Oniwara B. Ibrahim V. Ishola Balogun Fulani & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
CHIMA CENTUS NWEZE, J.C.A
The appellant herein was the petitioner at the Governorship and Legislative Houses Election Petition Tribunal, Ilorin, Kwara State [hereinafter referred to as the lower tribunal). He was, equally, a candidate in the election which the third-fifth respondents conducted on April 15, 2007. The electoral contest was for a seat into the Ilorin South Constituency of the Kwara State House of Assembly. He contested on the platform of the Democratic People’s Party [DPA].
On the said April 15, 2007, the third -fifth respondents declared and returned the first respondent in this appeal, a candidate who was sponsored by the second respondent, as the winner of the said election.
The appellant was dissatisfied with the outcome of the election, hence, his petition at the lower tribunal. Upon the settlement of the pleadings, the tribunal proceeded to the hearing and determination of the petition. It dismissed the petition. The appellant was displeased with the judgment of the lower tribunal.
He expressed his displeasure with the said judgment in his Notice and Grounds of Appeal from which he formulated the issues he has now placed before this court for determination. As required by the Rules of this court, the respondents joined issues with the appellant in their respective briefs of argument.
Incidentally, neither the respondents in this appeal [as respondents in the lower tribunal] nor the lower tribunal itself adverted to the competence of the petition. However, in his brief of argument before this court, the first respondent has raised a preliminary objection which, for the first time, seeks to interrogate the jurisdiction of the lower tribunal to hear and determine the petition, in the first place. For its bearing on the fortune of this appeal, I shall take liberty to set out the said objection:
PRELIMINARY OBJECTION
TAKE NOTICE that at or before the hearing of this appeal, the 1st Respondent shall raise a preliminary objection to the competence of this appeal in the manner appearing hereunder.
The petition, the subject of this appeal was filed outside 30 days mandatorily stipulated for the presentation of the petition.
When this matter came up for hearing, this court entreated the parties to address the issue of the lower tribunal’s competence to entertain the petition. The court’s specific entreaty was for further addresses on two issues, namely:
- Whether the provisions of sections 1 and 15 (2) (a) of the Interpretation Act and Order 23 rule 1 of the Federal High Court (Civil Procedure) Rules are applicable in the computation of time for filing an election petition under section 141 of the Electoral Act, 2006.
- Whether the decision in Yusuf v Obasanjo (2003) 16 NWLR (pt 849) 554 is binding on this court in the interpretation of section 141 of the Electoral Act, 2006.
The parties complied by filing additional briefs. We shall sum up their respective positions as expressed in the said additional briefs.
ISSUE I
Salman Jawondo, learned counsel for the appellant, marshaled reasons why the preliminary objection should be discountenanced. He reacted to the two issues separately. With regard to issue one, he anchored his disavowal of the gravamen of the objection on the applicability of sections 1 and 15(2)(a) of the Interpretation Act and Order 23 rule 1 of the Federal High Court (Civil Procedure) Rules 2000 to the interpretation of the Electoral Act 2006, including section 141 of the Act.
Learned counsel made a spirited attempt to demonstrate why both the Interpretation Act and the said provisions of the Federal High Court Rules should prevail in the interpretation of the Electoral Act. He prayed in aid several decisions and quoted copiously from the decision in Yusuf v Obasanjo (2003) 9-10 SC 53. He urged the court to dismiss the objection.
Dr. Wahab Egbewole, learned counsel for the first respondent dismantled the arguments of the appellant’s counsel. He took the view that having regard to the special pedestal on which election matters stand, time is of the essence. Thus, both the Interpretation Act and the above rules can only apply to the extent that Electoral Act permits.
He placed reliance on several decisions of this court which have explored the intention of the lawmaker in drafting section 141 of the Electoral Act. He submitted that the computation of time should commence from the date the result was declared.
Learned counsel for the second respondent, Taiye Oniyide, urged this court to uphold its previous decisions on this question, submitting that the Interpretation Act is inapplicable to the interpretation of the Electoral Act. Tunde Salako, for the third to the fifth respondents, pitched his submissions on the same grounds as canvassed by the counsel for the other respondents.
CONSIDERATION OF THE ARGUMENTS
By way of prefatory remarks I have to state that it became expedient for the court to call for additional addresses for two principal reasons. In the first place, on at least four previous occasions, this court had made pronouncements on the competence of election petitions filed outside thirty days as stipulated by section 141 of the Electoral Act 2006.
Although the first respondent predicated his challenge of the competence of the lower tribunal on the question of the said limitation of time, the preliminary objection did not adequately address the nuances of the incidental questions which this court had dealt with on those occasions.
Since, the key to the resolution of the preliminary objection was inextricably tied to those questions; this court deemed it appropriate to call for further addresses on them so that they could be resolved at once.
In any event, the rationale of all binding authorities is that it is incumbent on any court that raises an issue suo motu to hear from the parties before resolving such an issue. The cases on this point are many: so many that only a handful will be referred to here, Bhojsons Plc v Daniel-Kalio (2006) 5 NWLR (pt 973) 330; Kuti v Balogun (1978) 1 SC 53; Aermacchi S.P.A v A.I.C. Ltd (1986) 2 NWLR (Pt 23) 443; Iriri v Erhurhobara (1991) 2 NWLR (pt 173) 252; Ndiwe v Okocha (1992) 7 NWLR (pt 252) 129; Abimbola v Abasan (2001) 4 SC (pt 1) 64, 73 and 74; Ugo v Obiekwe (1989) 1 NWLR 9pt 99) S56, 581; Okafor v Nnaife (1972) 3 ECSLR 261; Oje v Babalola (1991) 4 NWLR (pt 185) 267, 280; Cookey v Fomabo (2005) 5 SC (pt 11) 102, 112.
