THE ELECTORAL OFFICER BICHI FEDERAL CONSTITUENCY & ORS V. RTD. CAPTAIN AHMED HALADU BICHI & ORS (2010)

THE ELECTORAL OFFICER BICHI FEDERAL CONSTITUENCY & ORS V. RTD. CAPTAIN AHMED HALADU BICHI & ORS

(2010)LCN/3568(CA)

In The Court of Appeal of Nigeria

On Thursday, the 11th day of February, 2010

CA/K/EP/NA/14/2008

RATIO

PROCEDURE: AT WHAT STAGE CAN THE ISSUE OF JURISDICTION BE RAISED IN A PROCEEDING

The law is elementary that the issue questioning the jurisdiction of a court or tribunal can be raised at any stage of proceedings in a matter by either the parties or the court. It is therefore never too late in law to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration. MAGAJI V. MATARI (2000) 8 NWLR (PT.670) 722 at 735, AKEGBE V. ATAGA (1998) 1 NWLR (PT.534) 459 at 465, STATE V. ONAGORUWA (1992) 2 SCNJ 1, A.G, LAGOS V. DOSUNMU (1989) 3 NWLR (PT.111) 552. PER MOHAMMED LAWAL GARBA, J.C.A

PROCEDURE: WHEN SHOULD THE ISSUE OF JURISDICTION BE DETERMINED IN THE PROCEEDINGS

APPEAL: WHAT ARE APPEALS DETERMINED ON

it would be remembered that because appeals are determined on the record of appeal compiled and transmitted by the Lower court or tribunal to this court, both the court and the parties are bound by the record of the appeal transmitted by the Lower tribunal in respect of this appeal. LARMIE V. D.P.MS. LTD (2005) 12 SC (PT.I) 93, VEEPEE INDUSTRIES V. COCOA INDUSTRIES (2008) 13 NWLR (PT.1105) 486 at 512. In the determination of an appeal therefore, the parties and the court are entitled to refer to make use of and rely on any relevant page, portion, part or documents forming part of or included in the record of the appeal. PER MOHAMMED LAWAL GARBA, J.C.A

EVIDENCE: WHETHER INADMISSIBLE DOCUMENT CAN BE RELIED ON AS EVIDENCE

Learned counsel is also correct in law when he said that documents can only be relied on in the determination of a matter if they were admitted in evidence. Where documents were not tendered at all or tendered but rejected, they do not become evidence which can properly be relied on in decision of a matter either at trial or on appeal even if included in the record of an appeal. NGIGE V. OBI (2006) ALL FWLR (PT.330) 1041. PER MOHAMMED LAWAL GARBA, J.C.A

JUSTICES

MOHAMMED L. GARBA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

THERESA N. ORJI – ABADUA Justice of The Court of Appeal of Nigeria

Between

1. THE ELECTORAL OFFICER,
BICHI FEDERAL CONSTITUENCY
2. THE RESIDENT ELECTORAL
COMMISSIONER FOR KANO STATE
3. THE INDEPENDENT NATIONAL
ELECTORAL COMMISSION Appellant(s)

AND

1. RTD. CAPTAIN AHMED HALADU BICHI
2. THE PEOPLES DEMOCRATIC PARTY
3. ALHAJI IBRAHIM MUAZZAM Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment): This appeal is from the decision of the National Assembly Elections Tribunal (to be named Lower Tribunal after now) sitting at Kano, Kano State delivered on the 15/1/2008 in an election petition No. EP/KNS/HR/29/2007.
The petition filed by the 1st and 2nd Respondents questioned the declaration and return of the 3rd Respondent as the winner of the election conducted by the Appellants for a seat in the Bichi Federal Constituency for the House of Representatives. In its decision, the Lower tribunal upheld the position of the 1st and 2nd Respondents that the 3rd Respondent did not score a majority of lawful votes cast at the election and that the 1st Respondent scored the majority of the valid votes cast. The 1st Respondent was consequently declared and returned by the Lower tribunal as the winner of election in question.
Being aggrieved by that decision, the Appellants filed a Notice of Appeal against same.
In line with the practice in the court, briefs of argument were filed by learned counsel for the respective parties in which issues for determination were raised. The briefs were adopted and relied on by the learned counsel as their submissions in support of their respective positions in the appeal at the oral hearing on the 7/10/09 and judgment was reserved for delivery on the 10/12/09. However in the course of preparing the judgment, we observed that there was the need to invite learned counsel for the parties to address the court on the competence of the petition filed before the Lower tribunal and so the invitation was extended to learned counsel for the address on the 10/12/09. The issue to be addressed by learned counsel was whether in view of the fact on the record that the result of the election in question was declared on the 21/4/07, the petition filed on the 21/5/07 was presented within the thirty (30) days period prescribed by Section 141 of the Electoral Act, 2006.
The issue was raised suo motu by the court as it relates or touches on the competence of the petition and thereby involving a question as to the jurisdiction of the Lower tribunal to entertain it.

