OLAIYA KUPOLATI & ANOR. V. OLUSOLA OKE & ORS.
(2019)LCN/13049(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of April, 2009
CA/IL/EP/HA/12/2008
JUSTICE
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CENTUS CHIMA NWEZE Justice of The Court of Appeal of Nigeria
Between
1. OLAIYA KUPOLATI
2. ACTION CONGRESS Appellant(s)
AND
1. OLUSOLA OKE
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT ELECTORAL COMMISSION & ORS.
4. RETURNING OFFICER, EDA-ONIYO WARD
5. WARD RETURNING OFFICER, ISAPA WARD/IYE 3, IYE-EKITI
6. RETURNING OFFICER, IPERE EKITI WARD
7. RETURNING OFFICER EDA-OBADEA WARD
8. RETURNING OFFICER EWU-EKITI WARD ALL IN ILEJEMEJE CONSTITUENCY
9. THE ELECTORAL OFFICER ILEJEMEJE LOCAL GOVT.
10. RETURNING OFFICER FOR STATE HOUSE OF ASSEMBLY ELECTION, EKITI STATE,
11. RESIDENT ELECTORAL COMMISSIONER, EKITI STATE Respondent(s)
RATIO
THE CARDINAL RULE OF INTERPRETATION OF STATUTES
As one of our legal sages Eso J.S.C. in Attorney-General, Ogun State vs. Alhaja A. Aberuagba & Ors. (1985) 4 SC. (Pt.1) 288 at 283 succinctly and admirably warned and directed when confronted with a similar interpretational problem as has been posed in the appeal herein:
“in the interpretation of Statutes, the ordinary literal meaning must first be examined. If the words are clear and unambiguous then the ordinary literal meaning must be given to them, for then, the intention of the law maker has not been obscured. It is only where there is doubt or ambiguity, that recourse is made to other canons of interpretation. See Awolowo vs. Shagari (1979) 6 – 9 S.C. 51. “In the same vein, Karibi- White J.S.C. another eminent emeritus Justice of the Supreme Court, put it even more explicitly when he brilliantly intoned in the celebrated case of in I.B.W.A. vs. Imano (Nig.) Ltd. & Anor. (1988) 7 S C.NJ (Pt.. II) 326 at 344 – 345:-
“It is a fundamental rule for the interpretation of Statutes that where the words used are clear and unambiguous, they should be construed as they are and given their ordinary plain meaning. See Jammal Steel Structures Ltd. vs. A.C.B. Ltd. (1973) 1 All NL.R. (Pt. 2) 208. It is not in such circumstances permissible to go beyond what the words themselves actually convey and to consider what other things they are capable of and could mean. This is because where the provision is unambiguous and clear they contain the intention of the law maker and no words inferred aliunde are required to discover the intention which have been fully expressed in the words used. This is the literal rule and the golden method of interpretation. ” PER AGUBE, J.CA.
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Governorship and Legislative Houses Election Tribunal holding at Ado-Ekiti, Ekiti State wherein the Petitioners/Appellants’ Petition was dismissed on the ground that it was statute barred same having been brought or initiated after the effluxion of the 30 days mandatory period as stipulated by Section 141 of the Electoral Act.
The facts of the case as can be gleaned from the Record of proceedings are that the Ist Petitioner was the sponsored candidate of the 2nd Petitioner at the House of Assembly Election for the Ilejemeje State Constituency of Ekiti State.
At the Election held on the 14th of April, 2007, the 1st Petitioner/Appellant, the 1st Respondent and one Bode Ogunyemi were the candidates sponsored by their respective political parties who contested and scored the following votes:-
PARTY CANDIDATES VOTES SCORED
ACTION CONGRESS (A.C) OLAIYA KOPULATI 1,972
PEOPLES DEMOCRATIC PARTY (P.D.P.)OLUSOLAOKE 3,644
ALL NIGERIA PEOPLES PARTY BODE OGUNYEMI 400
At the end of the Election, the 1st Respondent was returned by the 3rd to 11th Respondents. Aggrieved by the declaration and return of the 1st Respondent as the winner of the Election, the Petitioners/Appellants filed their petition at the Election Tribunal sitting at Ado-Ekiti on the 14th day of May, 2007, on the grounds that:-
“(1) The 1st Respondent was not duly elected by majority of the lawful votes cast at the said House of Assembly Election at Ilejemeje Constituency;
“(2) The election or declaration of the 1st Respondent was invalid by reason of corrupt practices and substantial non-compliance with the provisions of the Electoral Act, 2006.
Accordingly, the Petitioners/Appellants sought for the following Reliefs:-
“(a) An Order of the Honourable Tribunal declaring that the 1st Respondent was not validly elected and returned in the House of Assembly Election held at Ilejemeje Constituency on the 14th of April, 2007;
“(b) An Order of the Honourable Tribunal declaring that as against 1st Respondent it was the 1st Petitioner who scored the majority of valid votes at the House of Assembly Election in Ilejemeje Constituency on the 14th of April, 2007;
“(c) An Order of the Honourable Tribunal directing the 3rd – 11th Respondents to immediately issue the certificate of Return to the Ist Petitioner as the winner of the House of Assembly Election held in Ilejemeje Constituency on 14th of April,2007.
“Alternatively, AN ORDER of the Tribunal cancelling the House of Assembly Election held at Ilejemeje Constituency on 14th April, 2006 for the reason of fraud and substantial irregularities to wit: rigging, violence and generally thuggery and substantial non-compliance with the provisions of the Electoral Act, 2006.”
Sequel to the above, the 1st and 2nd Respondents filed their Reply on the 7th day of June, 2007 while the 3rd – 11th Respondents filed theirs on the 29th day of June, 2007 respectively. Subsequently, after issues had been joined the 1st and 2nd Respondents through their Counsel, Oluwasina Ogungbade Esq. of Chief Afe Babalola, SAN & Co. Chambers, filed a Notice of Preliminary Objection pursuant to the Election Tribunal and Court Practice Direction, 2007, and the inherent jurisdiction of the Tribunal. In the said notice of preliminary objection they sought for an Order striking out/dismissing the petition for lack of jurisdiction same having been presented outside the period of 30 days stipulated under Section 141 of the Electoral Act, 2006, and for such further or other Orders as the Honourable Tribunal may deem fit to make in the circumstances of the case.
The Grounds of the Application were stated as follows:
“1. This petition was presented on the 15th of May, 2007 outside of the stipulate period of 30 days under the provisions of Section 141 of the Electoral Act, 2006, thereby robbing this Honourable Tribunal of the jurisdiction to entertain same;
“2. The period stipulated under the Electoral Act, 2006 for the presentation of a petition cannot be extended;
“3. This petition is statute barred.”
In support of the motion, the Respondents deposed to an affidavit of eleven paragraphs accompanied by a Written Address to which was annexed Exhibit A – a copy of Form EC.8E(1) (Declaration of Result of Election) issued by the 3rd Respondent and dated 14th April, 2007 declaring 1st Respondent as the winner of the Election.
The Petitioners/Appellants filed a counter-affidavit with a written Address to challenge the preliminary objection to which the Respondents/Applicants reacted by filing a Further Affidavit in support of the Notice of Preliminary Objection and Written Reply to which Exhibit 00 I – a copy of application for a Certified True Copy of the Receipt of Petition (Form TF002) issued to the Petitioners on the day the petition was presented to the Secretary of the lower Tribunal; and Exhibit 002 the Notice of Presentation of Petition (Form TF003) served on the 1st and 2nd Respondents and dated 15thof May, 2007 were also annexed.
Arguments were subsequently taken on the Notice of Preliminary Objection and the learned members of the Tribunal in a well considered Ruling delivered on Monday 14th day of April, 2008 held as follows:-
“We hold that since the petition was filed on the 14th of May, 2007, it was filed one day outside the mandatory period stipulated by Section 141 of the Electoral Act, 2006. The petition is therefore statute or time barred. Accordingly, the petition is hereby struck out. We make no order as to costs. ”
Aggrieved by the above ruling of the learned members of the Tribunal, the Petitioners filed their Notice of Appeal with five Grounds which are hereunder reproduced without their prolix particulars:-
GROUNDS OF APPEAL
I. The Honourable Tribunal erred in law when (sic) His Lordships held as follows:-
“We agree with the submission of respondent’s counsel that the Tribunal can take notice of documents in its file. We have looked at the petition and found as a fact that the Secretary of this Tribunal indicated on the petition the date 14th day of May, 2007 as the date he received the petition from the petitioners. We have read the cases of Kamba vs. Bawa (supra) and Galandu vs. Kauba (supra) relied on by the Applicants and are satisfied that although payment of statutory fees is a condition precedent to the presentation of an election petition, payment of statutory fees and no more is not sufficient to constitute proper presentation of an election petition. The Respondents did not Exhibit Form TF 002 as evidence of the presentation of their petition;
“2. The Honourable Tribunal erred in Law by relying on the recent decisions of the Court of Appeal in the unreported cases of Action Congress vs. Jang Appeal No. CA/J/EP/GOV/2752007 and Hon. Kumaila vs. Senator Ali-Modu Sheriff CA/J/EPT/GOV/2442007 both delivered in Jos Division of the Court to hold that Interpretation Act does not apply to Section 141 Electoral Act and that the date of declaration of result will be reckoned with in computing time within which a petition could be presented;
“3. The Honourable Tribunal erred in law by placing reliance on the decisions of Fadare vs. A.G. Oyo State (1982) 4 SC. 2 and Alatah vs. Asin (1999) 5 N.W.L.R. (Pt.201) 2 to hold that the date of the declaration of result will be counted in computing 30 days;
“4. The Honourable Tribunal erred in law by not considering the submissions that the last day falls on Sunday hence the filing of the petition on Monday is proper and valid;
“5. The Honourable Tribunal erred in law by holding that the petition was filed after the mandatory period of 30 days stipulated by the provision of S.141 of the Electoral Act and held that the petition is statute barred.”
