSUF VS OBASANJO (supra) and in accord with the decision in NNONYE VS ANYICHIE (supra).
Chief Ahamba, SAN, also referred to the decision of this court in the case of KUMALIA VS SHERIF (supra) and submitted that the court rejected the invitation to depart from its previous decision in OGBEBOR Vs DANJUMA (2003) 15 NWLR (PT.843) 403. Chief Ahamba, SAN, therefore urged this court to depart from both the cases of OGBEBOR VS DANJUMA and KUMALIA VS SHERIF (supra) For the reason that the two decisions are inconsistent with the decision of the Supreme Court in YUSUF VS OBASANJO (supra) and that the attention of the court was not drawn to the cases of NNONYE VS ANYICHIE (supra) and KAMBA Vs BAWA (supra) in either the Ogbebor’s case or the Kumalia’s case. Learned counsel urged the court to follow the guide provided in the case of NWAKO VS GOVERNOR OF RIVERS STATE (supra) and the case of UNIVERSITY OF LAGOS VS AIGORO (1984) N.S.C.C. (VOL.15) 745 at 755 where similar situation was considered and submitted that this court is subject to the same principle. Learned senior counsel further submitted that the case of ALATAHA VS ASIN (supra) was misconstrued as the case is actually in consonance with the Nnonye’s case. the Kumalia’s case and subsequently with the dicta of their lordships in YUSUF VS OBASANJO (supra). It was thus submitted that the contention of the Respondents that the petition was filed outside the time allowed by the Electoral Act, that is, within 30 days from the date of declaration of the result of the election is predicated on the unfounded ground that the 30 days period is inclusive of the date when the result was declared.
In urging the court to give preference to the authorities he cited, the learned senior counsel urged the court that such decisions of the Supreme Court are binding and must be given full efficiency and enforcement by the Court of Appeal citing Section 287(1) of the Constitution of the Federal Republic of Nigeria, 1999, and the case UDEZE vs CHIDEBE (1990) 1 NWLR (PT.125) 141 at 157.
Learned counsel therefore submitted that the case of ALATAHA VS ASIN (supra) cannot be preferred to the earlier cases referred to and Odali’s case as it is inconsistent with the four decisions (supra) and has subsequently been overruled by the Supreme Court’s decision in the case of YUSUF VS OBASANJO (supra) and similarly the case of OGBEBOR VS DANJUMA (2003) 15 NWLR (PT.843) 403 having been based on ALATAHA VS ASIN (supra) cannot be a good law, particularly when both are post NNONYE VS ANYICHIE (supra). It was also submitted that since there is nothing to show that the case was brought to the attention of the court in the two subsequent contrary decisions, and that therefore, the earlier decision remains good law, citing in support the case of NWAKO VS GOVERNOR RIVERS STATE (Supra) .
Learned senior counsel also submitted that in construing a statue dealing with access to court, the courts are lenient and prefer a longer time than a shorter interpretation which restrict access to justice and cited in support the case of AKEREDOLU vs. AKINREMI (1985) 2 NSCC (PT.1) VOL.16 1283 AT 1287 and submitted that none of the common sense approaches endorsed by the Supreme Court in the case referred to support the argument urged on us by the Cross Appellant to include the date of the happening of the event in construing time allowed a petitioner to file his petition.
Chief Ahamba, SAN also submitted that the issue of statue bar was not properly before the Tribunal. He cited paragraph 49 (2) of the First Schedule to the Electoral Act and submitted that since the petition was served on the 1st Respondent, there is no doubt that he has taken fresh steps and in any case there was no application before the Tribunal. It was submitted that the provision of paragraph 49 (2) is sui generis provision in that it bars raising of anything that would invalidate the petition or the proceedings. It was submitted that in KUMALIA VS SHERIFF (supra) the issue of statute bar was raised timeously before the Respondents took any further steps which distinguished it from the present case. Learned Senior Counsel therefore urged the court to discountenance the submission that the petition was statue barred and urged the court to dismiss the cross appeal as being unmeritorious.