The law is also settled that once the issue of jurisdiction arises or is raised, it should be considered and determined first in the proceedings before further steps are taken therein in order to avoid what might eventually turn out to be an exercise in futility if jurisdiction was absent. ONYEMA V. OPUTA (1987) 6 &CNJ 176, OKONKWO V, INEC (2006) 2 EPR, 94, OKOH UBI (2006) ALL FWLR (PT.328) 717.
An issue such as the one raised by the court on whether an action or a petition was filed or presented within the period limited by law is one which goes to the jurisdiction of the trial court or tribunal as the case may be. ARABELLA V. N.A.I.C. (2008) 32 WRN 1 at 26, EMIATOR V. N.A. (1999) 9 SCN3 52, (1999) 12 NWLR (PT.631) 363 at 372.

In the above premises, I intend to determine the issue first before dealing with the issues raised in the appeal, if necessary.
The submissions of the learned counsel for the Appellants, Mr. N.H. Auta on the issue are to the effect that since the result of the election was declare on 21/4/07, the petition filed on the 21/5/07 was presented on the 31st day thereafter and therefore outside the period of thirty (30) days limited by Section 141 of the Electoral Act 2006. He said the petition was in the circumstance, statute barred and the Lower tribunal had no jurisdiction to entertain it, relying on the decision in appeal No. CA/A/EP/317/07 and CA/A/EP/232/2008 delivered on 19/2/2009 (yet to be reported). We are urged by him to so hold and strike out the petition.
Mr. Nuraini Jimoh, the learned counsel for the 3rd Respondent addressed us next on the issue because the 3rd Respondent and Appellants were, all Respondents to the petition at the Lower tribunal and so have a common position on the issue which should be addressed for the 1st and 2nd Respondents to respond fully to the points raised therein.
The submissions by Mr. Jimoh were similar to that of learned counsel for the Appellants that the petition was filed outside the 30 days prescribed by Section 141 of the Electoral Act, 2006. According to him, all the results of the election tendered in evidence show that the results were declared on the 21/4/07 and specifically made reference to pages 63 – 69, 126 – 9, 148 – 150, 166 – 185, 188 – 195, 202, 209, 237 – 8, 272, 318 of Vol.1 and all the pages after page 617 of the Vol.2 of the printed record of the appeal to support the position. Furthermore, he said the petition did not challenge or raise the issue of the date of the declaration of the election result and so there are no pleadings that the result was declared on any other date. In addition, learned counsel referred to paragraph 5 of the 1st Respondent’s Reply to the petition, the statements on oath of Haruna Mato and Hashim Saleh Yar alamun at page 61 of Vol.1 of the record of appeal which he said was not challenged and which show that the result of the election was declared on the 21/4/07 as affirmed by the Lower tribunal at pp.339 of the record of appeal. It was the submission of the learned counsel that there was no appeal against the finding by the Lower tribunal. He then contended that the 30 days limited by Section 141 of the Electoral Act for the presentation of the petition lapsed on the 20/5/07 since the time started to run on the 21/4/07 when the result was declared. Learned counsel maintained that the petition was statute barred and relied specifically on cases No. 9, 10, 11, 18 – 23 on the list of authorities he filed on the 9/12/09. He said the fact that the last of the 30 days was a Sunday is not material because the day is not a public holiday under the Public Holidays Act, Cap.40 Laws of the Federation of Nigeria and that election petition being sisi generis under paragraph 25(2) of the 1st Schedule to the Electoral Act, Sunday and every public holiday is a working day. Cases No.3, 4 and 25 on the list of authorities were referred to and it was argued by learned counsel that the evidence of PW1 at page 444 of the record of appeal to the effect that the collation and declaration of the winner was on 22/4/07 is not supported by any pleadings and so goes to no issue. That the evidence cannot override the finding by the Lower tribunal and the results tendered in evidence to the effect that the result was declared on the 21/4/07. Finally cases No. 26 and 27 on the list of authorities were cited by learned counsel who urged us to strike out the petition for being statute barred. Mr. O.E.B. Offiong, the learned counsel who addressed the court on the issue for the 1st and 2nd Respondents said in his address that the main issues to be determined is/are (1) whether the petition was filed within the 30 days limited by Section 141 of the Electoral Act and (2) whether the National assembly intend to change the principle of