Pursuant to the Rules of this Court, parties filed their respective Briefs of Argument which were adopted on the 28th of January, 2009 when the Appeal was heard by this Honourable Court. In the Brief settled by Chief A.A. Adeniyi of counsel for the Appellants, three issues as calling for determination were formulated which are hereunder reproduced thus:-
“1) Whether the Honourable Tribunal was right by (sic) His Lordships’ finding that the Interpretation Act was not applicable and/or cannot be applied to interpret section 141 Electoral Act, 2006 and thereby include the day of declaration of Result in the counting of 30 days within which to file petition?
“2) Whether the Honourable Tribunal was wrong by not following the decision of the Supreme Court in the case of Yusuf v. Obasanjo and the Federal High Court (Civil Procedure) Rules 2000 while interpreting section 141 of the Electoral Act, 2006, when the provision of Electoral Act 2002 interpreted by the Supreme Court is Ipsissima verba of the Provision of Section 141 Electoral Act, 2006?
“3) Whether the Honourable Tribunal was not wrong by (Sic) His Lordships finding that the petition was filed one day out of time stipulated by Section 141 Electoral Act, 2006 when the last day falls on Sunday?”
On their part, the 1st and 2nd Respondents distilled a sole issue as germane to the determination of the Appeal which is crouched in the following terms:-
“Whether the petition filed on the 14th of May, 2007 was not as found by the Tribunal, filed a day outside of the 30 days period stipulated under Section 141 of the Electoral Act, 2006”
As for the 3rd to 11th Respondents, Mrs. Maureen Arinze their counsel in the brief settled on their behalf also submitted a sole issue for determination which is:-
“Whether the Lower Tribunal was right when it held that the provisions of Interpretation Act, Laws of Nigeria was not applicable to the provisions of Section 141 of the Electoral Act, 2006, in the computation of time for the presentation/filing of Election petitions under the Act?”
It is pertinent to note that in the Appellants’ Brief Counsel for the Appellants argued Issues Number 1 and 2 together and Issue Number 3 separately.
Arguing Issues Number I and 2 together, the Learned Chief highlighted Section 141 of the Electoral Act, 2006 and Sections 1, 15 and 37 of the Interpretation Act as calling for examination in order to determine whether the latter apply to the interpretation of the former (whether the Interpretation Act is applicable to the interpretation or construction of Section 141 of the Electoral Act). Learned Counsel called on us to also examine the long Title of the Interpretation Act and the provisions of Order 23 Rule I of the Federal High Court, (Civil Procedure) Rules, 2000, which he reproduced verbatim to submit that paragraph 50 of the 1st Schedule to the Electoral Act, 2006 makes the application of the Federal High Court (Civil Procedure) Rules to Election petitions possible. The Learned Chief also pointed out to the fact that their petition was filed on the 14th day of May, 2008 as can be found from page I of the Records and the receipt number 2004189070 evidencing payment of the required filing fees following the declaration of the Election results for Ilejemeje Constituency on the 14th April, 2007, as can be seen in Exhibit A attached to the supporting affidavit at page 27 of the Record of Appeal. He then posed the question as to whether the petition was presented out of time having regard to the provisions of the Electoral Act, 2006, and the Interpretation Act and the Federal High Court (Civil Procedure) Rules 2000.
Learned Counsel for the Appellants submitted that it is clear from section 1 of the Interpretation Act that its provisions apply to the provisions of any enactment except where the contrary intention is contained in the Interpretation Act itself or the particular enactment to be interpreted by the Interpretation Act. Thus, it was further contended that Section I of the Interpretation Act makes it compulsory to apply Section 15 thereof in the interpretation of the Electoral Act, 2006 because the Electoral Act qualifies as an enactment or Act of the National Assembly. Referring to Black’s Law Dictionary at page 234 on the definition of ‘Enactment’ and the long title of the Interpretation Act, it was submitted that the Interpretation Act ought to apply to Section 141 particularly where there is a clear provision in Section 15 of the Act which governs the manner of interpreting “from” and “where a period is reckoned from a particular event in any enactment.”
It was further contended on the authority of Adefemi v. Abegunde (2004) 15 NWLR (Pt. 895) 1 per Onnoghen J.C.A (as he then was), that the two limitations to the applicability of the interpretation Act as provided in Section I of the Act are not applicable to the Electoral Act, 2006 on account of absence of clear provision to that effect from the two Acts.
Further references were made to section 82 of Decree No. 36 of 1998 which is in pari materia with Sections 132 of the Electoral Act, 2002 and 141 of the Electoral Act, 2006 which section of the Decree was interpreted in the case of Iyirhiaro v. Usoh (1999) 4 N.W.L.R. (pt. 597) 41 per Salami J.C.A at pages 49-50, and Auto Import v. Adebayo (2002) 12 S.C.N.J 124 at 135 lines 10-30 which made it clear that the day of the happening of event (in this case the day of declaration of result of an election), should be excluded in the computation of time within which to present or file Election Petition, as provided by the Interpretation Act.
On the applicability of the Federal High Court (Civil Procedure) Rules, 2000 in the interpretation of the provisions of the Electoral Act on the time for filing petitions, he maintained that Section 141 of the Electoral Act 2006, cannot be construed in isolation without recourse to the Federal High Court (Civil Procedure Rules), 2000 by virtue of the 1st Schedule to the Electoral Act (Paragraph 50 thereof) which makes provisions for the said Rules to be applicable to Election proceedings.
Referring specifically to order 23 Rule I of the said Federal High Court (Civil Procedure) Rules, 2000 which deals with the computation of time, it was contended that the provisions of the above Rules is in pari materia with Section 15 of the Interpretation Act, therefore even if the Interpretation Act does not apply, the Order and Rule above cited should apply in the interpretation of Section 141 of the Electoral Act, 2006 since there is no specific mention of the manner of interpretation of the word “from” and that when the time limited for doing of certain things is not expressly contained in the statute itself, then recourse must be made to the Rules of Court. Atikpekpe v. Joe (1999) 6 NWLR (pt. 607) 428 per Salami J.C.A was cited in support of his contention and to further buttress the fact that without the Interpretation Act, the counting of 30 days within which to file a petition as provided for in Section 141 of the Electoral Act, will start to run from the next day after the Declaration of the Result and further that the Federal High Court (Civil Procedure) Rules 1976 is in pari materia with the 2000 Rules except for the inclusion of Saturdays or Sunday to Order 23(1)(d) that are not in the 1976 Rules.
According to the Learned Counsel for the Appellants, if the principle of interpretation is applied to this appeal, computation of 30 days would start to run from 29th April, 2007? Since the result was declared on the 28th of April, 2007? by form EC8E(1) which is the declaration of Result Form (Exhibit AA) as can be found at page 74 of the Record of Appeal. It was the Learned Counsel for the Appellants’ further contention that the case of Yusuf v. Obasanjo (2003) 16 NWLR (pt. 847) 554 where the Supreme Court had to determine when an amendment or substantial amendment to a petition could be effected having regard to the provisions of paragraphs 14(1), 14(2) and the said Section 132 of the Electoral Act, 2002, is the last straw that breaks the camel’s back and lays to rest the issue of the proper interpretation of Section 132 of the Electoral Act, 2002 and Section 141 of the Electoral Act, 2006.
He asserted further that from the above decision, the Supreme Court in the interpretation of the paragraphs and section dealt with the computation of time within which to present Election petition or file a motion to effect substantial amendment to the petition after the expiration of 30 days within which to file the petition and in the process applied provisions of the Federal High Court (Civil Procedure) Rules, 2000 by virtue of Paragraph 50 of the First Schedule to the Electoral Act, 2002 in computing 30 days within which to present or file Election petition.
The Learned Chief then reeled out the various dicta of the Learned Justices of the apex court particularly those of Tobi J.S.C, Kutigi J.S.C. (now C.J.N) Katsina Alu, Uwaifo and Edozie J.J.S.C on the interpretation of Section 132 of the Electoral Act of 2002 which is the Ipsissima verba of Section 141 of the Electoral Act, 2006 now in contention and the applicability of Section 15(2)(a) of the Interpretation Act and the Federal High Court (Civil Procedure) Rules, 2000 to the interpretation of the said section of the Electoral Act 2002.
He further contended that contrary to the findings of the Tribunal that the day of declaration of result would be counted, the Supreme Court did exclude the day of declaration of the result in computing the 30 days stipulated by Section 132 of the Electoral Act, 2002; which is the same as S. 141 of the Electoral Act, 2006 and urged us to follow the interpretation of Section 132 given by the Supreme Court which is Ipsissima verba of Section 141 of the Electoral Act, 2006 under construction and to hold that the day of declaration will not be reckoned with in the computation of 30 days within which to file petition.
References was further made to the dictum of Alagoa J.C.A in P.D.P v. Haruna (2004) (pt 900) 597 which followed Yusuf v. Obasanjo (Supra) to urge us to discountenance the decisions in Ogbebor v. Danjuma (2003) 15 NWL.R. (pt. 843) 403; Hon. Barrister Kamalia v. Senator Ali Amodu Sheriff (unreported) appeal No. CA/J/EP/GOV/244, 2007 and Action Congress & Anor v. Jonah David Jang (unreported) appeal No. CA/J/GOV/275/2007
He drew our attention to page 19 of Kumaila v. Sheriff (Supra); Akinade v. Nasu (1999) 2 NWL.R (pt. 592) 570 at 581-582 and Adun v. Osunde (2003) 16 NWL.R. (pt. 847) 643 at 661 D-G on the circumstances under which a court may depart from its previous decision and the dictum of Chukwuma Eneh J.C.A (as he then was) in the case of Udo v. State (2005) 8 NWLR (pt. 928) 521 at 535 paras. F – G on the effect of the construction of a particular enactment by the Supreme Court; to urge us to follow Yusuf v. Obasanjo, Iyirhiaro v. Usoh ,Adefemi v. Abegunde, Atikpekpe v. Joe and P.D.P v. Haruna (Supra) in the interpretation of Section 141 of the Electoral Act, 2006.