In his own submission on this issue, learned counsel for the 3rd Cross Respondent, Ojo, Esq., submitted that the provision of Section 141 of the Electoral Act is not a complex one as the wordings are not ambiguous and the words should be given their natural and grammatical meaning. He cited the case of SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD VS FBIR (1996) 8 NWLR (PT 466) 256. It was submitted that the provision makes it mandatory for a prospective petitioner to file his petition within 30 days of the declaration of the election result. Learned Counsel submitted that this Court has recently put to rest the interpretation of Section 141 of the Electoral Act in the case of AGBAI EMMANUEL AGBAI & ANOR vs INEC & 6 ORS (2008) 14 NWLR (PT 110B) 1. On conflicting decisions of the Court of Appeal, Learned Counsel submitted that the latest decision is the one binding on the court, citing in support the case of CHIEF OGBORU vs CHIEF JAMES IBORI & ORS (2005) 13 NWLR (PT 942) 319 AT 418-419. Learned counsel urged the court to be bound by the decision in the case of AGBAI VS INEC (Supra) and to grant the relief in the cross appeal.
In his own submission, learned Senior Counsel for the 4th-15th Cross Respondents, Dr. S. S. Ameh, SAN, submitted that in the interpretation of statute’s plain and unambiguous words must be given their natural and grammatical meaning and cited the case of SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LT VS F.B.I.R (1996) 8 NWLR (Pt.466) 256. It was his view that in the instant case there was no need for the Tribunal to seek refuge in the Interpretation Act, Cap 192 of 1990 or the Federal High Court (Civil Procedure) Rules of 2000 and submitted that it is for this reason that the Tribunal should have preferred the recent case of ACTION CONGRESS & ARC PAM DUNG VS JONAH DAVID JANG & DRS unreported case No: CA/J/EP/GOV/275/2007 decided on 26th February, 2008 in the interpretation of Section 141 of the Electoral Act, 2006. Learned Senior Counsel also submitted that where there are conflicting decisions of courts of coordinate jurisdiction, the rule is that the one latter in time prevails and become the correct position of the law, citing in support the case of ANSA v. R.T.P.C.N (2008) ALL FWLR (PT 405) 1681. Learned Senior Counsel submitted that as the law stands, this petition was clearly filed out of time and the Tribunal is deprived of jurisdiction to entertain it. He referred to the case of NWABUEZE VB NWDRA (2005) ALL FWLR (Pt.272) 297 AT 314. The court was urged to allow the cross appeal and strike out the petition and to dismiss the main appeal.
The sole issue that calls for determination in this cross appeal as can be seen from the submissions of respective counsel is basically the interpretation of Section 141 of the Electoral Act, 2006. Section 141 of the Electoral Act, 2006 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 Senior Counsel for the Appellants/Cross Respondents, Chief Ahamba, SAN, argued extensively that the Interpretation Act Cap 123 Laws of the Federation of Nigeria is of general application and applies to all statutes except where specifically or otherwise provided and that it therefore applies to the Electoral Act, citing in support the case of YUSUF VS OBASANJO (2003) 16 NWLR (PT 847) 532 at 575 to 577; (2003) 16 NSCQR.151. Learned Counsel referred to the following cases where the courts have held that computation of time starts the day next after the declaration of result; citing NNONYE VS ANYICHIE (Supra); UGWU V IGWE (SUPRA) and KAMBA VS BAWA (Supra) which decisions he submitted were not given per incuriam, as their lordships were not called upon to depart from the interpretation approach adopted in NNONYE VS ANYICHIE (Supra) that, the case was binding on their lordships. It was submitted that in these cases the court computed time as provided in Section 15 (2) of the Interpretation Act. With regard to ALATAHA’S CASE (SUPRA), Chief Ahamba, SAN was of the view that the case was inconsistent with the suggestion that the date of event is included in the computation of time; he also cited ODALI VS AHMADU (Supra) which he submitted does not also support the argument that the date of the declaration of result must be counted to determine whether the petition was filed within time; which he submitted are on all fours with the position taken by the Supreme Court in YUSUF VS. OBASANJO (Supra).