law that stipulating that when the last day for the doing of an act under a statute falls on a Sunday or other non dies day, the act can be done on the next day when the offices of the court would open. He submitted that there are two (2) ways of proving the declaration of result of election, (1) that the question of the date of the declaration of the result is a matter of evidence adduced. The case of ANPP V. INEC (2004) 7 NWLR (PT.871) 16 at 51 paragraph C – F was cited on the point. Also that documentary evidence cannot be relied on unless it was tendered and admitted in evidence in the proceedings and reliance was placed on AGIBI V. ORIBE (2005) 8 NWLR (PT.926) 40 at 139-40 and SAMBO V. THE STATE (1993) 6 NWLR (PT300) 399 at 418. It was then contended that there was no evidence that the result of the election was declared on 21/4/07 because all the documents referred to by the learned counsel for the 3rd Respondent were not tendered and admitted in evidence in the proceedings.
Learned counsel said that the declaration of result FORM EC 8 E2 was never tendered and admitted in evidence and only appeared as an Exhibit attached to applications by the 3rd Respondent dated 24/8/07 at pp.315-18 of the record of appeal and dated 3/9/07 at pp.367-75 of the record. He also referred to pp.442, 446 – 449 and 451-3 of the record of appeal at which he said the documents admitted in evidence appear. According to him, the evidence at pp.444 given in answer to a question by the Appellants, is the only evidence adduced to the effect that the winner of the election was declared on the 22/4/07 and so the 30 days for the presentation of the petition from that date, lapsed on 21/5/07. That the petition was therefore filed within 30 days and so competent
We were then invited by learned counsel to depart from the decisions in the cases of IKIHARAIALE V. OKOH (2009) 12 NWLR (PT.1154) 1, KUPOLATI V. OKE (2009) ALL FWLR (PT.486) 1858 and AYANTOLA V. A.C (2009) ALL FWLR (PTA75) 1795 in so far as they decided that if the last day falls on a Sunday or other non dies day the time is not extended to the next day and the court’s offices were closed. He said the decisions were given per incuria because in their interpretation of Section 141 of the Electoral Act, their attention was not drawn to the common law principle of interpretation of statutes. Paragraph 50 of the 1st Schedule to the Electoral Act, HALBURY’S LAWS OF ENGLAND; volume 4; paragraphs 556 at page 904 and paragraph 887 at page 1542 as well as the English cases of PRETAN HALL V, RUSSEL & SONS LTD (1973) 1 ALL E.R. 617 at 620 and 623 and BLACK CLAWSON INTERNATIONAL LTD V. PAPIERWERK (1975) 1 ALL E.R. 810 at 842-3 and 845 were cited and relied by learned counsel in urging us to hold that the petition was filed within the prescribed time and therefore competent.
It would appear that from the submissions by the learned counsel for the respective parties on the issue, the point of disagreement is as to the date when the result of the election was declared. For the Appellants and the 3rd Respondent, there was evidence that the result was declared on the 21/4/07 as borne out by the declaration of result forms admitted in evidence. The contention for the 1st and 2nd Respondents, is that the only evidence adduced on the date of the declaration of the result of the election show that the winner was declared on 22/4/07.
As a foundation for the determination of the date on which the result of the election in question was declared it would be remembered that because appeals are determined on the record of appeal compiled and transmitted by the Lower court or tribunal to this court, both the court and the parties are bound by the record of the appeal transmitted by the Lower tribunal in respect of this appeal. LARMIE V. D.P.MS. LTD (2005) 12 SC (PT.I) 93, VEEPEE INDUSTRIES V. COCOA INDUSTRIES (2008) 13 NWLR (PT.1105) 486 at 512. In the determination of an appeal therefore, the parties and the court are entitled to refer to make use of and rely on any relevant page, portion, part or documents forming part of or included in the record of the appeal.
For that reason, the determination of the date the result of the election in this appeal was declared would be entirely based on the record of appeal. In this regard, I would agree with the learned counsel for the 1st and 2nd Respondents that the issue is entirely to be decided from the evidence which was tendered and admitted in the proceedings. Learned counsel is also correct in law when he said that documents can only be relied on in the determination of a matter if they were admitted in evidence. Where documents were not tendered at all or tendered but rejected, they do not become evidence which can properly be relied on in decision of a matter either at trial or on appeal even if included in the record of an appeal. NGIGE V. OBI (2006) ALL FWLR (PT.330) 1041.