The Learned Counsel for the Appellants then urged us on these issues not to be persuaded by the submissions of the Respondents that Yusuf v. Obasanjo (supra) was on amendment of petition because the view held by the respondents is not correct as Paragraph 14 of the First Schedule on amendment made reference to Section 132 of the Electoral Act which deals with computation of time within which to file Election petitions.
On Issue 3, which the learned counsel intimated the Court that it is an alternative issue in the event of the failure of Issues Numbers 1 and 2, the kernel of the issue according to counsel is whether (assuming without conceding) that the 28th of April, 2007? (14th April, 2007) which was the day of declaration of result is counted as part of the 30 days within which to file or present a petition, the last day will fall on Sunday, which is regarded as a non dies under the interpretation Act. Section 15(5) of the Interpretation Act was relied upon to pose the question whether the petitioners could file their petition on Sunday, which is regarded as a non dies or public holiday when the Registry of the Tribunal will not open to business in accordance with the Section of the Interpretation Act. The above scenario according to the Learned Chief necessitated the emergence of Order 23 Rule 1(d) of the Federal High Court Rules which provisions he reproduced to submit that the said provisions of Section 141 of the Electoral Act, 2006 have not dealt with situations whereby the last day stipulated by the Act falls on Sunday.
Thus the lacuna in Section 141 of the Electoral Act has been adequately taken care of by the provisions of Order 23 Rule (1) (d) of the Federal Court (Civil Procedure) Rules 2000 which is made applicable pursuant to Paragraph 50 of the First Schedule to the Act which is part of the Act by virtue of the decision in Egolum vs. Obasanjo (1999) 7 NWL.R (pt. 611) 335 at 400 paras. C -D. He referred again to the decisions in Adefemi vs. Abegunde (supra) at page 21 paras. F – H; Iyirhiaro vs. Usoh (supra) at 438 and Atikpekpe vs. Joe (supra), where the Rules of the Federal High Court were given effect to, and urged us to hold that the last day of declaration of result if counted will fall on Sunday, 14th May, 2007 and as such the petition was filed in time.
Alluding finally to Kumaila vs. Sheriff (supra) and INEC vs. Jang (supra) he submitted that these cases did not determine the issue of where the last day as limited by Section 141 of the Electoral Act falls on Sunday but dealt strictly with the issue of whether the day of declaration of result should be computed along with the 30 days within which to file a petition. He then urged us to resolve all the issues in favour of the Appellants allow the appeal and grant all the reliefs sought in the Notice of Appeal.
In their argument on the sole issue formulated for determination, the 1st and 2nd Respondents have extensively encompassed the arguments canvassed by the Appellants on the three issues formulated by them (Appellants) for determination.
Reacting to the issue of the applicability of the Interpretation Act nay the Federal High Court (Civil Procedure) Rules 2000, the Learned Counsel for the 1st and 2nd Respondents countered that the argument that the Interpretation Act and the Federal High Court Rules apply to the interpretation of Section 141 of the Electoral Act is erroneous by reason of the provisos contained in the said Interpretation and Electoral Acts which delimit their applicability respectively.
References were made to the opening phrase in Paragraph 50 of the 1st Schedule to the Electoral Act 2006; the dictum of C.C. Nweze J.C.A. in Muriana Ayantola & Anor. v. Action Congress & Ors. (Unreported) judgment of this court in Appeal No. CA/IL/EP/SH/16A/2008 delivered on the 18th of July, 2008; Section 1 of the Interpretation Act and Ogbebor vs. Danjuma (2003) N. WL.R. (pt. 843) at 403 to submit that by the use of the words employed in Section 141, there is a contrary intention that the provisions of the Interpretation Act will apply to it.
The learned counsel for the 1st and 2nd Respondents maintained that the starting point of the argument of the Learned Counsel for the Appellants should not be from a consideration of the Interpretation Act and the Federal High Court (Civil Procedure) Rules but from the point of whether the wordings of Section 141 of the Electoral Act are clear and unambiguous; and that it is only after the latter had been done that a recourse could be had to the Interpretation Act and Rules of Court as was done by the Court of Appeal in the cases cited to buttress their contention on the non-applicability of the Interpretation Act and the Federal High Court Rules.
The learned counsel then went on to point out that the active words in Section 141 of the Electoral Act are “from” and “within” as were defined in Action Congress vs. Jang, Appeal No, CA/J/EP/GDV/275 2007 by this court (Jos Division) which decision accords with sound reasoning and the sui generis nature of election petitions of which time is of the essence.
He further analyzed all the cases which the Appellants cited in Support of their contention that the Interpretation Act and the Rules of the Federal High Court, 2000, apply to the interpretation of Section 141 of the Electoral Act distinguishing all of them which he submitted are irrelevant because a case is only an authority for what it decides and the ratio of a case can be glimpsed from the issues submitted to the Court for adjudication.
According to learned counsel, the issue in Ogbebor vs Danjuma was the time limit for the presentation of a petition under Section 132 of the Electoral Act, 2002 which is in pari materia with Section 141 of the Electoral Act, 2006 and whether resort to the Interpretation Act was necessary and the Court of Appeal held that time would start to run from the date of declaration of the Election results without any need for the resort to the Interpretation Act.
On the call on us by the Appellants to depart from the decisions in Kumaila vs. Sherrif and Action Congress vs. David Jang, he also cited the holding of this Court in Kumaila vs. Sherrif refusing the call for such departure from the earlier case of Ogbebor vs. Danjuma and the circumstances under which a Court can depart from its earlier position to urge us to be persuaded by the reasoning of the Court in Kumaila vs. Sherriff where it refused to depart from its earlier position.
On the contention by the Appellants that the Court should construe Section 141 of the Electoral Act in conjunction with the Interpretation Act and the Federal High Court (Civil Procedure) Rules 2000, and hold that the computation of time for the filing of a petition excludes the date of declaration of the result, learned counsel for the 1st and 2nd Respondents asserted on the authority of Kumaila vs. Sherriff CA/J/EP/GOV/244/2001 delivered on 21st January, 2008 by the Court of Appeal, which decision he cited copiously; Ogbebor vs. Danjuma (2003) NWLR. (pt. 843) 403 and Action Congress vs. Jang (supra); that the above decisions are to the effect that the provisions of Section 141 are so clear and unambiguous as to make any resort to any external aid unnecessary.
Replying to the submissions on Issue Number 3, the learned counsel for the 1st and 2nd Respondents asserted that if we agree that the Interpretation Act and the Federal High Court (Civil Procedure) Rules, 2000 do not apply to the interpretation of Section 141 of the Electoral Act, 2006, then a petition filed on Monday the 14th May, 2007 is not competent.
Furthermore, learned counsel for the 1st and 2nd Respondents posited that the arguments of Appellants on this issue are erroneous for the following reasons:-
i. That if we agree that the provisions of the Interpretation Act and the Federal High Court Civil Procedure Rules, do not apply to the Interpretation of Section 141 of the Electoral Act and it is the Interpretation Act that makes provision for an act which ought to be done on Sunday to be done the next day then it would not matter whether 13th of May, 2007 was a Sunday or not.
ii. That the operative words in Section 141 are “within” and “from” which mean that an unsuccessful candidate who conceives that he has a ground to challenge the return of the successful candidate must file his Petition within a period of 30 days from the date of declaration of result. He must act diligently. He need not wait till the last day only to wake up to the realization that it was a Sunday. This point, it was submitted accords with the sui generic nature of Election Petition of which time is of the essence and that it cannot be an excuse for a Petitioner to wait for 29 days and upon realizing that the 30th day is a Sunday, file his Petition on the 31st day. To urge the court to hold otherwise, (as urged by the Appellants) is to urge us to either assume the role of the legislature by amending the period under Section 141 to read “31” days or to unwittingly grant the Appellants an extension of time within which they could file their Petition.
iii. That the most that can be said (which is not conceded) is that the situation in which the 30th day for the filing of a Petition falls on a Sunday will without a recourse to the Interpretation Act or the Federal High Court Rules work hardship on a potential Petitioner. But as stated earlier, a diligent Petitioner need not wait till the last day. Furthermore, hardship alone is not enough reason for a Court to refuse to give effect to the clear and unambiguous words of a statute. See Adisa vs. Oyinlola (2000) 10 NWLR. (Pt.674) 116.
iv. That the point must be made that the history of electoral laws in Nigeria is replete with provisions which were considered to be harsh but that in all these instances the Courts were hardly called upon to usurp the functions of the legislature and in the few instances that such invitations were extended, the Judiciary promptly and commendably too, rejected the invitation.
Examples in this regard were given to include:
(a) Under the provisions of Section 42(3) and 44(2) of Decree 18 of 1992, a Tribunal which had found that the election of the successful candidate was invalid could not declare as elected the candidate with the next highest number of votes even if the circumstances of the Petition were such as to make such a declaration desirable. The Tribunal could only cancel the entire election and order a bye-election. The hardship posed by this provision on a successful petitioner was captured by the Court in Oputeh vs. Ishida (1993) 3 N WL.R. (pt. 279) 34.
(b) Under the provisions of Section 2 Schedule 3 of Decree 37 of 1987 a Petition had to be filed within one month of the holding of the election.
This meant that even when the results of the election were only announced over a month after the holding of the election, any petition filed outside of the one month period after the holding of the election would be incompetent. The hardship posed by this scenario was captured by the court in Ezeobi vs. Nzeka (1989) 1 N WL.R. (pt. 100) 478, he submitted.