Chief Ahamba, SAN stated that he is not unaware of the decision of this court in the unreported case of KUMALIA VS SHERIFF (Supra) in which the court rejected the invitation to depart from its previous decision in the case of OGBEBOR VS DANJUMA (2003) 15 NWLR (PT.843) 403 on the grounds that the conditions for so doing has not been established and further relied on the case of ALATAHA vs. ASIN (Supra). Chief Ahamba, SAN therefore urged the court to depart from these decisions and chose one in favour of a computation a day next after the declaration of result. Chief Ahamba, SAN, went into in-depth analysis of the decisions of this court particularly the recent decisions in ALATAHA vs ASIN (Supra) OGBEBAR VS DANJUMA (supra) ACTION CONGRESS & ANOR vs JONAH DAVID JANG & 9 ORS (SUPRA) AND KUMALIJA vs SHERIFF (supra) and submitted that this court should depart from them as none of them accord with common sense approach endorsed by the Supreme Court in the case of YUSUF vs OBASANJO (supra).
With the due respect to the learned senior counsel, no conflict exist between the decisions of this court referred to above and the decision of the Supreme Court in YUSUF VS OBASANJO (supra). This has been clearly explained in the unreported case of ACTION CONGRESS & ANOR VS JONAH DAVID JANG & ORS. In that case, the court was called upon to depart from its decision in OGBEBOR VS DANJUMA (Supra) and the court per Ngwuta, JCA, held as follows.
“While OGBEBOR VS DANJUMA (Supra) which followed an earlier case of ALATAHA VS ASIN (Supra) is on interpretation of the provision of Electoral Act 2002 in pari materia with Section 141 of the Electoral Act 2006. YUSUF VS OBASANJO 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 extension of the authority of YUSUF VS OBASANJO (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.”
This court unlike the Supreme Court is bound by its decision and can only depart from its previous decision when new facts emerged to show that the previous decision was wrongly decided, or was decided per incuriam or that it was decided without jurisdiction. The cases referred to by the learned senior counsel only interpret the provisions of Section 141 of the Electoral Act, 2006 and were properly decided based on the clear and unambiguous provision of Section 141 of the Electoral Act. They were therefore decided on basic and acceptable rules of interpretation and not given per incuriam and were not decided without jurisdiction. A decision can be said to be per incuriam when it was wrongly decided based on a wrong principle of law or the judge or judges were ill informed about the applicable law. This has not been the position in the decisions referred to that this court is now called upon depart. No grounds therefore exist for departure in the circumstances of this case. As a general rule, the only cases in which decisions should be held to have been given per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some features of the decisions or some step in the reasoning on which it is based is found on that account to be demonstrably wrong.
It is now well settled that, the rule of interpretation of statutes is that plain and unambiguous words must be given their natural and grammatical meaning. In SHELL PETROLEUM DEVELOPMENT COMPANY (NiG) LTD VS F.B.I.R. (1996) 8 NWLR (PT.466) 256 at 286 the Supreme Court per Uwais CJC held,
“…That if the words of a statue are plain, precise and unambiguous, they should be given their ordinary and natural meaning.”
Similarly, in ATTORNEY GENERAL ONDO STATE VS ATTORNEY GENERAL EKITI STATE, (2001) 17 NWLR (PT.743) 706, 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 them without resorting to any aid internal or external. It is the duty of the court to interpret the words of lawmakers as used.”
The words of a statute must be construed in accordance with the intent of the law maker. The primary duty of a court in the interpretation of a statutory provision is to give effect to the words used. See ROSSEK VS A.C.B. LTD (1993) 8 NWLR (PT.312) 382. Section 141 of the Electoral Act is plain, clear, simple and admit of no ambiguity and must therefore be given its ordinary, natural and grammatical meaning. The section simply states that an election petition presented under the Electoral Act shall be presented within thirty (30) days from the date the result of the election is declared. “From” in that provision connotes immediately without any delay. In other words, it means, the event will be reckoned from the stated period. Perhaps, if we may say, that is what gives the section it uniqueness as election matters are sui’ generis. It simply means from the happening of the event and in the instant case, the declaration of the election result on the 15th April, 2007.