I now turn to the relevant pages of the record of appeal to find out on which date the result of the election was declared. Learned counsel for 3rd Respondent had specifically cited pages 66 – 69, 126-7, 148-50, 166 – 185, 188 – 195, 202, 209 and 237-8, which are all copies of the INEC Form EC8A(1) containing results of the election at various polling stations signed by the respective polling/presiding officers and dated the 21/4/07. These forms were tendered by the learned counsel for the 1st and 2nd Respondents (as Petitioners); Mr. K.B. Olawoyin at page 440 of the record of appeal and admitted in evidence at page 441 by the Lower tribunal as Exhibits A, Al – A16. Some of these forms were also tendered by Mr. N. Jimoh learned counsel for the 3rd Respondent (1st Respondent before the Lower tribunal) and admitted in evidence by the Lower tribunal at.pp.451 and 452 of the record of appeal. The documents were therefore tendered and admitted in evidence in the proceedings and can properly be relied on by the court in the determination of when the results contained therein were declared. Then there is, the INEC FORM
EC8C(II); the summary of results from Registration areas from Bichi L.G.A. which was admitted in evidence in the proceedings as Exhibit E at page 442 of the record of the appeal. There is also a similar form admitted in evidence as Exhibit L1 at page 449 of the record. There were the summary of results from polling stations, Form EC8B(II)s which were admitted in evidence at page 441 as Exhibit B, Exhibit L at page 449 and Exhibit N at p.452 of the record. All the Exhibits named above were signed and dated the 21/4/07. The law on election results issued by INEC officials in respect of elections is now trite that such results are presumed correct and authentic until proved otherwise. HASHXDU V. GOJE (2006) 2 EPR 789, YUSUF V. OBASANJO (2006) ALL FWLR (PT.294) 387. Because the results in these forms were signed and dated the 21/4/07, the presumption is that the results were declared on the 21/4/07.
I agree with the learned counsel for the 3rd Respondent that the 1st and 2nd Respondents did not dispute that the results contained in the said forms were declared on the 21/4/07. The oral evidence of PW1 under cross examination without more, is incapable of effectively controverting the presumption that the results of the election were declared on the 21/4/07 when the Exhibits were signed and dated. The law is that a party seeking to use evidence obtained during cross-examination which is crucial to the case must amend his pleadings to reflect such evidence. WOLUCHEM V. GUDI (1981) 5 SC 291.
From the evidence tendered and admitted as demonstrated above, there is no doubt and so it cannot seriously be disputed that the results of the election in question were declared on the 21/4/07. Appointed out by the learned counsel for the 3rd Respondent, the Lower tribunal had at a stage in the trial of the petition before it affirmed that the result of the election to which the petition related, was declared on the 21/4/07. The Lower tribunal had stated while ruling on the application filed by the 1st and 2nd Respondents to amend the petition as follows at page 339 of the record of appeal:-
Before delving into consideration and determination of the lone issue, it is worth stating that the election which gave birth to the petition was held on and result declared on 215t day of April, 2007. (underline supplied).
The ruling of the Lower tribunal on the application to amend the petition cannot be denied to have been made in the course of the proceedings at the trial of the petition and so it form a vital and binding part of the record of the appeal which the court can properly rely on in the determination of when the result of the election was declared. In the result, my finding is that the result of the election in question was declared on the 21/4/07 from all the relevant evidence admitted at the trial of the petition and included in the record of appeal before us.
The above apart, even the invitation by the learned counsel for the 1st and 2nd Respondents to the court to depart from its decisions in the cases IKHARAIALE V. OKOH, KUPOLATI V. OKE and AYANTOLA V. A.C all (supra), for the reason he gave would appear to be at least a concession by him that the result of the election was in fact declared on 21/4/07 and that the last of the 30 days prescribed in Section 141 happened to be a Sunday the 20/5/07 and that was why the petition was presented on the 21/5/07; the next day after the expiration of the 30 days inline with the common law principle on interpretation of statutes relied on by him.