What is more, since the preliminary objection had raised the question of the jurisdiction of the lower tribunal, this court had a duty to dispose of it. This is so for jurisdiction is the lifeblood of the adjudicatory system. Hence, whenever it is raised it is always better to attend to it with due dispatch. As I observed in my leading judgment in University of Ilorin v Oluwadare (2009) All FWLR (pt 452) 1175 at 1204:
…jurisdiction is to a court what a gate or door is to a house. That is why the question of a court’s jurisdiction is called a threshold issue: it is at the threshold [that is, at the gate] of the temple of justice [the court].
To be able to gain access to the temple [that is, the court], a prospective litigant must satisfy the gate keeper that he has a genuine cause to be allowed ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper, as vigilant as he is always, will readily intercept and query all persons who intrude in his domain.
That is why I look with askance at the approach of the lower tribunal. Although, the parties did not raise the issue of its jurisdiction, as a gate keeper it had a duty to satisfy itself that it had not been robbed of jurisdiction for any cause. Unfortunately, it failed to do so. This resulted in the dissipation of its precious time. However, unlike the lower court, this court cannot afford the luxury of dissipating precious time in this election matter knowing that election matters constitute a special class of proceedings that should be attended to with all diligence.
Above all, since the fate of the issues which the appellant formulated for the determination of this court is tied to the success or failure of the preliminary objection of the first respondent, their consideration shall abide the outcome of the objection. This is more so as the success of the preliminary objection would obviate any consideration of the said issues. Since, I am under obligation to dispose of the preliminary objection first, I shall now deal with the issues which this court raised suo motu : issues on which parties have now filed additional briefs.
As shown above, when this matter came up for hearing on March 30, 2009, this court raised two issues suo motu in connection with the preliminary objection of the first respondent. Now, I turn to the resolution of the first issue which is:
Whether the provisions of sections 1 and 15 (2) (a) of the Interpretation Act and Order 23 rule 1 of the Federal High Court (Civil Procedure) Rules are applicable in the computation of time for filing an election petition under section 141 of the Electoral Act, 2006
Only recently, I had occasion to address this question. That was in Abimbola Daramola v Aribisala And Ors [Appeal No. CA/IL/EP/REP/13/2008, delivered on May 19, 2004 per C.C. Nweze JCA].
In that case, I found that the weight of the majority of judicial opinions of this court elicited from appeals, where the main issues for determination turned squarely on the interpretation of section 141 (supra), preponderated in favour of the view that it is an autonomous or self-governing section whose provisions are clear and unambiguous. As such, it does not admit of any external aid for its interpretation.
I referred to reported and unreported decisions of this court. The reported ones include: Ekekegbo v Fibererima (supra); Ogbebor v. Danjuma (supra); Action Congress & Anor v Jang (2009) 4 NWLR (pt 1132) 475; INEC v Hashidu (2009) 4 NWLR (pt 1130) 73; Tsumba v Ityomyima (2009) 9 WRN 200; Agbai v INEC (2009) All FWLR (pt 449) 594.
The unreported decisions include: Kamalia v Sherrif & Ors [unreported Appeal No: CA/J/EP/GOV/244/2007]; Muraino Ayantola and Anor v Action Congress and Ors [Appeal No CA/IL/EP/SH/16/2008 unreported judgment delivered on July 18, 2008 per C.C. Nweze JCA]; Prince Kola Bukoye and Ors v Action Congress and Anor [unreported judgment of this court delivered on July 18, 2008, per I.I. Agube JCA] etc.
Judicial opinions of this court which have taken the contrary view are few and far-in-between: Iyirhtaro v Usoh (supra); Atikpekpe v Joe (supra); Adefemi v Abegunde (supra); PDP v Haruna (2004). These latter cases favour the application of both the Interpretation Act and the above High Court Rules.
Like in my above-cited judgment, I am still of the humble view that the autonomy of section 141 (supra) finds firm anchorage on the intendment of the law maker who designed the special enactment called the Electoral Act: an Act which brooks no dissipation of time! That explains why it erected an inexorable time frame; by calendaring the permissible period for consummating or accomplishing the process of presentation of an election petition. Thus, any petition presented outside that time frame is statute barred, Agbai v INEC (2009) All FWLR (pt 449) 594, 608-609; Balogun v Odumosu (1989) 2 NWLR (pt 582) 590,599.
One thing is implied in this intention of the lawmaker: the said time frame is sacrosanct or inviolable. Thus, any aggrieved person who intends to seek succour under its protective umbrage is under obligation to attend to the specified time frame with the finicality or fastidiousness of a stickler for time!
The consequence is that courts lack the jurisdiction to favour any indolence or breach in this regard, see, for example, paragraph 43(1) of the first schedule to the Electoral Act which subordinates the court’s power to enlarge time to section 141 (supra), Agbai v INEC (supra) 594; Balogun v Odumosu (supra); Orubu v INEC (1988) 5 NWLR (pt.94) 323; Ogu v. Ekweremadu (2006) 1 NWLR (Pt 96) 255; Obasanya v Babafemi (2000) 15 NWLR (pt. 689) 1; Aregbesola v Oyinlola (2008) All FWLR (pt 436) 2018, Chime v. Onyia (2009) 2 NWLR (Pt 1124) 1, 37-38.
These decisions rest the logic of their ratiocinations on the principal plank that since election petitions are peculiar kinds of proceedings, time is of the essence in the interpretation of the provisions of the enactment governing such proceedings, namely, the Electoral Act.
What is more, the roots of the irrefragable premise of this logic are firmly embedded in constitutional jurisprudence. In the first place, it is the Constitution, the most fundamental law in Nigeria, which originated the idea of time frames in respect of the tenure of the elective political offices to which election matters are tied. Thus, for the effectuation of this irreversible constitutional time frame, the factor of expeditious disposal of election petitions makes it imperative that time must be reckoned with.
