PATRICK AISOWIEREN & Anor v. PETER ONYEKWENEM IKEM & Ors
(2010)LCN/3875(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of June, 2010
CA/B/EPT/56A/2009
RATIO
WORDS AND PHRASES: MEANING OF WITHIN
The position of this Court on this issue is that the word “within” means that an election Petition arising from the date of election must be presented any time between 30 days from the date the result was declared, and it is inclusive of both dates. See Action Congress & Anor V. Jang & ors (2009) 4 NWLR (Pt.1132) 475. Thus, until the Supreme Court or another full Court sees fit to change that interpretation, this Division of the Court of Appeal will not depart from that interpretation or hold to the contrary.” PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BANBADI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. Patrick Aisowieren
2. Peoples Democratic Party [PDP]Appellants/Cross-Respondents Appellant(s)
AND
1. Peter Onyekwenem Ikem
2. Action Congress [AC]
3. Independent National Electoral Commission [INEC]
4. Resident Electoral Commissioner [INEC Edo State]
5. Electoral Officer INEC Orhionmwon Local Government Respondents/Cross-Appellants Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment) The parties in these Appeals are coming back to this Court for the second time in respect of the Election Petition filed by Peter O. Ikem and Action Congress [AC] at the Edo State Governorship and Legislative Houses Election Tribunal, on the 14th day of May, 2007.
The first time around, this Court remitted the said Election Petition back to the Tribunal for trial on the merits, after it had earlier been dismissed at the trial stage for failure to file pre-hearing notice.
However, upon their return to the Tribunal, Patrick Aisowieren and his party, PDP filed a Notice of Preliminary Objection, and prayed for:-
(1) An Order striking out the Petition for want of jurisdiction on the grounds stated in Schedule ‘A.’
(2) And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances of this Petition.
Schedule ‘A’ Grounds for the Objection
i. That the results of the election to Orhionmwon East Constituency of Edo State House of Assembly held on 14th April, 2007 was declared on the 14th day of April, 2007.
ii. That the Petitioners filed this Petition and the Statement on Oath in support on the 14th day of May, 2007 i.e., 31 days from the date of declaration of the result of the election.
iii. Section 141 of the Electoral Act 2006 provides that an election petition shall be declared thirty (30) days from the date the result of the election is nullified.
iv. The Petition must be filed before the expiration of 30 days.
v. That the Petition is incompetent being statute barred pursuant to Section 141 of the Electoral Act 2006.
Written addresses were filed and adopted, and in its Ruling delivered on the 19th of November, 2008, the Tribunal overruled the objection.
Dissatisfied with the decision, they filed an interlocutory appeal in this Court with a Notice of Appeal containing three Grounds of Appeal.
Oddly enough, Peter Ikem and AC filed a cross-appeal against the portion of the Ruling wherein it was held that the Interpretation Act is not applicable to computation of time for presenting election Petition.
The interlocutory appeal is numbered as CNB/EPT/56A/2009.
Be that as it may, the Tribunal proceeded to hear 19 witnesses called by Peter Ikem and AC; the 17 witnesses of Patrick Aisowieren and PDP and 7 witnesses called by INEC and its Officers. Again, written addresses were filed and adopted, and in its final Judgment delivered on the 20th of March, 2009, the Tribunal found in favour of Patrick Aisowieren, and dismissed the Petition as lacking in merit. Peter Ikem and AC being dissatisfied with the decision, appealed to this Court with a Notice of Appeal containing 11 Grounds of Appeal, and the main appeal has been numbered as CNB/EPT/56B/2009.
The interlocutory appeals will be considered first since they touch on the jurisdiction of the Tribunal to entertain the said Petition.
The Appellants’ brief in the main interlocutory appeal was settled by Uyioghosa Egbon, Esq., for Ighodalo Imadegbelo (SAN) & Co, and the following Issue was distilled from their three Grounds of Appeal:-
“‘Whether or not under Section 141 of the Electoral Act 2006, the 1st and 2nd Respondents’ Petition filed outside 30 days from the date of the Declaration of the result is not statute barred.”
The Respondents/Cross Appellants submitted in their brief prepared by Ricky Tarfa (SAN), A. J. Owoniko, Esq., and O. Odubela, Esq., that pursuant to Order 17 rule 7 of the Court of Appeal Rules 2007, they could argue both interlocutory appeals together under a sole Issue, and they proceeded to formulate the following Issue:-
“‘Whether the Petition in this case was filed out of time prescribed under Section 141 of the Electoral Act 2006 and was therefore incompetent.”