The provisions of Section 141 of the Electoral Act, 2006 which are now common knowledge in election matters, are thus:-
141. An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.
These provisions are quite simple, straight forward and devoid of the usual windy and obfuscating style of the legal draftsmen. The golden rule of interpretation is that where the words of a statute are clear and unambiguous, the court has the duty to ascribe to them their ordinary and plain meaning without resort to any other cannon of interpretation or outside aid. EKEOGU V. AL1RI (1991) 3 NWLR (PT.179) 258, IBRAHIM V. OJOMO (2004) 1 SC (PT.II) 136, YUSUF V. OBASANJO (2004) 5 SC (PT.I) 27, ONOCHIE V. UDOGWU (2006) ALL FWLR (PT.317) 544.

This Court had in several appeals arising from decisions on election petitions under the Electoral Act, 2006 considered and interpreted the provisions of Section 141 that is why I stated earlier that, they are now common knowledge. A full panel of the court in the appeal KUMALIA V. SHERIFF (2008) ALL FWLR (PTA31) 1042, (2009) 9 NWLR (PT.1146) 420 had laid what can be said to be the foundation and binding approach to the interpretation of the provisions. In the lead judgment which was unanimous, R.D. Muhammad, JCA had stated at page 433-4 of the report thus:-
In construction of statute, plain words must be given plain meaning. In the instant case, the Section 141 of Electoral Act, 2006 are clear and unambiguous and as such must be given their literal and ordinary meaning without recourse to the Interpretation Act.
The court has in subsequent appeals consistently maintained and adopted the above principle on the interpretation of Section 141 of the Electoral Act, 2006. See AC. V. JANG (2009) ALL FWLR (PT 67) 156, AKUME V. LIN (2008) 16 NWLR (PT.1114) 490, AGBAI V. INEC (2009) ALL FWLR (PT 99) 596, IKHARAIALE V. OKOH (supra), IBRAHIM V. SHEMA Appeal No. CA/K/EP/GOV/98/2008 and UMORU V. ALIYU Appeal No. CA/A/EP/317/2007 and CA/A/EP/232/2008 (both yet to be reported) KUPOLATI V. OKE (2009) ALL FWLR (PT.486) 1858.
I have no reason here because there is no basis not to follow and adopt the same interpretation of the section which by law binds me JATAU V. AHMED (2003) 1 SCNJ 382, (2003) 4 NWLR (PT.811) 498, AFRIBANK V. K.G.G. (2001) FWLR (PT.67) 1042, I.T.P.P. V. UBN (2006) 13 NWLR (PT.995) 483 at 504. Consequently in my interpretation of Section 141 of the Electoral Act, there is no need to have resort to any external aid because the words are clear, plain and unambiguous. The words are in their ordinary and plain meaning to the effect that an election petition must be filed or presented within 30 days from the date the result of the election is declared. The use of the word “shall” in the provisions makes it mandatory that the petition must be presented within the period prescribed therein. This is because the word “shall” is used in a statute to express a command, directive, exhortation or what is legally unavoidable or inescapable and mandatory. MOKELU V. FEDERAL COMMISSIONER FOR WORKS AND HOUSING (1976) 3 SC 35, OMOKEODO V. I.G.P. (1999) 6 NWLR (PT.607) 467, ONOCHIE V. ODOGWU (supra). Since the result of the election was declared on the 21/4/07, to be in compliance with the above provisions therefore, the election petition must be filed or presented within 30 days from that date.
From the now settled position of the law as established in KUMALIA V. SHERIFF and the other cases cited supra, time starts to run from the day the declaration of the result was made which in the present appeal is the 21/4/07. In other words, in the computation of the period of 30 days stipulated and limited in Section 141, the date of the declaration is included as the time starts to run from that day. Consequently thirty (30) days from the 21/4/07 inclusive, would be and end on the 20/5/07.
It common ground in the appeal that the 1st and 2nd Respondents petition was filed on the 21/4/07 which clearly means and shows that it was filed on the 31st day from the date the election result was declared. Apparently therefore, the petition was filed outside the thirty (30) days prescribed and limited by the mandatory provisions of Section 141.
Faced with a similar situation as in the present appeal the court in UMARU V. ALIYU (supra) had held thus:-
In the instant appeal therefore, time started to run on the 15th April, 2007 when the result of the election was 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 is therefore statute barred and the Tribunal lacked the requisite jurisdiction to entertain this petition it being statute barred.
That is the inescapable position in the present appeal. For being presented on the 31st day after the date of the declaration of the result of the election in dispute, the petition of the 1st and 2nd Respondents was presented outside and after the expiration of the mandatory period of thirty (30) days stipulated and limited by the provisions of Section 141 of the Electoral Act, 2006.