Indeed, anything short of that may even amount to sabotage against the raison d’etre for inaugurating periodic elections into elective offices in a constitutional democracy such as ours, Maduako v Onyejiocha (2009) 5 NWLR (pt 1134) 259, 275; Khalil v Yar’ Adua (2003) 16 NWLR (pt847) 446; Amgbare v Sylva (2007) 18 NWLR (pt.1065) 1.
Somewhat propitiously, I have been opportune to ventilate my appreciation of the intendment of the drafts person’s peculiar phraseology of the syntax employed in the section. Like in the present appeal, the question of computation of time for the presentation of an election petition was directly in issue in Murano Ayantola and Anor v. Action Congress and Ors. (supra).
In that case, I took the view that only the provision of section 141 (supra) should be considered in determining the question of computation of time. I adduced five reasons why this should be so.
In the first place, the invocation of the said Federal High Court Rules is made subject to the express provisions of the Electoral Act, Okereke v Yar’Adua (2008) 6 NWLR (pt. 1082) 37, 50. Thus, it is the provision of the Act on the limitation that will be taken into account. We shall put this argument in con by reproducing the provisions of paragraph 50 of the first Schedule to the Electoral Act:
Subject to the express provision of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction and the civil procedure rules shall apply with such modification as may be necessary to render them inapplicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action. [italics supplied]
The phrase “subject to” in the chapeau or opening sentence of paragraph 50 (supra) is a drafting devise employed by legal draftsmen to indicate a limitation or qualification. In practical terms, therefore, the effect of this phrase is that it subordinates the provision of the Federal High Court Rules on the question of computation of time to the provisions of the Electoral Act. In this case, the relevant provision can be found in section 141.
Secondly, the above provision of section 141 is clear and unambiguous. It is settled that in interpreting statutes that contain lucid, precise and unambiguous provisions, no interpretative guides are required. The court has only one duty, namely, to give effect to the ordinary meaning of the words employed in the statute. I now, most respectfully, invite Kutigi JSC (as he then was) to settle this point. In A.G. Ondo State v A.G. Ekiti State (2001) 10 SCNJ at pages 117-146, His Lordship intoned very categorically:
It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions 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 the lawmakers as used…
Cases on this point are legion. They need not detain us here. In the third place, the provision of the above Federal High Court Rules is a general provision on time limitation. On the other hand, section 141 is a specific provision on the time of presenting an election petition. It has long been established, both in England and Nigeria, that in a situation such as this, the applicable rule of interpretation should be that expressed in the old Latin maxim, generalibus specialia derogant [special provisions derogate from general provisions], see, Schroder v Major (1989) 2 SCNJ 210.
Fourthly, it is obvious that the provisions of the Rules are inconsistent with the requirement of the Act. Whereas the rule excludes “the day or the date of the happening of the event”, section 141 stipulates that an election petition “shall be presented within thirty (30) days from the date the result of the election is declared”. In the face of this inconsistency, the applicable enactment should be the provisions of the Act, see per Tobi JSC in Yusuf v Obasanjo (2003) 50 WRN 1,20 line 45.
What is more, the truth is that the above provision of the Federal High Court Rules is a contingent prescription whose relevance in the computation of the time for filing election petitions must be viewed from the prism of the dynamics that dictated the elevation of election petitions to special proceedings. As Acholonu JCA (as he then was) noted in Balogun v Odumosu (1999) 2 NWLR (pt. 592) 590, 597:
The issue of time to complete filing of all processes relating to hearing and determination of an election was uppermost in the mind of the legislation. The enactment stretches itself further a field to do away with tardiness and waste of time and endeavoured to constrict the time of doing a particular act within a time-frame. In other words, it is the intention of the legislators that parties stick strictly to the times stated in the [Electoral] Decree. The court should not aid anyone who decides to sleep only to wake up when it is too late
The expressive or eloquent rationale for the rule on interpreting lucid and unambiguous words of a statute must also be noted. The explanation of the rule is simple: words and expressions employed in a statute communicate the intention of the lawmaker. So, courts are enjoined to primarily employ the expressions used in a statute in a manner consistent with their popular usage or meaning. To this end, a Judge must be meticulous about the grammar or syntax which underscores the construction of the enactment.
Let me explain. This rule is not intended to convert every Judge into a Professor Chinua Achebe or Professor Wole Soyinka. No! However, against the background of his/her rigorous training in the arcane art of legal ratiocination, and the constancy of the utilization of that training to the explication of the letters and intendment of the statute, he becomes an expert.
Above all, it is a well-known fact that words are the tools which a Judge utilizes in the application of his professional expertise. Hence, nobody can justifiably impugn his ability to construe the grammar and syntax in a statute. In effect, every Judge is an expert in the grammar and syntax of the language of statutes, See, Ugwu v Ararume (2007) 12 NWLR (Pt. 1048) 367, 438.
It is on this premise that we shall turn to the grammar and syntax of section 141 of the Electoral Act (supra). I note that against the backdrop of the dynamics that dictated the elevation of election petitions to special proceedings, the two prepositions “within” and “from” in that section were deliberately employed to indicate the express delimitation of the time frame for the presentation of election petitions.
A reference to their lexical meanings will clarify this point. The preposition “from” is defined as a function word which is used to indicate a starting point! in reckoning or in a statement of limits, Webster’s Ninth New Collegiate Dictionary page 494. The second preposition “within” is also a function word. It is used to indicate the situation or circumstance in the limits or compass of [a thing or the happening of an event] or not beyond the limitation of [time], Webster’s Ninth New Collegiate Dictionary page 1355.
Taken together, these two prepositions employed in section 141 (supra) come to this: the thirty days’ period for the presentation of an election petition begins to count from the date of the declaration of the results. Above all, the presentation can only take place during the continuance of the thirty days starting from that date election results were declared.