It is also pertinent to note that just like the 1st and 2nd Respondents, learned counsel for the 3rd – 11th Respondents also covered and encompassed the submissions of the Appellants in the argument of the Sole Issue formulated by the said counsel for the 3rd – 11th Respondents. Thus Mrs. Arinze the learned counsel for the 3rd – 11th also drew our attention to the provisions of Section 141 of the Electoral Act, 2006 and the operative words therein which are “shall” and “within” as defined at page 1602 of Black’s Law Dictionary with pronouncements Sixth Edition; Ekekekgbo vs. Fiberisima (1994) 3 NWLR. (pt. 335) 707 at 731 where the word “within” was also defined relative to time in a statute and Ogbebor vs. Danjuma (2003) 15 NWLR. (pt. 843) 403 at 434 – 435, to submit that by the provisions of S.141 of the Electoral Act, 2006 the effect is that election petition must be presented any time before the expiration of 30 days from the date of declaration of result.
The Learned Counsel for the 3rd – 11th Respondents also referred to the cases of Alataha vs. Asin (1999) 5 N WL.R. (pt. 601) 32 per Salami J.C.A. which was upheld along with the earlier cited cases in the recent cases of Kumaila vs. Alimodu Sherriff & Ors, Appeal No. CA/J/EP/GOV/244/2007 and the Action Congress & Anor. VS, Jonah David Jang, Suit No. CA/J/EP/GOV/275/2007 and which also established that time starts to run from the date of declaration of results, to submit that the petition arising from the April, 14th 2007 election in question must be presented anytime between 14th April, 2007, and the 13th May, 2007 following the arithmetical calculation of the days between 14th April, 2007 and the day the petition was filed.
It was further submitted by the Learned Counsel for the 3rd – 11th Respondents that the clear and unambiguous provisions of Section 141 of the Electoral Act, 2006, has clearly obviated any reference to the Interpretation Act and this Court is bound to give the words used their ordinary meanings. Ogbebor VS. Danjuma (supra) at 462 D – H per Muntaka Coomassie J.C.A. (as he then was) referred.
Still on the Interpretation Act, the Learned Counsel referred to Section 1 thereof submitting that the petition is statute barred having been filed outside the thirty (30) days period from the date of declaration of result and accordingly, the Tribunal was robbed of the jurisdiction to entertain the petition. He finally urged the Court to dismiss the appeal in its entirety.
I have taken time to elaborately set down the arguments of Counsel on all the issues formulated for determination and am of the firm view that these issues dovetail on one another on the crucial question in this appeal, as to whether the learned members of the Tribunal were right in their interpretation of Section 141 of the Electoral Act, 2006, by holding that in the computation of the 30 days within which to present an election petition, the date of the declaration of results of the election should be included and further that the Interpretation Act and the Federal High Court (Civil Procedure) Rules are not applicable in the computation and interpretation exercise.
As we had said elsewhere in this Court, the wordings of Section 141 of the Electoral Act, 2006, should not generate any interpretative controversy particularly if the drafting technique employed by the Law makers is microscopically examined along with the operative words in that section. However, as can be gleaned from the arguments of learned counsel for the Appellants, further divergent opinions on the vexed issue of computation of time for the presentation of election petitions have been thrown up following the provisions of Paragraph 50 of the Schedule to the Electoral Act and Sections 1 and 15 of the Interpretation Act the decision in the Supreme Court case of Yusuf vs. Obasanjo and other cases following thereafter where Section 132 of the Electoral Act, 2002, as replicated ipsissima verba in Section 141 of the Electoral Act, 2006, was interpreted.
One would have thought that at least by our decisions in Muraino Ayantola & Anor. vs. Action Congress & Ors. Appeal No. CA/IL/EP/SH/ 16/2008 and Prince Kola Bukoye & 48 Ors. vs, Action Congress &: Anor, Consolidated with INEC & 48 Ors. vs. Action Congress & 3 Ors. unreported judgments delivered on the 18th day of July, 2008 Per C.C. Nweze and I.I. Agube J.J.C.A.; the question of computation of time for presentation of election petitions and the applicability of the Interpretation Act and the Federal High Court (Civil Procedure) Rules, 2000, to the interpretation of Section 141 of the Electoral Act, 2006, would have been laid to rest at least within this jurisdiction, but alas! this the controversy still persists and rages on.
For the avoidance of doubt, and even at the risk of repetition, we shall revisit what we said in the two earlier decisions afore-cited if only to assuage the agitating spirit of those who still feel strongly that the Interpretation Act and the Federal High Court (Civil Procedure) Rules 2000, must be applied willy-nilly in the interpretation of Section 141 of the Electoral Act, notwithstanding the tenor of the provisions of the said Section of the Electoral Act.
As the Learned Counsel for the 1st and 2nd Respondents rightly argued, in the resolution of the issues formulated for determination, our first point of departure should be a thorough examination of the exact wordings of Section 141 of the Electoral Act, in order to decipher whether they are clear and unambiguous and where they are, then this Court and indeed, the lower tribunal had/has no business foraging for external aids or tools for their interpretation.
As one of our legal sages Eso J.S.C. in Attorney-General, Ogun State vs. Alhaja A. Aberuagba & Ors. (1985) 4 SC. (Pt.1) 288 at 283 succinctly and admirably warned and directed when confronted with a similar interpretational problem as has been posed in the appeal herein:
“in the interpretation of Statutes, the ordinary literal meaning must first be examined. If the words are clear and unambiguous then the ordinary literal meaning must be given to them, for then, the intention of the law maker has not been obscured. It is only where there is doubt or ambiguity, that recourse is made to other canons of interpretation. See Awolowo vs. Shagari (1979) 6 – 9 S.C. 51. “In the same vein, Karibi- White J.S.C. another eminent emeritus Justice of the Supreme Court, put it even more explicitly when he brilliantly intoned in the celebrated case of in I.B.W.A. vs. Imano (Nig.) Ltd. & Anor. (1988) 7 S C.NJ (Pt.. II) 326 at 344 – 345:-
“It is a fundamental rule for the interpretation of Statutes that where the words used are clear and unambiguous, they should be construed as they are and given their ordinary plain meaning. See Jammal Steel Structures Ltd. vs. A.C.B. Ltd. (1973) 1 All NL.R. (Pt. 2) 208. It is not in such circumstances permissible to go beyond what the words themselves actually convey and to consider what other things they are capable of and could mean. This is because where the provision is unambiguous and clear they contain the intention of the law maker and no words inferred aliunde are required to discover the intention which have been fully expressed in the words used. This is the literal rule and the golden method of interpretation. ”
Going by what the eminent jurists have held above, it is clear that it is only where the words used in Section 141 of the Electoral Act, 2006 are in themselves imprecise and ambiguous and are incapable of declaring at best the intention of the legislature if the words are expounded in their natural and ordinary senses, that this Court or the Tribunal can resort to other rules of interpretation or interpretative aids like the Interpretation Act or the provisions of the Federal High Court (Civil Procedure) Rules.The crucial question therefore that calls for an answer herein is whether from the wordings of the Section, there is such need for a resort to the Act and Rule as canvassed by the Learned Counsel for the Appellants. Put differently, were the learned members of the Tribunal right to have held that the Interpretation Act and the Federal High Court (Civil procedure) Rules do not apply in the interpretation of Section 141 of the Electoral Act which fell thereat and has fallen for interpretation herein? To answer the question, we shall call on the Section to speak for itself 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” (underlining mine).
As I said earlier, in Prince Kola Bukoye & 49 Ors. v. Action Congress & Ors. (supra), the provisions of Section 141 as reproduced above are precise, clear and unambiguous. From the tenor of the provisions, there would have been no need to engage in any hairsplitting adventure into the rules of interpretation of statutes or call in aid the Interpretation Act and Federal High Court (Civil Procedure) Rules, 2000, in order to decipher the intendment of the legislature in the use of the phrase “within 30 days from the date the result of the election is declared. “, If the underlined words of the Section in question, are expounded in their natural and ordinary senses, it would be glaring that the intention of the legislature is to make the computation of the 30 days limitation for the presentation of election petition to commence running from the date of declaration of the election result.
At least, this position is supported by the recent decisions of this court in election petition appeals which have come before us. See per Ngwuta J.C.A. in Action Congress & Anor. vs. Jonah David Jang (unreported) Appeal No. CA/J/EP/GOV/275/2007 and Mohammed Umara Kumaila VS. Senator Ali Modu Sheriff & 3 Ors. Appeal No. CA/J/EP/GOV/244/2007 delivered by R.D. Muhammad J.CA which followed Ogbebor vs. Danjuma (2003) 15 NWLR. (Pt. 843) 403.
In Kumaila vs. Senator Sheriff (supra) at page 11 – 12, the learned Justice quoted with approval “Maxwell on Interpretation of Statutes” 12th Edition at page 28, where the learned authors stated that the first and most elementary rule of Interpretation of statutes is that words and phrases of technical legislation are used in their technical sense if they have acquired one, and otherwise in their ordinary meaning. The second rule is that the phrases and sentences are to be construed according to rules of grammar as the literal construction is the safest rule as written by Lord Evershed M.R.
Thus, if there is nothing to modify or qualify a language which a statute contains, it must be construed in the ordinary and natural meaning of the words and sentences as the safer and more correct approach in dealing with a question of construction is to take the words themselves and arrive if possible at the meaning without, in the first place, referring to cases.
It is upon the above basis that we shall resort to, and call in aid the Webster’s Ninth Collegiate Dictionary, 1991 Edition to give us the definitions of the operative words in Section 141 of the Electoral Act which are “within” 30 days and “from” the date the result of the election is declared. At page 1355 of the text, the word ‘within’ is defined as: “preposition used as a function word to indicate enclosure or circumstance in the limits or compass of; as: ‘before the end of’; ‘not beyond,’ ‘to the inside of’, ‘being inside’, ‘not beyond the limitation’.”
“From” on the other hand, is defined as “a function word to indicate a starting point: (as (1) where a physical movement begins),’ (2) a starting point in measuring or reckoning or in a statement of limits.”