Non compliance with the provisions of the section results in the fatal consequence of the petition being presented out of the time or period prescribed by law and therefore statute barred. A further legal consequence of the petition being statute barred is that in law, it is rendered incompetent and thereby the Lower tribunal ab initio lacked the necessary judicial authority and power to entertain it. AHMED V. KASSIM (2007) 3 EPR, 450, CHXASON V. IGBA (2006) 2 EPR, 904 at 932, OUT V. INEC (1999) 5 NWLR (PT.602) 250, NONYE V. ANYICHIE (1989) 2 NWLR (PT.101) 110, BALOGUN V. ODUMOSU (1999) 2 NWLR (PT.592) 590, CHIBUEZE V. IBEDIRO (1999) 3 NWLR (PT.594) 206 at 212-3.

The learned counsel for the 1st and 2nd Respondents had invited us to depart from the decisions in IKHARAIALE V. OKOH, KUPOLATI V. OKE and AYANTOLA V. A.C. All supra in so far as they decided that if the last of the 30 days prescribed in Section 141 falls on a Sunday or other non dies day the time would not be extended to the next day and the court’s offices were closed. His reason for the invitation was that the common law principle of interpretation of statute was not brought to the attention of the court in the cases and so the decisions were according to him given per incuria. The Supreme Court in the case of ELABANJO V. DAWOOU (2006) ALL FWLR (PT.328) 604 has defined what a judgment or decision given per incuriam means. I find it expedient to set out the definition in extensio by Onnoghen, JSC at pp.666 – 667 of the report.
This is what His Lordship said:-
The principle of per incuriam has been defined in Black’s Law Dictionary 8th Edition, page 1175 thus:
Per Incuriam (of judicial decision) wrongly decided, usu, because the Judge or Judges were ill-informed about the applicable law.
There is at least one exception to the rule of stare decisis. I refer to judgments rendered per incuriam.

A judgment per incuriam is one which has been rendered inadvertently. Two examples come to mind: first, where the Judge has forgotten to take account of a previous decision to which the doctrine of stare decisis applies. For all the care with which Attorneys and Judges may comb the case law, errare humanum est, and sometimes judgment which clarifies a point to be settled is somehow not indexed, and is forgotten. It is in cases such as these that a judgment rendered in contradiction to a previous judgment that should have been considered binding, and in ignorance of that judgment, with no mention of it, must be deemed rendered per incuriam; thus it has no authority The same applies to judgment rendered in ignorance of legislation of which they should have taken account. For a judgment to be deemed per incuriam, that judgment must show that legislation was not invoked.