In addition to those five reasons which I earlier offered, there is yet another reason for sustaining the views of the majority of this court on this point. For example, under section 15(2)(a) of the Interpretation Act, where a period is reckoned from a particular event, it excludes that day on which the event occurs.
Equally, under Order 23 Rule 1(a) of the Federal High Court (Civil Procedure) Rules (supra), the limited time does not include the day of the happening of the event. Rather, it commences at the beginning of the day next following that day. Instructively, the emphases on both provisions are on the word “day”.
On the contrary, section 141 of the Electoral Act is emphatic on the “date the result of the election is declared”. As is well known, the lawmaker is not known for extravagating or wasting words. Thus, the choice of the word “date” in the Electoral Act as opposed to the word “day” which the drafters of the Interpretation Act and the above High Court Rules opted for must not be overlooked. An examination of the divergences in their lexical usages will put this point in bold relief.
The Chambers 21st Dictionary [page 340] defines the word “day” as a noun which means inter alia (1) a period of 24 hours called the solar day during which the Earth rotates once on its axis with respect to the Sun … (2) the period of time from sunrise to sunset. (3) the period of time in any 24 hours normally spent doing something, especially working.
The same Dictionary [page 339] defines the word “date” as a noun which means the day of the month and/or the year, recorded by a number or series of numbers. What this comes to is that whereas the word “date” refers to a specific day of either a month or a year, the word “day” represents duration in time and space within twenty four hours!
There is yet another reason which the appellant’s counsel did not factor into his submissions. Although he cited section 1 of the Interpretation Act, it would appear that he did not pay due attention to the grammar and syntax of the provision. It provides inter alia:
This Act shall apply to the provisions of every enactment except in so far as the contrary intention appears in this Act or the enactment in question [italics for emphasis]
Now, the preposition “except” in the above section [from the roots excipere- exceptus-] is a word of exclusion: it actually means “with the exclusion or exception of’. In effect, section 1 of the Interpretation Act (supra) embodies an exclusionary clause. By this exclusionary clause, the draftsman simply put it beyond any doubt that the Interpretation Act would be inapplicable to all other enactments of the National Assembly which evince intentions contrary to the Act. Put differently, the Interpretation Act excludes other enactments which evince contrary intentions from its ambit and application.
The question now is: how do we set this exclusionary provision in the con of the Electoral Act? In my humble view, the answer is not far-fetched. The rationale of all binding authorities is that mutually-related provisions of an enactment must be conflated for a proper appreciation of the intendment of the draftsperson, that is, courts are enjoined to read all sections of an enactment holistically to be able to decipher its intendment, Adeleke and Ors v Oyo State House of Assembly and Ors (2006) 16 NWLR (pt 1006) 608; Tukur v Govt of Gongola State (1989) 4 NWLR (pt 91) 517, 579.
Quite apart from the insights gained from our analysis of the syntax and grammar in section 141 of the Electoral Act above, a conflation of other mutually related provisions of the Act [that is, the Electoral Act] will reveal that it evinces a contrary intention to both the Interpretation Act and the above High Court Rules.
A clear demonstration of the fact that proceedings under the Act are on a special class of their own can be seen from the emphasis on the expeditious disposal of matters in the tribunals, see, for example, paragraph 25(2) of the first Schedule to the Act which permits hearing to be “continued on a Sunday or on a public Holiday if circumstances dictate”.
Indeed, because of this peculiar nature of election petitions, the Act prohibits indefinite adjournments or adjournments sine die by virtue of paragraph 25(1) of the said first Schedule [Electoral Act]. If any further evidence is required in proof of the assertion that proceedings under the Act are sui generis, reference will be made to section 148 of the Act which provides:
Without prejudice to the provisions of section 294(1) of the constitution of the Federal Republic of Nigeria 1999, an election petition and an appeal arising there from under this Act shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or Court [italics supplied].
All these provisions point to the intention of the draftsperson in elevating election matters into special proceedings. In other words, they point to the fact that the Electoral Act evinces a contrary intention to the Interpretation Act.
Having said all these, we now come to the factual situation presented at the lower tribunal. It is common ground that the said election results were declared on April 15, 2007. In paragraph 9 of the Amended Petition, the appellant [as petitioner] pleaded thus:
Your petitioner avers that at the end of the election and in the later part of the 15th April, 2007 the 5th respondent announced the result of the election and wrongly and unlawfully returned the 1st respondent as the elected member of Kwara State House of Assembly having purportedly scored him 30,455 votes as against the petitioner and other co-contestants who have no result at all.
This averment prompted Dr Egbewole’s appellant’s petition which was filed on submission that the May 15, 2007 was incompetent and statute-barred since it was filed out of time. He took the view that an appeal predicated on an incompetent petition is also incompetent.
There is considerable merit in this contention. From all I have said above, the petition should have been presented within thirty days counting from April 15, then from paragraph 9 (supra), the results were declared. I agree with Dr. Egbewole that what was presented before the lower tribunal was an incompetent petition since it was filed outside the thirty days allowed by section 141 (supra). I, therefore, resolve this issue against the appellant.
ISSUE 2
Whether the decision in Yusuf v Obasanjo (2003) 16 NWLR (pt 849) 554 is binding on this court in the interpretation of section 141 of the Electoral Act, 2006
On this issue, Salman Jawando, for the appellant, returned an affirmative answer. He referred to the various dicta of the eminent Justices of the Supreme Court in that case and concluded that those dicta were binding on this court in the interpretation of section 141(supra).
In support of his contention, he cited several authorities on what constitute the rationes decidendi and obiter dicta, citing Omega Bank Plc v Government of Ekiti State (2007) All FWLR (pt 386) 658, 687-688; Anthony v Surveyor General of Ogun State (2007) All FWLR (pt 354) 375, 388; Dairo v UBN (2007) All FWLR (pt 392) 1846 etc. He prayed the court to resolve this issue in favour of the appellant.