From these definitions, there is no doubt then that by the provisions of Section 141 of the Electoral Act, election petition shall be presented before the end or not beyond the limitation period of 30 days. It is also clear that in the calculation of the 30 days limitation period, the date of declaration of the result of the election is inclusive as can be gleaned from the use of the word ‘within.’
Again, it goes beyond argument that the starting point of reckoning, the 30 days limitation period for presentation of election petitions, also is the date of declaration of the election result. See also “Black’s Law Dictionary With Pronunciation” 6th Edition at page 1602, on the definition of the word “within” which is that when used relative to time the word connotes “before at” or “before”, “at the end of’, “before the expiration of’, “not beyond”, “not exceeding” and “not later than.”
Curiously, not withstanding these clear and simple grammatical meanings of the operative words as used in Section 141 of the Act, the learned Chief on behalf of the Appellants still insists that we invoke the provisions of the Interpretation Act and the Federal Court (Civil Procedure) Rules by virtue of Paragraph 50 of the 1st Schedule to the Electoral Act, 2006.
We shall now take a cursory look at the particular Sections of the Act and the Rules upon which the Learned Chief anchors his submissions. Section 1 of the Interpretation Act provides thus:-
“1. 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.”
Section 15(2)(a) thereof further provides thus:- “A reference in an enactment to a period of days shall be construed where the period is reckoned from a particular event as excluding the day on which the event occurs. ”
As for the long title of the Interpretation Act which the Learned Chief also urges us to take into consideration in the resolution of the question of construction of Section 141 of the Electoral Act, it states as follows:-
“An Act to provide for the construction and Interpretation of Acts of the National Assembly and certain other instruments and for purposes connected there with.”
On the other hand, paragraph 50 of the 151 schedule to the Electoral Act states thus:-
“Subject to the express provisions 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 modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the Petitioner and Respondent were respectively the plaintiff and the defendant in an ordinary civil action. ”
The above forms the basis for the invitation on us to invoke Order 23 Rule 1(b) of the Federal High Court (Civil Procedure) Rules which stipulates thus:-
“1. Where by any written Law or any special order made by the Court in the course of any proceedings, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding, and the time is not limited by hours, the following rules shall apply;
(a) …………………
(b) The act or proceeding shall be done or taken at latest on the last day of the limited time.
(c) …………………
(d) When the time expires on a public holiday, Saturday, or Sunday the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day after words not being a public holiday, Saturday or Sunday. ”
I have looked at the provisions of the Interpretation Act particularly the long title and Sections 1 and 15(2)(a) thereof and there is no doubt that the Act should apply to the construction and interpretation of Acts of the National Assembly and certain instruments and purposes connected therewith. It is also indubitable that the Electoral Act, 2006 is an Act of the National Assembly crafted for purposes of the conduct of elections in this country.
However, as the Learned Counsel for the Respondents have rightly argued, the Act by Section 1 thereof has a self imposed proviso or limitation just like Paragraph 50 of the 1st Schedule to the Electoral Act. Whereas the Interpretation Act is generally applicable to Acts or enactments of the National Assembly, it is clear that where there is a contrary intention appearing in the Act or the Act or enactment which is subject to interpretation, an exception to the general rule shall be inferred and the Interpretation Act shall not be applicable.
In the same vein, Paragraph 50 of the 1st Schedule to the Electoral Act also makes the applicability of the Federal High Court (Civil procedure) Rules, 2000, subject to the provisions of the Electoral Act. It is therefore clear that both the Schedule and Federal High Court (Civil Procedure) Rules are subordinated to the Electoral Act and unless there is no adequate provision under the Act, there cannot be a resort to the Federal High Court (Civil Procedure) Rules.
Now, a peripheral or cosmetic look at the provisions of the Interpretation Act and the Electoral Act may give a false impression that there are no clear provisions in both the Electoral Act and Interpretation Act precluding the applicability of the Interpretation Act in the interpretation of the Electoral Act.
Thus, my Learned Senior brother now of the Supreme Court, Onnoghen J.S.C., may have been perfectly right by his holding in the case of Adefemi v. Abegunde (2004) 15 NWLR. (pt 895) 1 that he had gone through the Electoral Act, 2002 and the First Schedule thereto together with the Practice Direction No. 2 of 2003; made there under, but did not see any provision whatsoever which stipulates that the interpretation of the Electoral Act should not be governed by the Interpretation Act. 1 for one may have been tempted to take the same view but for the fact that the Interpretation Act uses the operative words “in so far as the contrary intention appears in this Act or the enactment in question.”
The pertinent question to ask again is, how do we find out whether a contrary intention appears in an enactment? Must it be by express provision of the Interpretation Act or the enactment sought to be interpreted – in this case – the Electoral Act? I submit that the intention of the Legislature may not be found in the construction of an isolated portion of the Act or enactment sought to be interpreted but from a communal reading of the whole enactment where necessary.
As I said elsewhere, in Abiodun vs. C.J Kwara State & 3 Ors. (2007) 18 NWLR. (pt. 1065) 109 at 167 – 168 paras. H – E, relying on Uwaifo J.S.C. in Dantosho v. Mohammed (2003) 4 N.W.L.R. (pt. 817) 457 while construing Section 28(5) of the Kwara State Local Government Law on the time for the setting up of an impeachment panel by the Chief Judge:-
“It is the law that in construing any provision of a statute, a court ought, and is indeed bound to consider any other parts of the statute which throw light upon the intention of the legislature and which may serve to show that the particular provision ought not to be construed as it would if considered alone without reference to such other parts of the statute. Also, a subsection of a section standing alone cannot be read with full comprehension. A subsection will usually have a connecting relationship with other subsections of the section. A result contemplated by one subsection may not have occurred at all upon a true consideration of the available facts if other subsections create certain conditions for their result. Not to recognize this is not only to read that particular subsection in the abstract but also to disregard the proceedings or subsequent conditions for a better cohesive understanding of the intention of the lawgiver. Thus, a section of a statute having subsections must be read as a whole and related sections must be read together. See Aqua Ltd. vs. Ondo State Sports Council (1988) 4 NWLR. (Pt. 91) 622 at 641; Tukur vs. Govt. of Gongola State (1989) 4 NWLR. (pt. 117) 517 at 579; Salami vs. Chairman, L.E.D.B. (1989) 5 NWL.R. (Pt. 123) 539 at 550 – 551 and Hon. Adeleke & 2 Ors. VS. Oyo State House of Assembly & 17 Ors. (2006) 16 NWLR. (pt. 1006) 608.
Again, as A.B. Wali J.S.C. stressed while interpreting Rules 15 and 16 of Order 6 of the Lagos State High Court Rules, the object of interpreting any statute or instrument is to ascertain the intention of the Legislature that had made or that of the parties that had drawn it. This is done by reading the words used in the particular section of the Statute or the documents. Where the meaning is not clear by so doing, the other sections of the Statute, or the whole of it, shall be read together to ascertain the meaning. See Schroder vs. Major (1989) 2 S.C.N.J. 210 at 215.
In the appeal at hand, a community reading of the provisions of Section 141 of the Electoral Act with other sections and even some of the paragraphs of the First Schedule to the Act would reveal that Section 141 is a special provision which in its unambiguous, lucid and precise terms envisage that the 30 days limitation period within which to file election petition shall start to run from the date the election result is declared.
This provision is in tandem with the sui generis nature of election proceedings as encapsulated in Section 148 of the Electoral Act, 2006, which is to the effect that time is of the essence and accordingly, notwithstanding the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999, an election petition and appeal arising there from under the Act shall be given accelerated hearing and shall take precedence over all other cases or matters before the Tribunal or Court.
By parity of reasoning, the provisions of paragraphs 23 to 25 of the 1st Schedule to the Electoral Act go to buttress the fact that the Act exempts the application of the Interpretation Act and the Federal High Court Civil Procedure Rules to its interpretation particularly on the issue of time for the filing and hearing of petitions.
For example, hearing of election petitions are supposed to be from day to day until concluded and where the Chairman of a Tribunal or Presiding Justice of the Court beings the hearing of a petition or appeal and is disabled on grounds of illness or otherwise, another Chairman or Presiding Justice may be appointed to conclude the hearing.
Above all, and this appears to have sealed the doom of the argument on the applicability of the Interpretation Act and Federal High Court Rules to the interpretation of Section 141 of the Electoral Act, Paragraph 25 of the 1st Schedule to the Act expressly provides thus:-
“25(1) After the hearing of an election petition has begun, if the inquiry cannot be continued on the ensuing day or, if that day is a Sunday or Public Holiday, on the day following the same, the hearing shall not be adjourned sine die but to a definite day to be announced before the rising of the Tribunal or Court and notice of the day to which the hearing is adjourned shall forthwith be posted by the Secretary on the Notice Board
“(2) The hearing may be continued on a Sunday or on a public holiday if circumstances dictate. ”
From the foregoing, it is clear that the provisions of the Interpretation Act particularly Section 15(2) and Order 23 Rule (1)(d) are even at variance with the Electoral Act. Since Paragraph 50 of the 1st Schedule is subject to the express provisions of the Act, the provisions of the Federal High Court Rules which by implication are subordinated to the Electoral Act can only be applicable to the Act where the Act permits and there are no parallel provisions in the said Act. By virtue of its inferior status, where there is a conflict between the Rules and the Act the provisions of the Act ought to prevail. See Yusuf v. Obasanjo (2003) 16 NWLR. (pt. 847) 603 paras. A-D. In this case since the Electoral Act has provided in clear terms on when the time to file Election petition shall start to run, any provisions of the Federal High Court as to computation of time in that respect must defer to the superior authority of the Act.
In the same vein, from the provisions of Section 141, 148 and paragraphs 23 – 25 of the First Schedule Electoral Act, it is clear that a contrary intention appears in the Act that the Interpretation Act shall apply to the interpretation of the Electoral Act, 2006.