The intention of the legislature is clear and it is that the computation must include the date on which the event happened and that is the declaration of result of the election and time will begin to run from that date and 30 days will include the date on which the declaration was made and in the instant case, the 15th April, 2007. There is no such contrary intention by the legislature as to exclude the date of the happening of the event and in this case the date of the declaration of result of the election. This is based on clear characteristic feature and uniqueness of election petitions. The words “from the date the election result was declared” makes the computation of time with the reference to the happening of the event. In fact this accords with the common sense approach as formulated by Chief Williams in his submission in AKEREDOLU VS AKINREMI’s case (supra) and as endorsed by the Supreme Court, which inter alia stated that, where a period of time is prescribed by statute and that period is to be computed with reference to an event which had happened, then the question whether the computation must include or exclude the date on which the event happened, would depend on the true intention of the legislature. In the instant ease, the true intention of the legislature is clear and plain and it is that the computation of time must include the date on which the event happened and in this case the 15th April, 2007 when declaration of result of the election was made.
Section 141 of the Electoral Act admits of no any other interpretation. The section cannot therefore be construed for the benefit of the person affected by the interpretation or to the detriment of the person affected by the interpretation. There is no such lacuna in the provision of Section 141 of the Act as to admit of a beneficial or detrimental interpretation with the view to excluding the date on which the event happened. There is in the circumstances no need to resort to the Interpretation Act or the Civil Procedure Rules of the Federal High Court in the interpretation of Section 141 of the Electoral Act. See AGBAI EMMANUEL AGBAI & ANOR VS INEC & ORS (2008) 14 NWLR (PT.1108) 1.
The jurisdiction of an election Tribunal to deal with election petitions is of a very special nature different from that in ordinary civil cases. The procedure is largely governed by a law made specifically to regulate the proceedings. That is why the nature of election petition is unique or sui generis and that is why any interpretation that is unique to itself is preferred distinct from the general principles of laws relied upon by the learned senior counsel in the interpretation of Section 141 of the Electoral Act. See ONITIRI VSBENSON (1960) SCNLR 314; OYEKAN VS AKINJIDE (1965) NMLR 381 at 85 and BUHARI VS YUSUF (2003) FWLR (PT.174) 329 at 354-355. It is because of its uniqueness or sui generis nature that any slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. It is not therefore the function of the court to sympathize with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship. That is the function of the legislature. See KRAUS THOMPSON ORGANISATION VS NIPSS (2004) 7 NWLR (PT.901) 44. In IFEZUE VS. MBADUGHA (1984) 1 SCNLR 431, it was held per Aniagolu JSC, that:-
“If there is nothing to modify, alter or qualify the language of a statute, it must be construed in the ordinary and natural meaning of the words and sentences used.
…..The object of all interpretation is to discover the intention of the law makers which is deducible from the language used. Once the meaning is clear, the courts are to give effect to it. The courts are not to defeat the plain meaning of an enactment by an introduction of their own words into the enactment.”
In the light of the above authorities on the principles of interpretation of statutes, we hold the view 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 the Federal High Court (Civil Procedure) Rules, 2000.
The time limit for presenting election petition is in the nature of statute of limitation and its intendment is to oust the jurisdiction of the Tribunal once the period prescribed is past. See LAMIDO VS TURAKI (1999) 4 NWLR (PT.600) 578. Time will therefore start to run when the results of the election are declared as the requirement for a valid presentation of election petition has become complete and everything a valid petition may be grounded on has come into existence.
Therefore in determining whether an action is statute barred, it is important to determine when time began to run. In FADERE VS ATTORNEY GENERAL OYO STATE (1982) 4 SC 1 it was held;
“Time therefore begins to run when there is in existence a person who can sue and another who can be sue and all facts have happened which are materials to be proved to entitle the plaintiff to succeed.”