Dr. Egbewole, for the first respondent, first took the court on a jurisprudential excursion on the rationale for the doctrine of judicial precedent, citing Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (pt 109) 250, 275; Fawehinmi v. NBA and Ors (No 2) (1989) 2 NWLR (pt 105) 558, 650; Clement v. Iwuanyanwu (1989) 3 NWLR (pt 107) 39, 54; Ekperokun v UNILAG (1986) 4 NWLR (pt 34) 162,193.
The erudite advocate contended that not all the opinions in a case constitute the ratio decidendi of the case but rather the main issues determined by the court, UBA v GMBH and Co (1986) 3 NWLR (pt 110) 374,402; Bello v Udoye (2004) 19 WRN 5; Saude v Abdullahi (1989) 4 NWLR (pt 116) 387, 419; Dairo v UBN Plc (2007) 16 NWLR (pt 1059) 113; Oni v Fayemi (2008) 8 NWLR (pt 1089) 400, 427-429; Suleiman v C.O.P. Plateau State (2008) 8 NWLR (pt 1089) 298, 330; Buhari v Obasanjo (2004) 1 EPR 160, 181.
Against this background he took the view that the ratio decidendi in Yusuf v Obasanjo (supra) must be confined to the interpretation of paragraph 14 of the First Schedule to the Electoral Act, 2002. He prayed in aid several decisions of this court on this point.
Taiye Oniyide, for the second respondent, was categorical in his submission that the circumstances surrounding Yusuf v Obasanjo (supra) are different from the circumstances of this appeal. In his view, unlike that case, the first respondent’s objection is not premised on an application for amendment. Rather, it is to the effect that the petition, the subject of this appeal, was filed outside the thirty days stipulated in the Electoral Act. He observed that the said petition was filed on May 15, 2007 whereas, by paragraph 9 of the petition, the result was said to have been declared on April 15, 2007.
Learned counsel argued that the issue of the computation of time for the presentation of an election petition under section 132 of the Electoral Act, 2002, did not form part of the questions raised by the parties before the Supreme Court, hence the said case has no binding effect on this court, citing Ukachukwu v UBA (No 2) (2005) 9 NWLR (pt 930) 571, 396.
Expectedly, Tunde Salako, for the third to the fifth respondents, aligned his submissions with those of the other respondents. Like the others had argued, he, too, maintained that the issue of computation of time for the presentation of election petitions did not form part of the ratio decidendi in Yusuf v Obasanjo (supra). He urged the court to resolve this issue against the appellant.
CONSIDERATION OF THE ARGUMENTS
Only recently, this division of the court was saddled with the task of determining what the ratio decidendi in Yusuf v. Obasanjo (supra) could be said to be. That was in Kupolati and Anor v. Oke and Ors. (Appeal No. CA/IL/EP/HA/12/2008, unreported judgment delivered on April 3, 2009).
In this appeal, it has become imperative to determine the same question. Just as in the earlier case, the question is whether the decision in the said Yusuf v. Obasanjo (supra) is binding on the question of computation of time under section 141 of the Electoral Act.
In concurrence with my learned brother Agube JCA, who wrote the leading judgment in the above appeal, I answered the question in the affirmative. I have no reason, in the present appeal, to depart from the eloquent reasoning of my noble Lord in that case. I, equally, have no justifiable reason for modifying my concurrence in that case,. I shall adopt my position in that contribution as my judgment in this issue.
This issue, as I noted in Kupolati and Anor v. Oke and Ors (supra), pokes into an aspect of a long-drawn debate in the epistemology of Jurisprudence and Legal Theory. The said debate in the literature of Jurisprudence orbits around the search for the meaning of ratio decidendi.
Somewhat, beneficially, the search has produced very robust and engaging disquisitions which are remarkable not only for the acuity of their premises and rigour of their logic, but also for the allurement of their syllogisms: Paton and Sawyer, “Ratio Decidendi and Obiter Dictum in Appellate Courts” (1947) 63 LQR 461, 481; Goodhart, Essays in Jurisprudence and the Common Law chapter 1; Glanville Williams, Learning the Law 71; Dias and Hughes, Jurisprudence 74; Lord Lloyd of Hampstead, Introduction to Jurisprudence 375; C. K. Allen, Law in the Making (seventh edition) 259-260; Hood Phillips, A First Book of English Law (sixth edition) 202-203; Salmond, Jurisprudence 223, cited in P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd, 984) 208; Rupert Cross, “The Ratio” in 20 MLR 124-126; A.G. Karibi-Whyte, “The Tyranny of Judicial Precedents”, in (1990) Vol.3 No.1 Cal. LJ; Odiase v Agho (1972) 1 All NLR 170, 176; Savanah Bank of Nigeria Ltd v P.A.S.TA. Ltd (1987 1 SC 198; 278-279; N.A.B Ltd v B. Eng (Nig) Ltd (1995) 8 MW;R (Pt 413)” .
Although that should not delay us here, it is clear from the approach of the Supreme Court to the meaning of ratio decidendi that Professor A. V. Dicey could not have been correct when he classified Jurisprudence as “a word which stinks in the nostrils of a practicing barrister” see, Curzon, Jurisprudence, (London: Macdonald and Evans, 1979) 13.
As the effervescent question thrown up in the appellant’s second issue has demonstrated, jurisprudence is not as abstruse as it is often presented. Surely, it is a living subject which permeates the entire gamut of our corpus juris and actually shapes, and will continue to shape, legal reasoning in Nigeria.
Against this background, I take the humble view that to be able to ascertain the ratio decidendi in Yusuf v Obasanjo, it may not be out of place to first explore its meaning.
Now, the term ratio decidendi [plural: rationes decidendi] has not lent itself to a satisfactory definition, C.K. Allen, Law in the Making (supra) 259-260. It is not surprising, therefore, that the definitions proffered by Professors Hood Phillips and Karl Llewellyn have been subjected to scathing strictures. For Hood Phillips, “ratio is the reason for the decision or the principle of law on which the decision was based”, see, Hood Phillips, A First Book of English Law (supra) 202-203.