From all that we have said and having carefully scrutinized the Interpretation Act pari passu with the Electoral Act, it is clear that whereas the Interpretation Act is a Statute of general application to the interpretation of Acts or Enactments of the National Assembly, Section 141 of the Electoral Act is a special and specific provision governing the time for the presentation of election petition. Accordingly, the basic position of the Law on the interpretation of statute is as expressed in the latin maxims. “Generalia specialibus non derogant” meaning – general things do not derogate from special ones and “specialia generalibus derogant” meaning special things derogate from the general one. See again, the dictum of Wali J.S.C. in Schroder vs. Major (supra) at 215 and the case of Kraus Thompson Organization vs. N.I.P.S.S. (2004) 17 NWLR. (Pt. 901) 44 at 65.
The rationale behind the enactment of a special legislation like the Electoral Act, 2006 and specifically Sections 141, 148 and paragraphs 23 – 25 of the 1st Schedule thereof, has been vividly captured in the immortal words of the cerebral Pats-Acholonu J.C.A. (as he then was but now of blessed memory), in the case of Balogun vs. Odumosu (1989) 2 NWLR. (pt. 582) 590, 599 when he posited:-
“The issue of time to complete filing of all processes relating to hearing and determination of an election petition was upper most 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 legislature that parties strike 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 late. ”
See Orubu vs. INEC (1988) 5 NWLR. (pt. 94) 323; Ogu VS. Ekweremadu (2006) 1 NWLR. (pt. 96) 255; Obasanya vs. Babafemi (2000) 15 NWLR. (pt. 689)1;
Chime vs. Onyia (2009) 2 NWLR. (pt. 1124) 1 at 37 – 38 and Aregbesola VS. Oyinlola (2008) All FWLR. (pt. 436) 2018.
Accordingly, having carefully analyzed the provisions of the Acts and the Rules in contention, I am of the candid view that in the face of the clear provisions of Section 141 of the Electoral Act, 2006, the Interpretation Act and the Federal High Court Rules cannot be invoked in the interpretation of the Section of the Electoral Act in question. Issue Number One (1) shall therefore be resolved in favour of the Respondents.
Having said that, the next issue is whether the learned members of the Tribunal were wrong in not following the decision in Yusuf vs. Obasanjo (2003) 16 NWLR. (pt. 847) 554? The Appellants have contended that from the decision in that case, the Supreme Court interpreted Section 132 of the Electoral Act, 2002 in the course of interpreting paragraphs 14(1) and 14(2) of the First Schedule made there under on when substantial amendment or amendment shall be effected by petitioners and in the process dealt with the computation of time within which to present a petition. Learned Counsel for the Appellants also insisted that the Supreme Court in the course of interpretation specifically applied the provisions of the Federal High Court (Civil Procedure) Rules and excluded the date of declaration of the result that predicated the filing of the petition.
The Respondents on the other hand, have countered that the cases of Yusuf vs. Obasanjo (supra); P.D.P. vs. Haruna; Adefemi vs. Abegunde; Iyirhiaro vs. Usoh and Awuse vs. Odili (supra) all cited by the Appellants do not apply to the interpretation of Section 141 of the Electoral Act on the time within which to file or present a petition. They have submitted that a case is only an authority for what it decides, in other words, the ratio decidendi of the Supreme Court which ought to bind this Court, can be glimpsed from the issues submitted to the Court for adjudication.
What then was the “ratio decidendi” of Yusuf vs. Obasanjo?
Before answering this question, it is necessary to define what “ratio decidendi” is. “Black’s Law Dictionary”, 7th Edition by Bryan A. Garner et. al. at page 1269 defines the term as:-
“(Latin ‘the reason for deciding’) 1. The principle or rule of law on which a court’s decision is founded. 2. The rule of law on which a later court thinks that a previous court founded its decision; a general rule without which a case must have been decided otherwise often shortened to ratio”
Professor Glanvile Williams, the learned author of the text “Learning the Law” 11th Edition, 1982 at page 75 who is quoted in the Law Dictionary said of the term inter alia:-
“The phrase ‘the ratio decidendi of a case’ is slightly ambiguous. It may mean either
(1) the rule that the judge who decided the case intended to lay down and apply to the facts, or (2) the rule that a later court concedes him to have had the power to lay down. ”
Rupert Cross & J.W. Harris in their book “Precedent in English Law” 4th Edition (1991) at pages 65 – 66 on their part have laid down the modalities for the ascertainment of the ‘ratio decidendi’ of a case when they posited:-
“There are two steps involved in the ascertainment of the ratio decidendi .,..’ First it is necessary to determine all the facts of the case as seen by the Judge; secondly, it is necessary to discover which of those facts were treated as material by the judge.”
It is pertinent to note that the concept of ‘ratio decidendi’ has generated great debates from legal pundits in both the academia and the bench. See for instance Karibi-Whyte J.S.C. in his article titled “The Tyranny of Judicial Precedents” published in the (1990) Edition of the Calabar Law Journal, Vol. III, No. 1; where he defined the term thus: “The ratio decidendi, consists of the material facts of a case plus the conclusion.” See also Lord Simmonds in Jacob v. LC.C. (1950) A.C. 361 and Rupert Cross on “The Ratio” 20 MLR 124 – 126; Julius Stone “The Ratio of the Ratio Decidendi” (1959) 22 MLR 597 and Lloyd et. al. Introduction to Jurisprudence page 1164-1174.
As has been shown from the different positions taken on the definition of ratio decidendi, the term has been the subject of various theories that could lead an undiscerning mind more into a quandary as to its exact meaning, the more these theories are considered, but suffice it to say that our apex Court has over the years illumined the otherwise perplexing and beclouded paths of discerning the ratio of a case. Accordingly, I shall invite Karibi-Whyte J.S.C. who was both in the academia and had reached the apogee of our adjudicatory system to once more enlighten and guide us to the Promised Land on modalities for determining the ratio decidendi of a case as he did in Savanah Bank of Nigeria Ltd. v. Pan Atlantic Shipping and Transport Agencies Ltd. & Anor. (1987) 1 S.C. 198 AT 278 – 279 where the erudite law Lord and jurisprudential guru advised:-
“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. See Bucknor Maclean vs. Inlaks Ltd. (1980) 8 – 11 S. C. p.p. 23 – 25. The ratio decidendi of a judgment consists of the material facts of the case plus the conclusion.
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.
It is accepted that these rules be observed in the interest of uniformity, consistency and certainty in the determination of disputes. It is well settled rule of precedent in the administration of justice in our courts that a case is only an authority for what it actually decided. See Quinn vs. Leathem (1910) A.C 495 at P. 506”
The Supreme Court again, in N.A.B Ltd. vs. Barr. Eng. (Nig.) Ltd. (1995) 8 NWLR. (pt, 413) reported also in 2 Q.R.R, 137 further stressed and clarified the basic position of the law on this vexed issue of ratio decidendi when their Lordships explained 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. A statement made in passing by a Judge which is not necessary to the determination of the case at hand is not a ratio decidendi of the case, but obiter dictum and it has no binding effect for the purpose of Judicial Precedent.”
Going by what the learned authors and judicial gurus have said and if we agree that a case is only an authority for what it decided and that the ratio can be glimpsed only from the issues submitted to the court for determination, then what were the issues before the Supreme Court and the reasons for their determination. We shall fall back on the learned Justice of the apex court, Tobi J.S.C, who delivered the lead Judgment, to tell us. At page 605 paragraph F of (2003) 16 N.W.L.R. (pt. 847), His Lordship admirably and succinctly stated the gravamen of the case before the court inter alia:-
“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 zeroes on the construction this court will place on it. In view of the centrality and importance of the paragraph, I reproduce the provisions for ease of reference. ”
From the words of my Lord which the learned counsel for the Appellants has been gracious enough to reproduce in the Appellants’ Brief, it is beyond peradventure that the ratio decidendi was predicated on the interpretation of Paragraph 14(1) and (2) of the First Schedule to the Electoral Act, 2002, which paragraph is reproduced hereunder as follows:-
“14(1) Subject to sub-paragraph (2) of this paragraph, the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words ‘any proceedings’ in those provisions there were substituted the words ‘the election petition or reply’.
(2) After the expiry of the time limited by –
(a) Section 154 of this Act for presenting the election petition, no amendment shall be made:-
(i) Introducing any of the requirements of sub-paragraph (1) of paragraph 4 of this Schedule not contained in the original election petition filed, or
(ii) Effecting a substantial alteration of the ground, for or the prayer in, the election petition; or
(iii) Except anything which may be done under the provisions of subparagraph (3) of this paragraph, effecting a substantial alteration of or addition to, the statement of facts relied on to support the ground for, or sustain the prayer in the election petition; and
(b) Paragraph 12 of the Schedule for filing the reply, no amendment shall be made –
(i) Alleging that the claim of the seat or office by the petitioner is incorrect or false; or
(ii) Except anything which may be done under the provisions of subparagraph (3) of this paragraph, effecting any substantial alteration in or addition to the admissions or the denials contained in the original reply filed, or to the facts set out in the reply. ” Having established that the reason for the decision was the interpretation of paragraph 14(1) and (2) of the 1st Schedule to the Electoral Act, 2002, the next question following the guide lines laid down in the authorities earlier cited, is what were the issues for determination before the Supreme Court in Yusuf vs. Obasanjo?
That answer is discernable from pages 595 paras. G – H to 596 paras. A – C of the Report and I shall make bold to reproduce them hereunder for purposes of clarity inter alia, per Tobi J.S.C.:-
“The appeal before us is in respect of the 5th June, 2003 ruling of the Tribunal. As usual, briefs were filed and exchanged. The Appellants formulated the following issue for determination:-
“Whether the Court of Appeal misdirected itself on the applicable law and should have granted the prayer for joinder of the 57th Respondent and/or any of the amendments Nos. (1), (2), (4), (5), (11), (13), (15) and (17) sought in the motion dated 21st May, 2003 and determined in their Lordships ruling of 5th June, 2003.”