The Appellants, however, raised a preliminary objection to the cross appeal in their Cross Respondents’ brief. They contended that the above Issue is incompetent and should be struck out because it “does not directly arise from the Grounds of Appeal filed in the Cross-Appeal,” citing Unity Bank Plc V. Bouri (2008) 7 NWLR (Pt.1086) 372, and argued that the arguments canvassed outside the Grounds of Appeal are incompetent and liable to be struck out, citing Ezembe V. Ibeneme (2004) 14 NWLR (Pt 894) 617 & Zabusky V. Isreali Aircraft Ltd. (2008) 2 NWLR (Pt. 1070) 131; and that a brief no matter how brilliantly researched and written, is incompetent and is liable to be disregarded by the Court of Appeal, citing Haruna Abubakar & Anor V. INEC (2004) 1NWLR (Pt 854) 1, N.A.A. V. Okoro (1995) 6 NWLR (Pt. 403) 510, Mohammed V. Klargester (1996) 1NWLR (Pt 422) 54.
It is also their contention that the Cross-Appeal is an abuse of Court Process because the Issues they canvassed in the substantive appeal are similar to the issues being canvassed in the cross appeal.
In my view, the objection raised to the issue formulated by the Cross-Appellants is just a storm in a teacup, and is neither here nor there.
Both interlocutory appeals relate to the Tribunal’s Ruling dealing with the issue of whether the election Petition was filed within time or not, and I really do not see any difference in the issues both parties filed. In any case, the 3rd to 5th Respondents adopted the Appellants’ Issue in their brief settled by K. O. Obamogie, Esq., and I will do same.
In the Ruling appealed against, the Tribunal relied on the cases of Agbai V. INEC & Ors (2008) 14 NWLR (Pt. 1108) 417 and University of Lagos V. Olaniyan & Ors (1985) 1 SC 295, and held:-
“… Considering the ratio in those two cases and which are binding on this Tribunal we are left with no other judicial option that to follow and apply same to the situation at hand which fact is pari materia to the two decision herein before amplified. In conclusion therefore, we are compelled to hold that this petition filed on the 14th day of May, 2007 consequent upon declaration of result on 14th day of April, 2007 was filed within the 30 days contemplated under section 141 of the Electoral Act. We therefore answer the last question in the negative. Consequently therefore, the objection by the 1st and 2nd Respondents is overruled and same is hereby dismissed. There will be no order as to cost.”‘ (Highlight mine)
I do not intend to go into the details of the arguments canvassed by the parties because this Court has taken a firm stand on this issue.
The Appellants’ submissions and authorities cited, are on pages 3 to 21 of their brief. It is their contention that the 30 days allowed for the presentation of a Petition under Section 141 starts running “from the date the result was declared”, thus, the Petition is incompetent because the results were declared on the 14th of April, 2007, and the Petition was filed on the 14th of May, 2007. They also argued that the Interpretation Act is not applicable in the interpretation of 30 days, and that the recent Judgments of Kim V. Akume (2008) 16 NWLR (Pt.1114) and Tsumba V. Ityomyima (Unreported) are more recent than those of Agbai V. INEC (supra) and Alugbe-Obia V. Okonta (unreported) relied on by the Tribunal, and should be followed. The Respondents/Cross-Appellants’ arguments run from pages 7 to 34 of their brief. They agree with the Tribunal’s conclusions, but argued that the Tribunal was wrong to hold that the Interpretation Act is not applicable to computation of time under Section 141 of the Electoral Act. They submitted that the last date for filing the Petition, if date of declaration was included, would be Sunday 13th May, 2007, a public holiday, and by virtue of Section 15 (2) of the Interpretation Act, their filing of the Petition on the next working day, Monday 14th May, 2007, is deemed to be a filing on Sunday 13th May, 2007, and therefore within time. It was further argued that if this Court holds that the Tribunal was wrong to have followed Agbai V. INEC (supra), it is still open to uphold the Tribunal’s decision on the ground that (contrary to its reasoning), the Interpretation Act is applicable to computation of time to file a Petition under the said Section 141.
The 3rd – 5th Respondents toed same line with the Appellants.