Professor Karl Llewellyn argues that ratio decidendi is ”prima facie the rule of the case, since it is the ground upon which the court chose to rest its decision”, quoted in P.U. Umoh, Precedent in Nigerian Courts (supra) 207.
Professor Goodhart has punctured these definitions. In his Essays in Jurisprudence and the Common Law (supra), the distinguished jurisprudent contended that the ratio decidendi is neither the reason for the decision nor the principle of the law in the judgment.
Ironically, Goodhart’s definition of the term, which Professor Glanville Williams adapted, has received further qualification. Professor Glanville Williams, adapting Goodhart’s definition had presented the matter thus: “the ratio decidendi of a case can be defined as the material facts of the case plus the decision thereon”, Glanville Williams, Learning the Law (supra) 71, cited in P. U. Umoh, Precedent in Nigerian Courts (supra) 207. In their authoritative work, Jurisprudence, (supra) page 74, Dias and Hughes pointed out that:
Goodhart’s theory implies that it is the deciding Judge who decides what are the material facts and that these can be discovered by a perusal of the judgment.
Lord Lloyd of Hampstead aligns himself with this observation of the erudite jurisprudents, Lloyd, Introduction to Jurisprudence (supra) page 375.
This may well be so! Ho ever, I must hasten to observe that the above criticisms have no utilitarian value for us in Nigeria since we are bound by the approach adopted by the Supreme Court to this question. That approach would appear to be a blending of the views of Hood Phillips and the definition of Goodhart, as adapted by Glanville Williams.
Karibi-Whyte JSC in Savannah Bank of Nigeria Ltd. v. P.A.S.T.A. Ltd (1987) 1 SC 198, 278-279, for example, offered the following invaluable guides:
In determining the ratio decidendi of a case, it is safer to consider the claim before the court and the issue which the court was called upon to decide. Thus, the reasons given by the court for deciding the claim before it is the ratio decidendi which the court is obliged to follow in subsequent cases and will not lightly depart from unless to avoid the perpetuation of errors. ….Accordingly, opinions in the judgment which are not part of the material facts even where relevant to the determination of the case do not constitute part of the ratio decidendi and are not binding … [italics for emphasis]
As noted earlier, for Professor Hood Phillips, “ratio is the reason for the decision or the principle of law on which the decision was based”. In N.A.B Ltd v B. Eng (Nig) Ltd (1995) 8 NWLR (Pt 413), the Supreme Court endorsed the definition when it held that: “It is the principle of law upon which a particular case is decided that is binding. And the principle is called the ratio decidendi …”
The key to the resolution of the question under consideration now must, therefore, be located in the con of the above guidelines. In the Savannah Bank case (supra), for example, Karibi-Whyte JSC enjoined us to “consider the claim before the court and the issue which the court was called upon to decide”.
So, what was the issue in Yusuf v Obasanjo? In the Law Reports [(2003) 16 1 NWLR (pt 847) at page 596 paragraph D; (2003) 50 WRN 1, 15 paragraph 5], Tobi JSC delineated the contours of the issues in that case thus: “It appears to me that all the issues formulated by the parties are basically the same as they zero on the amendments sought by the appellants and the subsequent decision of the tribunal”. (italics supplied).
To put the issue before the court beyond any doubt, the erudite and cerebral Justice of the Supreme Court, indeed, adopted the pedagogical approach of a practiced and veteran tender [in passing, I must note that His Lordship distinguished himself in this regard as he took a professorial chair in Law]. Hear him:
The cynosure of this appeal is paragraph 14 of the first schedule to the Electoral Act, 2002. It is the first line. It is also the bottom line. The appeal clearly zeros on the construction this Court will place on it in view of the centrality and importance of the paragraph, [italics supplied] [pages 605- 606]
His Lordship’s choice of the word “cynosure” is instructive. The New Webster’s Dictionary of the English Language (International Edition) (New York: Lexicon International Publishers Guild Group, 1995) 239 defines the word to mean “a strong centre of interest and attention”
It was as if the learned Law Lord anticipated the divergent interpretations which His leading judgment and the erudite contributions of his eminently distinguished brethren in Yusuf v Obasanjo would elicit subsequently. That probably dictated his choice of the word “cynosure” to demonstrate that the question of the interpretation of paragraph 14 of the first Schedule to the Electoral Act 2002 was the centre of interest and attention of the Supreme Court in that case.
Put simply, therefore, the pivot of the matter before the court was the issue of limitation of time for amendment of election petitions [as contained in the First Schedule to the Electoral Act, 2002, paragraph 14(1) and (2), in pari material with paragraph 14(1) and (2) of the First Schedule to the Electoral Act, 2006].
In effect, in ascertaining the ratio decidendi in Yusuf v Obasanjo (supra), the search must be delimited to that issue upon which Tobi JSC resolved the appeal.
Before then, however, one other point must be addressed. I shall, most respectfully, invite Wali JSC to take the point. In Idise and Ors. v. Williams International Ltd (1995) 1 NWLR (pt 370) 142, 150. His Lordship explained that:
Issues for determination based on a ground of appeal from a concurring judgment which is different from the leading judgment can only be obiter dicta [a] concurring judgment … which differs from the lead judgment [amounts] to obiter dicta [and] are not valid …
In Abacha and Ors v Fawehinmi (2000) All NLR 351, Achike JSC, in obvious elaboration of the above terse statement of the law, posed the question: “One may then ask: what is the judgment of the court?” The distinguished Justice of the Supreme Court answered the question thus:
Where a single Judge presides, the situation does not admit of any difficulty; the judgment of that court is what may be discerned as the ratio decidendi or rationes decidendi of that case in contrast to the passing remarks, otherwise referred to as obiter dictum or obiter dicta made by the court in the course of preparing the judgment.