“The 1st Respondent formulated the following issue for determination:-
“Whether the court below has the jurisdiction to make any order amending the petition in the manner sought by the Appellant when the time within which the amendment sought could be granted had lapsed and the right to amend the petition had become extinct. ”
“The 2nd Respondent formulated the following issue for determination:-
“Whether the lower Court was right in refusing to grant some of the amendments sought by the Appellants having regard to the provisions of Section 132 and paragraph 14(1) and (2) of the 1st Schedule to the Electoral Act, 2002.”
“The 40th to 55th Respondents formulated the following issue for determination:-
“Whether the Court below has the jurisdiction to make any order amending the petition of the Appellant.”
In paragraph D at page 596 of the Report, the learned Justice again harped on and seemed to emphasize the gravamen of the case before the court when he said: “It appears to me that all the issues formulated by the parties are basically the same as they zero on the amendments sought by Appellants and subsequent decision of the tribunal. ”
From the foregoing facts of the case and issues formulated for determination, it is clear that the pith and substance, and in the words of the eminent Tobi J.S.C.:- “the cynosure,” “first line” and “bottom line” of the appeal before the Supreme Court in Yusuf vs. Obasanjo zeroed on the construction of paragraph 14(1) and (2) of the 1st Schedule to the Electoral Act, 2002, which paragraph is replicated ipsissima verba in the current paragraph 14(1) and (2) of the 2006, Electoral Act. For the avoidance of doubt, I shall reproduce excerpts of the 2006 Schedule which is salient to the determination of this appeal.
“14(1) Subject to sub paragraph (2) of this paragraph, the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words “any proceedings” in those provisions there were substituted for the words “the election petition or reply. ”
“(2) After the expiration of the time limited by:
(a) Section 141 of this Act for presenting election petition, no amendment shall be made:
(i) ………………………………
(ii) ………………………………
(iii) ………………………………
(b) ………………………………
(i) ………………………………
(ii) ………………………………
(iii) ………………………………”
There is no doubt that the provisions of paragraph 14(1) and (2) of the 1st Schedule to the Electoral Act as reproduced above envisages the applicability of the Civil Procedure Rules of the Federal High Court to amendments of Election Petitions and the concomitant Replies thereto. Also, there is no doubt that paragraph 14(2) cannot be interpreted in isolation without a determination of the limitation period for the presentation of Election Petitions under Section 132 or 141 of the 2002 and 2006, Electoral Acts. This may have necessitated the distinguished emeritus Uwaifo J.S.C. to veer into what has culminated in the seemingly unending controversy as to whether the case of Yusuf vs. Obasanjo is a binding authority on our interpretation of Section 141 of the Electoral Act.
I quote my Lord Uwaifo verbatim at page 629 paras. E – G as follows:-
“Section 132 provides that: ‘An election petition may be presented within thirty (30) days from the date the result of the election is declared’ It is not in dispute that the Presidential election result in question was declared on 22nd April, 2003. The Petitioners in this case had 30 days within which to appeal against it. The 30 days will be calculated from 23rd April, 2003 to end on 22nd May, 2003. Paragraph 50 of the First Schedule to the Act provides that subject to the express provisions of the Act, the Civil Procedure Rules of the Federal High Court will apply, mutatis mutandis, in relation to an election petition. Order xii, r 1 of the said Rules provides inter alia:-
1. ……………………
(a) ……………………
(b) ……………………”
Then his Lordship went on to cite Section 15(2)(a) of the Interpretation Act (Cap. 192) Laws of the Federation of Nigeria, 1990 which makes similar provisions and the case of Nnonye vs. Anyichie (1989) 2 NWLR. (pt. 101) no at 120 to hold that the petition was filed in time and any amendment must be made not later than 22nd May, 2003, which was the last day of the limited time. Edozie J.S.C. in his contribution to the judgment toed the line of Uwaifo J.S.C. when he stated in part:
“As stated earlier, the election result was declared on 22nd April, 2003, the Appellants filed their petition on 22nd May and the motion for amendment under consideration was filed on 21st May, Reckoning from 22nd April, 2003 when the result of the election was declared, the 30 days period stipulated by Section 132 of the Electoral Act will expire on 22nd May, 2003.”
From the foregoing, it is clear that the learned Justices excluded the date of the declaration of the election result while computing the 30 days limitation period within which to present an election petition when they held that the 30 days period stipulated by Section 132 of the Electoral Act would expire on the 22nd of May, 2003, when the result was declared on the 22nd of April, 2003.
With utmost respect to the eminent emeriti Justices, the lead Judgment of Niki Tobi, J.S.C., which is the Judgment of the Court and the binding precedent on the Tribunal and this Court did not go as far as stating the commencement date within which the time would run for purposes of calculating the limitation period of 30 days for the filing or presentation of the petition or the motion for amendment.
Rather, my Lord Tobi J.S.C. had confirmed as we had earlier held, by the following salient and far reaching rationes that:-
1. It is clear from the provisions of paragraph 50 of the First Schedule to the Electoral Act that the Civil Procedure Rules of the Federal High Court can only be applied to the extent that the Electoral Act allows or permits and not mutatis mutandis as held by Uwaifo J.S.C. in his contribution;
2. The Civil Procedure Rules aforesaid do not have life of theirs outside the Electoral Act, in other words, the rules are mere parasites of the Electoral Act;
3. By paragraph 50, a restriction has been placed on the application of the said Federal High Court Rules;
4. The Rules can only be applied with such modification as may be necessary to render them applicable in the light of the provisions of the Act;
5. The sky is not the limit in the applicability of the rules to the provisions of the Electoral Act;
6. From the provisions of paragraph 50 of the 1st Schedule, if any of the provisions of the Civil procedure Rules is in conflict with the provisions of the Electoral Act, 2002, the inconsistency or conflict will be resolved in favour of the provisions of Section 132 of the 2002 Act;
7. The words “subject to the express provisions of the Electoral Act” as used in paragraph 50 when used in statutes connote a condition, a proviso, a restriction and a limitation and subordinates the provisions of the subject section to the Section referred to which is intended to be affected by the provisions of the latter. See Tukur vs. Government of Gongola State (1989) 4 NWLR. (pt.1177) 592; Oke vs. Oke (1974) 1 All NL.R. (pt. 1) 443; LSDPC vs. Foreign Finance Corporation (1987) 1 NWLR. (pt. 50) 4113; Aqua Ltd. vs. Ondo Sports Council 4 NWLR. (1988) 4 NWLR. (pt. 91) 622 and Olusemo vs. COP (1998) 11 NWLR. (pt. 575) 547. See page 603 paras. A – D.
As regards his Lordships opinion on Section 132 of the Electoral Act, 2006, my Lord Tobi, simply said inter alia, and this accord’s with the provisions of Section 141 of the Electoral Act thus:-
“The result of the election was declared on 22nd April, 2003. The election petition was filed on 21st May, 2003 (see pages 1 to 3 of the record). Reducing that to 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.
This interpretation is in conformity with the provision of Order Xii r 1 of the Federal High Court (Civil Procedure) Rules which provides:……………………
Since Section 132 provides for a maximum period of thirty (30) days, the motion for amendment, in my humble view was filed within time. ”
From the foregoing, it cannot be seriously contended as the Appellants have done, that the lead Judgment of Niki Tobi J.S.C. excluded the day of declaration of result in the calculation of the 30 days limitation period. Even if he did, as Uwaifo and Edozie J.J.S.C. had done, such a pronouncement would have been obiter it being not based on the material issue before the court, which was the limitation period for amendment of petition.
By paragraphs 50, 14(1) and 14(2) of the First Schedule to the Electoral Act, the Federal High Court (Civil Procedure) Rules were applicable in the consideration of an application for amendment of the petition.
However, from the special provisions of Section 141 of the Electoral Act as we had seen earlier, the Interpretation Act and the Civil Procedure Rules were and are inapplicable to that particular provision of the Electoral Act as to the time for presentation of petition in view of the clear and unambiguous wordings of that Section.
Going by the pleadings in the Appellants petition that the result of the election was declared on the 14th of April, 2007, if the 30 days within which to present the election is arithmetically calculated to commence from the date of declaration of the result, the 14th to 30th of April, would be 17 days. From the 1st of May to the 14th of May, 2003, when the petition was filed, was 14 days duration. Therefore 14 + 17 days will be equal to 31 days.
If we go by the certificate of presentation of petition issued to Olaiya Kupolati (the 1st Petitioner/Appellant) as annexed to the Further Affidavit of the Objectors/Respondents, then the petition was presented on the 15th of May, 2003, that is to say that the petition was presented 32 days after the declaration of result, in which case no matter how one looks at it, the Appellants petition was incompetent as it was presented after the expiration of the 30 days mandatory period provided for under Section 141 of the Electoral Act, 2006.
The Honourable Judges of the Tribunal were therefore right when they held relying on Fadare vs. A.G. Oyo State. (1982) 4 S.C. 1; Alataha vs. Asin (1999) 5 NWLR. (pt. 601) and Ogbebor vs. Danjuma (2003) 15 NWLR. (pt. 243) 403 together with the recent cases of Kumaila vs. Sheriff and Action Congress vs. Jang, that the Petitioners filed their petition in breach of the provisions of Section 141 of the Electoral Act and accordingly the petition was statute barred. The petition was rightly and accordingly struck out.
Having so held that the decision in Yusuf vs. Obasanjo was obiter and therefore not binding on the Tribunal and this court, as the interpretation of Section 141 was neither the material issue or question for determination nor the ratio decidendi, the question of departing from or following the said decision in Yusuf vs. Obasanjo does not arise. All the cases like P.D.P. vs. Haruna; Adefemi vs. Abegunde; lyirhiaro vs. Usoh and Awuse vs. Odili (supra) cited by the Appellants in their submissions were therefore cited in error and out of context since their rationes decidendi were either on amendment of petition or extension of time within which to file Appellants’ Brief out of time. In the face of Ogbebor vs. Danjuma; Kumaila v. Sheriff; Action Congress vs. Jang and the recent decisions of this court in Muraino Ayantola & Anor. v. Action Congress & Ors. and Prince Kola Bukoye & 49 Ors. vs. Action Congress & Ors.; wherein we expressly dealt with the interpretation of S.141 of the Electoral Act, following Ogbebor vs. Danjuma and the previous cases decided in that respect, we refuse the invitation to depart from our former position.