In the instant case, it is the declaration of result that gave the Appellants the cause of action because at that time a combination of facts and circumstances which give rise to a right to sue or file a claim or petition in court for remedy have happened and this include all things which are necessary to give a right of action and all material facts which are to be proved to entitle the Appellants to succeed. In other words, with the declaration of the election result on the 15th April, 2007 all the facts required to be establish or give rise to a right of action have happened.
A cause of action accrues on the date on which the event happened. See N.N.P.C. VS ABOULRAHMAN (20GB) 12 NWLR (PT.993) 202; and ELABANJO VS DAWODU (2006) 15 NWLR (PT.1000) 76.
The decision of this court in the cases hereunder clearly laid to rest the question of when time begins to run for the filing of a petition in an election matter under Section 141 of Electoral Act. In ALATAHA VS ASIN (supra) it was held;
“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 petitioners could present their petition against the Respondents and all the materials required by them to prove their case had happened.”
See also OGBEBOR VS DANJUMA; KUMALIA VS SHERIF (supra); ACTION CONGRESS VS JONAH DAVID JANG (unreported) supra and SENATOR ABU IBRAHIM & ANORS IBRAHIM SHEHU SHEMA (unreported) Appeal No.CA/K/EP/GOV/28/2008, delivered on the 7th January, 2009. These cases are now the locus classicus in the computation of time in election petitions brought pursuant to section 141 of the electoral Act, 2006.
In the instant appeal therefore, time started to run on the 15th April, 2007 when the results of the election were declared. The thirty (30) days allowed for the presentation of the Election Petition under Section 141 of the Electoral act 2006 started running on the 15th April, 2007, therefore Election Petition presented by the Appellants on the 15th May, 2007 was presented on the 31st day after declaration of the result. It therefore means that the election petition of the Appellants/Cross-Respondents was presented one day outside the mandatory period envisaged by Section 141 of the Electoral Act. The petition filed on the 15th May, 2007 is therefore statute barred and the Tribunal lacked the requisite jurisdiction to entertain this petition it being statute barred.
Learned Senior Counsel for the Appellants/Cross Respondents, Chief Ahamba, SAN, had contended relying on paragraph 49(2) of the First Schedule to the Electoral Act, 2006 that the issue of statute bar was not properly before the Tribunal.
In this regard it was submitted that the 1st Respondent had taken several fresh steps after the petition was served on him, and that in any case there was no application before the Tribunal. It was further submitted that even if there had been an application before the Tribunal, the said Tribunal was enjoined not to allow the same as the provision of paragraph 49(2) is sui generis in that it bars the raising of anything that would invalidate a petition after a stage of the proceeding unlike the general situation of raising preliminary points of law at any stage of a proceeding. The Appellants submitted that the provision of paragraph 49(2) was not enacted in vain. They further submitted that in the case of KUMAILA VS SHERIFF the issue of the petition being statute barred was raised timeously before the respondents took any further step and that this is the distinguishing factor between that case and the instant one.
Paragraph 49 (1) of the First Schedule to the Electoral Act 2006, provides.
“An application to set aside an election petition on a proceeding resulting therefrom for irregularity or for nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
The learned senior counsel for the Appellants is not disputing the contention of the 1st Respondent to the effect that the issue of the instant petition being statute barred is jurisdictional in nature in as much as it challenges the competence of the Tribunal to have entertained the same. It is clear from several pronouncements of the Supreme Court and of this court that jurisdiction is very fundamental to adjudication by the courts or a Tribunal on the maters before them. It is most radical as it forms the foundation and/or cornerstone of all litigation. See NIGERGATE LIMITED VS NIGER STATE GOVERNMENT & 2 ORS (2008) ALL FWLR (PT.406) 1938 at 1965.