Louis – Phillipe Pigeon, Drafting and Interpreting Legislation, 60 (1988).
As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence/ Rupert Cross & J.W. Harris, Precedent in English Law149 (4th Edition 1991).

In addition, this court in KUMALIA V. SHERIFF (supra) at pages 456-457 of the report stated the situations in which the court can depart from its previous binding decisions as follows:-
The Court of Appeal unlike the Supreme Court, is bound by its previous decision. It can only depart from its previous decision in the following circumstances:
(a) where two decisions of the Court of Appeal are in conflict the court must choose between them;
(b) where the Court of Appeal comes to the conclusion that a previous decision although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court;
(c) where the Court of Appeal comes to the conclusion that a previous decision was given per incuriam, i.e. in ignorance of a statute or other binding authority, the court is not bound by it; and
(d) where the previous decision was decided without jurisdiction.
From the above definitions by both the apex court and the court, it is clear that a decision can only be correctly said to have been given per incuriam, if it was decided in ignorance of a statute or binding authority. Once a decision is shown to have been given per incuriam by this Court, then the Court is entitled in appropriate cases to depart from it as stated in the above decisions.

The question that agitates itself at this stage is whether the learned counsel for the 1st and 2nd Respondents has effectively shown that the named decisions of the court were given per incuriam within the purview of the definitions by the Supreme Court and this Court.
I have no difficulty in answering the question in the negative because the learned counsel did even suggest let alone contend that the decisions in question were given in ignorance of any binding statute or judicial authority. It may be recalled that the only reason given for the invitation to depart from the decisions is that the common law principle of interpretation that when act was required to be done and the last day within which it could be done falls on a Sunday or other non dies, it could be done on the next working day, was brought to the attention of the court.
I would like to mention that because election petitions are recognized to be sui generis in judicial adjudication since special or specific Law and Rules of Practice and Procedure are provided for them, no principle of the common law can be said to be a binding authority on the court in the determination of appeals arising therefrom.
In addition, the said principle of common law on interpretation of statutes has been incorporated in the Interpretation Act, which the court has emphatically decided is not applicable in the interpretation of Section 141 because they are clear, plain and unambiguous such that they require no external aid for application. In the said decisions the relevant provisions of the Interpretation Act in relation to the common law principle of interpretation of statutes were cited and brought to the attention of the court before it decided that they were not needed or required in the interpretation of Section 141.
In the result, the learned counsel has not demonstrated and established any valid and cogent reason why any of the decisions in question can be said to have been given per incuriam. There is therefore no acceptable reason to justify or warrant a departure by the court from those previous binding decisions.
But all the above apart, it should be remembered that due to the peculiar nature of election petitions, in the computation of the period prescribed for their presentation, no day of the week is excluded whether a Sunday or other days that may be declared either public holiday or non working day. For instance in the computation of the 30 days limited in Section 141 of the Electoral Act 2006, all Sundays and other days are included in the calculation such that no Sunday which fall within the 30 days is excluded. It is such that if the result of an election was declared on a Sunday (as it often happens) the time would start to run on that day for the purposes of the computation of the prescribed period for the presentation of an election petition. If time starts to run on a Sunday, it would be unreasonable to say that such time cannot or should not continue to run, lapse, and or expire on a Sunday if the last of the days falls on a Sunday. If the last of the days falls on a Sunday and a petitioner takes his petition for presentation before the Election Tribunal but could not present it because the offices of the Tribunal were not opened for their official duties or businesses and he satisfies the court to that effect, he would not in such a situation or circumstance be held to have not complied with the provisions of the Section. This is because he had done all that the law required of him to commence his action and the administrative lapses of the offices of the Tribunal over which he had no control cannot vitiate his action. See OMABUWA V. OWHOFATSHO (2006) ALL FWLR (PT323) 1655, CBN V. ADEDEJI (2004) 13 NWLR (PT.890) 226. If he however sleeps over the day taking it for granted that it is a non working day or a public holiday or even a non-dies day, (as is the current altitude) then, he only has himself to blame if he belatedly realized that the prescribed period had ended, expired or lapsed on a Sunday when he wakes up from his slumber.
In the final result, for being statute barred, the petition filed on the 21/5/07 by the 1st and 2nd Respondents is incompetent and the Lower tribunal lacked the requisite jurisdiction to entertain same. Consequently, all the proceedings conducted in the purported trial of the said petition are a nullity and void ab initio. The proceedings including the decision delivered on the 15/1/2008 are hereby set aside. With this decision, there is nothing left in the appeal to be determined. The petition is struck out. The declaration and return of the 3rd Respondent as the winner of the election conducted on the 21/4/2007 at the Bichi Federal Constituency for a seat in the House of Representatives, is hereby affirmed.
Parties are to bear their respective costs of prosecuting the appeal.