They also argued that the breach of the mandatory provisions of Section 141 of the Electoral Act robbed the Tribunal of its jurisdiction to hear and determine the Petition, and so the proceedings founded on it ought to be set aside by this Court. They further submitted that:-
“‘it is patently clear that the 1st and 2nd Respondents have themselves to blame for deliberately waiting till the last moment before presenting their Petition.
There is no room for sympathy on this matter.”
In arguing the appeal on behalf of the Respondents/Cross-Appellants, A. J. Owonikoko, Esq., referred this Court to the recent decisions of the Supreme Court in Ezeigwe V. Nwawulu (2010) 4 NWLR (Pt.1183), Accord Party V. Gov. of Kwara State (2010) 12 WRN 59, and Dr. Nwankwo & 2 Ors V. Alhaji Umaru Yar’Adua (Unreported) SC.279/2007 delivered on the 15th of March, 2010 which, he submitted, are in favour of their stand point on the issue.
Mr. I. E. Imadegbelo (SAN), learned senior counsel for the Appellant, however, replied that the Supreme Court decisions referred to have no direct bearing on the issue under consideration in this appeal, and referred us to the Supplementary List of six Authorities that he filed, which includes Akinyugba N. Jones V. Moshood Abiodun Bakare; an unreported Judgment delivered by us on the 15th of December, 2009.
I wrote the lead Judgment in that case, and this is what I said there:-
“Section 141 of the Electoral Act provides as follows:-
“An election Petition under this Act shall be presented within 30 days from the date the result of the election is declared.”
The position of this Court on this issue is that the word “within” means that an election Petition arising from the date of election must be presented any time between 30 days from the date the result was declared, and it is inclusive of both dates. See Action Congress & Anor V. Jang & ors (2009) 4 NWLR (Pt.1132) 475. Thus, until the Supreme Court or another full Court sees fit to change that interpretation, this Division of the Court of Appeal will not depart from that interpretation or hold to the contrary.”
In this case, the result of the election was declared on the 21st of April, 2007, and the 1st Respondent filed his Petition at the lower Tribunal on the 21st of May, 2007; it was filed out of time. There is not much I can say that will ameliorate the situation, it is only hoped that any amendments to the Electoral Act would be geared towards making its provisions easier and less confusing. As it is, the appeal succeeds and is allowed.
The Supreme Court has not been given any opportunity to make any direct pronouncements on the issue of time under Section 141 of the Electoral Act, and with another election period only months away, it is my view that it is too late in the day to change a horse midstream.
In other words, nothing has changed since the 15th day of December, 2009, when I delivered that Judgment to alter my decision.
At the end of the day, the only conclusion that can be arrived at is that the Tribunal was wrong, and that the 1st and 2nd Respondents’ Petition filed at the Tribunal on the 14th of May, 2007, was out of time.
With regard to the cross-appeal, it is obvious which way the pendulum will swing. The case law on the subject makes it clear that the Interpretation Act is not applicable in the Interpretation of Section 141 of the Electoral Act:- see Action Congress V. Jang & ors (supra).
The end result is that the main interlocutory appeal succeeds and is allowed. The cross-interlocutory appeal fails and is hereby dismissed.
The decision of the Tribunal in its Ruling delivered on the 19th of November, 2008 is set aside. In its place, the objection is upheld and the Petition is struck out for want of jurisdiction on the part of the Tribunal.
Since the Petition filed at the Tribunal is statute barred and incompetent, any proceedings founded on it cannot be allowed to stand, thus, the proceedings at the Tribunal are hereby declared null and void.
The Judgment of the Tribunal delivered on the 20th of March, 2009 is a nullity and it is hereby set aside. There will be no order as to costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had the privilege of reading before now the lead judgment of my learned brother, AUGIE, JCA. I fully and entirely agree with same. I have nothing more to add. I too would allow the main interlocutory appeal and dismiss the cross-interlocutory appeal. I abide by all the consequential orders in the lead judgment.
CHIOMA EGONDU NWOSU-IHEME, (Ph. D), J.C.A: I agree entirely with the lead Judgment delivered by my learned brother, AMINA ADAMU AUGIE, JCA. There is therefore no need to dwell further on the said Judgment. I also abide by the order as to costs.
Appearances
I.E. Imadegbelo (SAN) with A. Alofoje, Esq.
And U. Egbon, Esq.
A. J. Owonikoko, Esq.For Appellant
AND
K. O. Obamogie, Esq., with B. O. Okoduwa, Esq.For Respondent