Though there is the tendency to equate “jurisdiction of a court” with its “competence” as if the two mean one and the same thing, the authorities have clearly brought out the point that the “competence” of a court is the hand maiden of the “Court’s jurisdiction” and the court must have both “jurisdiction” and “competence” to be properly seized of a cause or matter. A court is said to be “competent” where:-
(i) It is properly constituted with respect to the number and qualification of its members.
(ii) The subject matter of the action is within its jurisdiction; and there is no feature in the case which prevents the court from exercising its jurisdiction;
(iii) The action is initiated by due process of law and
(iv) Any condition precedent to the exercise of jurisdiction has been fulfilled.
See the cases of DR. IME SAMPSON UMANAH VS OBONG (ARC.) VICTOR ATTAH & ORS (2007) ALL FWLR (PT.346) 402: SOKOTO STATE GOVERNMENT OF NIGERIA & ORS VS KAMDEX NIGERIA LIMITED (2007) ALL FWLR (PT.365) 469: COTECNA INTERNATIONAL LIMITED VS IVORY MERCHANT BANK LIMITED & ORS (2006) ALL FWLR (PART 315) 26 at 43: MADUKOLU VS NKEMDILIUM (1962) 2 NSCC 374 at 379-380: and IBEANU VS OGBEIDE (1994) 7 NWLR (PT.359) 697 at 709.
The issue of jurisdictional competence equally received the attention of the Supreme Court in the case of MOBIL PRODUCING NIGERIA UNLIMITED vs LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY & ORS (2003) FWLR (PT.137) 1029. In the lead judgment delivered in the said ease, Ayoola, JSC; dwelling on “jurisdiction” recognized the tendency to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on the ascertainment of facts and stated that this leads to error.
It is trite that the law recognizes both “jurisdiction as a matter of procedural law” and “jurisdiction as a matter of substantive law” and it would appear clear that while ”procedural jurisdiction” can be waived by a litigant, no litigant can however waive the issue of “jurisdiction as a matter of substantive law”. See in this regard the case of JIKANTORO VS DANTORO (2004) ALL FWLR (Pt.216) 390. In the said case the Supreme Court stated the ready instance of waiver of procedural jurisdiction to be where a litigant submitted to the jurisdiction of the court where a writ was served outside jurisdiction without leave.
The Electoral Act 2006 in Section 147(3) vests the court or Tribunal with the power to strike out an election petition on the ground that it is not in accordance with the provisions of Part IX thereof, or the provisions of the First Schedule to the said Act on the motion of a respondent. The challenge to the competence of the instant petition in as much as reliance is being placed on its being statute barred by virtue of the provision of Section 141 which falls within Part IX is a jurisdictional issue which can be raised at any time and cannot be defeated by paragraph 49(2) of the First Schedule to the Electoral Act as argued by the Appellants. We are fortified in our view with the decision of this Court in MUHAMMADU BUHARI & 2 ORS VS CHIEF DLUSEGUN A. OBASANJO & ORS 17 NWLR (PT.850) 423.
We therefore hold that given the jurisdictional nature of the issue as to whether or not the instant petition is statute barred, the said issue was properly raised before the lower Tribunal and that the provision of paragraph 49(2) of the First Schedule to the Electoral Act which is incapable of repealing any provision of the Electoral Act cannot debar this court from giving the issue adequate consideration.
The Appellants/Cross Respondents’ by filing a petition one day outside the statutory period has resulted in fatal consequences to the petition. On the whole, it is our humble opinion that the petition filed on the 15th May, 2007 was filed on the 31st day and is therefore statute barred. The Tribunal therefore lacked the competence to entertain the petition. The trial and subsequent decision reached therein is therefore a nullity. The interlocutory appeal has no foundation upon which it could stand. It is hereby dismissed. The Cross Appeal therefore succeeds and it is hereby allowed. The petition filed on the 15th April, 2007 is hereby struck out for being incompetent and the appeal is also hereby dismissed.
The return and declaration of the 1st Respondent Dr. Mua’zu Babangida Aliyu as the Governor of Niger State is hereby affirmed.
There shall be no order as to costs. Each party is to bear its own cost.
Other Citations: (2009)LCN/3124(CA)