His Lordship continued:
The problem… arises when three Justices … or five Justices … preside over a case or an appeal wherein one of the Justices is assigned the responsibility to write the leading judgment and others, under the mandatory provision of the Constitution, are obliged to render either their concurring or dissenting judgments. In such a situation, it is the leading judgment that is, in legal circles, regarded as the judgment of the court.
The point of jurisprudential interest and of considerable interest in this appeal is the relationship of the bindingness of the ratio decidendi or rationes decidendi contained in the leading judgment on the one hand, and the other concurring judgments, on the other hand. Are they at par or are some superior to others?
The jurisprudence and practice of law in this country appears to be tolerably clear: it is the ratio or the rationes contained in the leading judgment that constitutes or constitute the authority for which the case stands. All other expressions contained in the concurring judgments, particularly those not addressed in the leading judgment are obiter dictum or dicta. [italics supplied]
Although Achike JSC made his postulation in his dissenting judgment in the above case, His Lordship’s opinion represents the correct position of the Law in Nigeria for as Karibi-Whyte JSC held in Savannah Bank (supra) at pages 278-279: “opinions in the judgment which are not part of the material facts even where relevant to the determination of the case do not constitute part of the ratio decidendi and are not binding..”
The position, therefore, is that it is the judgment of Tobi JSC on the pivotal issue of limitation of time for amendment of election petitions [as contained in the First Schedule to the Electoral Act, 2002] that constitutes the judgment of the Supreme Court in Yusuf v Obasanjo (supra).
His said leading judgment spans pages 12-37 [2003] 50 WRN]. His Lordship made reference to the issue of “presentation” in three places only, namely, pages 23; 25 and 26. Yet, all the three references were tied to the interpretation of paragraph 14 (2).
An intimate reading of those pages will reveal that His Lordship was not concerned with the question of the commencement date relevant for the determination of the limitation period for the presentation of an election petition.
Indeed, he could not have been concerned with that question since he had observed that: “all the issues formulated by the parties are basically the same as they zero on the amendments sought by the appellants and the subsequent decision of the tribunal” [2003 50 WRN at 15].
We now invite attention to the relevant pages to demonstrate how His Lordship resolved the issue which he aptly described as the “cynosure of the appeal”. At page 23, Tobi JSC said:
The most important provision for the purpose of this appeal is paragraph 14(2). The sub-paragraph makes a cross reference to a non-existent section 154. It is non-existent because the Act stops at section 153. The lower court rightly held that section 154 referred to in paragraph 14(2) should read section 132 as it that section that provides for time within which an election petition shall be presented. [italics supplied]
Having identified the embarrassing lacuna in paragraph 14(2) which made a cross-reference to a non-existent section 154, he reasoned that only recourse to section 132 could make up the hiatus in the said paragraph [that is, 14(2). That was how section 132 came to feature in the judgment. He presented it thus:
The courts should have found themselves in a helpless or hopeless situation if there was no section 132 to bail them out in the interpretation of paragraph 14(2)…..A joint interpretation of paragraph 14 (2) of the first Schedule ( ) and section 132 thereof, places restrictions on the part of a petitioner in the amendment of his petition…. The meat of it all is that substantial amendments will not be allowed, after the expiration of the period of thirty days, following the presentation of the petition. [italics supplied, see 2003 WRN at page 24]
After making up this lacuna in paragraph 14 (2) by reading the said paragraph in conjunction with section 132, His Lordship was then in a position to tackle the issue of the limitation period for the amendment of petitions. He declared:
The result of the election was declared on 22nd April, 2003. The election petition was filed on 2nd May, 2003 and the motion for amendment of the petition was filed on 21st May, 2003… Reducing that arithmetical detail, since the result of the election was declared on 22nd April and the motion for amendment was filed on 21st May, 2003, the motion for amendment was presented within thirty days from the date of declaration of the election [italics supplied]
Finally, at page 26, His Lordship made reference to the words “filed” and “presented” against the background of the comparative provisions in paragraph 14(2) dealing with amendments read in conjunction with section 132 which he graciously read into the paragraph:
Section 132 uses the word ‘presented’. In my humble view, the word in the con means ‘filed’. Paragraph 14(2) (a) uses the same word, but in the continuous sense of ‘presenting’. In other words, section 132 provides that an election petition under the Act shall be filed within thirty days from the date the result of the result of the election is declared. Similar interpretation arises in respect of the ‘presenting’ in paragraph 14(2)(a) of the first Schedule to the Act.
I have deliberately undertaken this extensive analysis of the approach of His Lordship Tobi JSC in the leading judgment in the said case to underscore the importance of the issue he addressed in the judgment, namely, the issue of the limitation period for the amendment of petitions in paragraph 14(2)(a) which he graphically described not only as “the cynosure of the appeal”, but also as the “first line … and the bottom line” [2003 50 WRN page 22].
Kutigi JSC (as he then was) also circumscribed his contribution to this narrow issue of the limitation of time for amendment. At page 38 [2003 50 WRN], he agreed:
… with the tribunal that Section 132 read with paragraph 14(2) of the first schedule to the Act means that substantial amendments will not be allowed after the expiration of the period of thirty (30) days from the date the result of the election is declared. But I have stated above that both the petition and the motion to amend the petition were filed within time [italics mine).
Kastina-Alu JSC, also confined himself to the issue of the time for bringing an application for amendment by virtue of paragraph 14(2) [2003 50 WRN at 42]. Interestingly, Uwaifo JSC acknowledged that section 132 was cited in connection with the question of the main issue of amendment. At page 46, His Lordship observed that:
The court below was duly addressed … on section 132 of the Act and paragraph 14(2) of the first schedule thereto in connection with the amendment made. [italics supplied].