JOHN INYANG OKORO, J.C.A: I read before now the judgment just delivered by my learned brother, GARBA, JCA and I am in total agreement with the views expressed therein and the conclusion so reached. It is now elementary that the jurisdiction of a court to entertain a matter is so fundamental because where a court lacks the jurisdiction to hear a matter, the whole proceedings, including the judgment thereof are a nullity. See Ojuckwu V. Ojukwu (2008) 18 NWLR (pt 1119) 439. Therefore, the issue can be raised at any stage of the proceedings and even on appeal at the Supreme Court. See Omomeji V. Kolawole (2008) 14 NWLR (pt 1106) 180. Let me state further that the issue can be raised by the court suo motu but where it is so raised, the parties should be given an opportunity to address the court accordingly. See Okoye V- C.P.M.B Ltd (2008) 15 NWLR (pt 1110)335.
In the instant appeal, result of the election was declared on 21st of April, 2007 whereas the petition was presented on 21st May, 2007. From the date the result was declared to the date the petition was filed, it is crystal clear that it was presented on the 31st day whereas section 141 of the Electoral Act 2006 prescribes that an election petition shall be presented within thirty (30) days from the date the result of the election is declared. This section of the Electoral Act 2006 has been judicially interpreted to mean that since the words used in that section are clear and unambiguous, they must be given their literal and ordinary meaning without recourse to the Interpretation Act. See Kumalia V. Sheriff (2008) All FWLR (pt 431) 1042.
Therefore, the petition which gave birth to this appeal, having been filed a day after the 30 days allowed by the Act, was incompetent and robbed the lower court of the jurisdiction to entertain same. Based on this, I agree that all the proceedings conducted by the court below are null and void. I abide by all the consequential orders in the lead judgment. I also agree that parties should bear their respective costs.

THERESA NGOLIKA ORJI-ABADUA, J.C.A: I had the privilege of reading in advance the leading judgment in this appeal just delivered by my learned brother, M.L. Garba, J.C.A, and I totally agree with him that Petition No: EPT/KNS/HR/29/2007 filed by the 1st and 2nd Respondents in this Appeal at the National Assembly Elections Tribunal, sitting at Kano was caught up by Statue of Limitation as prescribed by section 141 of the Electoral Act, 2006.
It has been held by the Supreme Court in an avalance of cases that the moment an action is statute barred- the proper order to make is that of dismissal of the Plaintiffs action and not merely to strike it out. See N.P.A Plc vs Lotus Plastics Ltd (2005) 19 NWLR Part 959 p 158 Owners of the MV ‘Arabella vs. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR Part 1097 p 182 In the light of the above stated decision, I, too, allow the appeal. The judgment of the trial Tribunal delivered on 15/1/2008 is hereby set aside and it is hereby substitute with an order dismissing the said Petition No EPT/KNS/HR/29/2007 filed on 21/5/2007 by the 1st and 2nd Respondents at the National Assembly Elections Tribunal sitting at Kano. I abide by the order of cost made in the leading judgment.

Appearances

MR. N.H. AUTAFor Appellant

AND

MR. OFFIONG E.B. OFFIONG, K.B. OLAWOYIN, C. UZU
I. OGUNYOMI (MS)
MR. NUREINI JIMOH AND C.A. AYODELEFor Respondent