Still on the same page 46, His Lordship, after citing section 22 of the Supreme Court Act which vests the court with jurisdiction to make orders and take decisions in appropriate circumstances, explained that it was in the light of the said section that the court:
… decided to resolve the issue [of joinder] and also to consider what aspect of the amendments sought ought to be allowed in view of the decision reached on the meaning of paragraph 14(2) [supra] [italics supplied].
Admittedly, His Lordship made pronouncements on the question of computation of time, [pages 43-44]. However, this must not be taken outside the canvass of the main issue the court was called upon to consider, that is, the issue of limitation of time for amendment. To show that His Lordship’s reference to the question of computation of time stipulated in section 132 was tied to the issue of the limitation of time for amendment before the court, we show quote him in extenso:
I have already stated that the necessary papers containing the amendments made to the petition were before the tribunal within the 30 days’ time limited by section 132 of the Act for presenting an election petition. What then does paragraph 14(2)(a) [supra] connote?..
It seems to me necessary that in the construction of [the said paragraph), the question should be asked: who is it that is expected to make an amendment to an election petition? I think it is the person who presented the election petition, i.e. the petitioner. He makes the amendment by introducing all facts or alterations he considers proper or necessary. He does so by indicating this in the court process which he files in court for the purpose of the amendment he has made.
All that the said paragraph 14(2)(a) requires him is to do so, that is to say, make the amendment within the time limited by section 132 of the Act for presenting an election petition. It is the court or tribunal that makes the amendment. Its function is to consider the amendment made within time to the petition. In the course of doing so, it is up to the tribunal to grant or refuse the amendment so made by the petitioner. That is when it brings to bear on the motion its judicial power to consider the merits of the amendment [page 45 italics supplied]
Edozie JSC’s contribution also points to the fact that the court was, indeed, only confronted with the issue of amendment. He introduced his contribution thus:
This is an interlocutory appeal….in respect of an application on notice by the petitioners for the amendment of their presidential election petition [page 47 italics supplied]
Like the leading judgment, His Lordship considered the lone issue in the appellants’ brief “adequate for the determination of the appeal”. He continued: “it seems to me that the main grouse of the appellants is the refusal of the lower court to grant the amendment … ” [italics supplied page 48].
True, indeed, his reference to section 132 was in relation to the lacuna in paragraph 14(2) which made a cross reference to a non-existent section 154 [page 50]. What is more, the isolated statement he made on computation of time in the said section 132 was still in relation to the main issue of the limitation of time for amendment.
After reckoning the thirty days’ limitation period stipulated in section 132, Edozie JSC located the said limitation period in the con of the issue of amendment:
It follows that the motion for amendment filed on 21st April, 2003 was within the stipulated period. Had the motion been taken and considered on the date it was filed … the reason given by the court below for refusal to consider the amendment for joinder could not have arisen. Since the appellants filed their application for amendment within time, they ought not to be penalized for the hearing of the application outside the 30 days period, a matter which is entirely at the discretion of the court. I am, therefore of the view that the court below was in error to have refused to consider on its merits the appellants’ amendment for joinder. ..on the ground that it was substantial and was caught by the limitation period.
With profound respect, therefore, to Salman Jawondo, the learned counsel for the appellant, he read the expositions of Uwaifo and Edozie JJSC on section 132 [in pari materia with section 141 of the Electoral Act, 2006] out of the con in which their Lordships made their illuminating contributions to the narrow issue of the limitation of time for amendment in paragraph 14(2)(a) supplemented with section 132 which was addressed in Tobi JSC’s judgment.
In any event, as already noted above, the law is as stated by Wali JSC (supra) to the effect that “a concurring judgment… which differs from the lead judgment … [amounts] to obiter dicta [and] are not valid”. Karibi-Whyte JSC in Savannah Bank (supra) at pages 278-279 also noted that: “opinions in the judgment which are not part of the material facts even where relevant to the determination of the case do not constitute part of the ratio decidendi and are not binding … ”
In all, since Tobi JSC’s judgment was concerned only with the issue of the limitation of time for amendments, the decision in the case [that is, Yusuf v Obasanjo] cannot be an authority for the interpretation of section 141 supra. After all, the ratio decidendi of cases eventuates from their material facts.
In the words of Tobi JSC in Onyia v State (2009) All FWLR (Pt 450) 625, 640: “cases are decided on their fact and ratio decidendi is based on the facts of the case before the court. A ratio cannot be determined outside the facts of the case”.
I, equally, resolve this issue against the appellant. Accordingly, I uphold the preliminary objection of the first respondent herein. That, equally, resolves the only live issue in this appeal.
In effect, the success of the preliminary objection obviates the need for the consideration of the issues which the appellant initially formulated for the consideration of this court and on which other respondents had joined issues with him. In effect, those issues have become otiose, or, at best, hypothetical, Reider-Jacks v INEC (2009) All FWLR (pt.464) 1636, 1642.
This is so for it has long been settled that where a preliminary objection succeeds and is upheld by the court, it brings the proceedings in which it was raised to an end as there would no longer be any other competent live issue in the case, Kotoye v Saraki (1991) 8 NWLR (pt 211) 638; Goji v Ewete (2001) 15 NWLR (pt 736) 273; Odu v Agbor-Hemeson (2003) 1 NWLR (pt 802) 624; Ngige v Obi (2006) All FWLR (pt 330) 1041; (2006) 14 NWLR (pt 9990 1; Onyemeh v. Egbuchulam (1996) 5 NWLR (pt 448) 225; NEPA v Ango (2001) 15 NWLR (pt 737) 627; Reider-Jacks v. INEC (2009) All FWLR (pt 464) 1636, 1642.
Accordingly, I hereby strike out this appeal since it emanated from an incompetent petition which the lower tribunal had no jurisdiction to hear.
Appeal is hereby struck out.
Other Citations: (2009)LCN/3307(CA)