Indeed, as the learned counsel for the 1st and 2nd Respondents has rightly submitted, this court was called upon in Kumaila vs. Sherif and Action Congress vs. Jang to depart from Ogbebor v. Danjuma (supra) and the conditions under which this court can depart from its previous decision were spelt out as follows:-
1. Where two decisions of the Court of Appeal are in conflict, the court must choose between them;
2. Where the Court of Appeal comes to the conclusion that the previous decision although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court;
3. Where the Court of Appeal comes to 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
4. Where the previous decision was decided without jurisdiction. See also the cases of Akinade vs. NASU (1999) 2 NWLR. (pt. 592) 570 at 581 – 582 Adun v. Osunde (2003) 16 NWLR (Pt. 847) 643 at 661 D-G.
In the appeal at hand, we have not seen any of the circumstances stated above to warrant our departure from our previous position. We reiterate our stand that Section 141 of the Electoral Act, 2006, is precise, clear and unambiguous in its wording and we shall continue to expound those wordings in their ordinary, simple and natural senses without recourse to any internal or external interpretative aids which we consider unnecessary.
Having resolved the two previous issues against the Appellants, Issue Number 3 becomes merely academic. However, to put the record straight, since we have held that by the provisions of Sections 141, 148 and paragraphs 23 – 25 of the 151 Schedule to the Electoral Act, 2006, the provisions of the Federal High Court (Civil Procedure) Rules which is inferior and subordinated to the Electoral Act 2006, cannot be applicable same being in conflict with the Electoral Act as has been held per Tobi J.S.C. in Yusuf vs. Obasanjo, the arguments of the Appellants on this Issue is non sequitur.
For the avoidance of doubt, however, and to demonstrate that the issue of the last day of filing of petition falling on Sunday which is regarded as a non dies does not arise, paragraph 25(2) of the 1st Schedule to the Electoral Act which provides in clear terms “that the hearing may be continued on a Saturday or on a public holiday if circumstances dictate, “belies the contention of the Appellants that Sunday is a public holiday which by the Interpretation Act the Tribunal’s Registry will not open for business.
Furthermore, the contention that Order 23 Rule I(d) of the Federal High Court (Civil Procedure) Rules, 2000 is meant to cure the lacuna created by Section 141 of the Electoral Act is, with the greatest respect, erroneous as we had already held that Section 141 of the Electoral Act, 2006, is clear and unambiguous on the commencement date for the filing of Election Petition after the declaration of result.
The learned counsel has cited Egolum vs. Obasanjo (1999) 7 NWLR. (pt. 611) 335 at 400 paras. C – D which held that a schedule is an integral part of an Act or enactment and that where an enactment in a schedule contradicts an earlier clause, the clause will prevail against the Schedule. We cannot see the relevance of this authority as there is no conflict between the schedule to the Act where for instance, paragraph 25(2) is in tandem with Section 141 of the mother Act on the sui generis nature of Election Petitions and the essentiality of time in their filing, hearing and disposition.
Apart from the above, even in a normal or ordinary civil proceedings where the provisions of the Civil Procedure Rules apply mutatis mutandis, the Federal and State High Courts have the discretion subject to their various laws to appoint any day or days and any place or places from time to time for the hearing of causes as the circumstances may dictate. See for instance Order 51 Rules 1, 3, 4 and in particular Rule 6 which provides that:
“Order 51 R. 6: The time for filing and service of pleadings shall not run during annual Easter and Christmas vacations of the court unless otherwise directed by the Court or a Judge in Chambers.”
From the above provision, it is clear that even though as a general rule, proceedings should not be held on a public holiday which like a Sunday is dies non juridicus, time for filing of processes shall continue to run even on Sundays and that where circumstances dictate, the court may sit on Sunday or public holiday. See the case of Udo Utong Udo vs. Akpan Udo Akpan (1923) 4 NLR. 121; Ososami vs. Police (1952) 14 W.A.C.A. 24. In Ani vs. Uzorka (1993) 9 SCNJ (Pt. 2) 223, the Supreme Court held that any Judge has the jurisdiction to sit in any court on a Saturday or even Sunday which is a dies non juridicus provided it does not compel the litigants who are members of the public and their counsel to attend, the application of the Public Holidays Act Cap. 378 Laws of the Federal of Nigeria 1999, which provides for the days to be kept as public holidays as mentioned in the Schedule to the Act, notwithstanding.
The consideration of the Federal High Court Rules as done above is mainly an academic exercise if the submissions of the learned counsel for the 1st and 2nd Respondents on Issue Number 3 which are on very solid ground are taken into consideration. In the first place, I agree with the Respondents’ counsel and restate here without any equivocation that since the provisions of Section 141 is clear and unambiguous on the time limit within which to present an election petition following the declaration of result, the Interpretation Act nay the Federal High Court Rules are inapplicable and it matters not whether the 13th of May, 2003, which was the last day for the filing of the petition fell on Sunday since it is the Interpretation Act and the Rules which stipulate that an act which ought to be done on Sunday would be competent if done on the next working day.
Again, as was rightly argued by learned counsel for the 1st and 2nd Respondents, because of the sui generis nature of election petition, a Petitioner who is intent on challenging the declaration of the result of an election which was in his disfavour, must in accordance with the expeditious and exigent nature of the proceedings file his petition timeously, without waiting for the last day to elapse only to complain that such a day fell on a public holiday or Sunday. Indeed, he must act diligently and ensure that he beats the deadline as provided by the operative words of Section 141 which is that election petition ‘shall’ be presented ‘within 30 days from’ the date of declaration of the result. The above section is therefore mandatory and brooks of no discretion on the part of the Appellants or this court once it is breached. There is no doubt that on the authority of Adisa v. Oyinlola (2000) 10 NWLR. (pt.674) 116 at 202 which was quoted in extenso by the learned counsel for the 1st and 2nd Appellants, the provisions of Section 141 may be harsh on the Appellants but as the saying goes, equity does not aid the indolent. Having therefore waited till the expiration of deadline for filing their petition, the Appellants are the architects of their misfortune and should not lay the blame on anybody. The harshness of the law notwithstanding, it must be enforced with full force against them as it accords with the intention and policy of the legislature and even the entire Nigeria polity that election cases which deal with disputes to elected offices with fixed tenure should be initiated and heard expeditiously in the interest of the parties, the various constituencies and electorates who would be disenfranchised if proceedings are delayed unnecessarily. Accordingly, this issue is again resolved in favour of the Respondents.
On the whole, this appeal lacks merit and shall be and is hereby dismissed.
SOTONYE DENTON-WEST, J.C.A: I agree.
CHIMA CENTUS NWEZE, J.C.A: I had the advantage of reading the draft of the leading judgment which my learned brother and noble Lord, Agube JCA just delivered now.
I am constrained to make a few comments only because the appellant’s second issue 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, 1984) 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; Savannah Bank of Nigeria Ltd v P.A.S.TA. Ltd (1987) 1 SC 198; 278-279; NAB Ltd v B. Eng (Nig) Ltd (1995) 8 NWLR (Pt 413) etc.
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 right when he classified Jurisprudence as “a word which stinks in the nostrils of a practising 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 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, a decision which the appellant claimed the lower court did not follow, 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! However, I must hasten to observe that the above criticisms have no utilitarian value for us since we are bound by the approach adopted by the Supreme Court to this question. That approach would appear to be an amalgamation of the views of Hood Phillips and the definition of Goodhart, as adapted by Glanville Williams. Thus, for example, Karibi- Whyte JSC in Savanah Bank of Nigeria Ltd v P.A.S.T.A. Ltd (1987) 1 SC 198; 278-279 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 NAB 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 which the appellants posed in their second issue must, therefore, be located in the context of the above guidelines. In the Savanah 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 Report [(2003) 16 NWLR (pt 847) at page 596 paragraph D], 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].
Put simply, the pivot of the issues which the court was upon to decide was the issue of amendments [as contained in the First Schedule to the Electoral Act, 2002, paragraph 14 (1) and (2), in pari materia 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 the issue relating to amendments upon which Tobi JSC resolved the appeal.
One final point in Abacha and Ors v Fawehinmi (2000) All NLR 351, Achike JSC 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]
The position, therefore, is that the judgment of Tobi JSC constitutes the judgment of the Supreme Court in Yusuf v Obasanjo (supra). His Lordship’s leading judgment did not deal with the question of the commencement date relevant for the determination of the limitation period for the presentation of an election petition. With profound respect, therefore, since the expositions on section 132 [in pari materia with section 141 of the Electoral Act, 2006] contained in the contributions of Uwaifo and Edozie JJSC, went beyond the narrow issue of amendment which was addressed in Tobi JSC’s judgment, they are no more than obiter dicta! Since Tobi JSC’s judgment was concerned only with the issue of amendments, I do not see how the lower court could, justifiably, be pilloried for not anchoring its judgment on that case.
Now, as my Lord Agube JCA observed in the said leading judgment, the question of computation of time for the presentation of an election petition was directly in issue in Muraino Ayantola and Anor v Action Congress and Ors [Appeal No CA/IL/EP/SH/16/2008 unreported judgment delivered on July 18, 2008]. Since my decision in that case bears directly on the first issue formulated by the appellants in the present appeal, I shall take liberty to reiterate my position in that judgment as part of my contribution in the present appeal.
I take the view that it is the provision of section 141 that should be taken into account on the question of computation of time. There are, at least, 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. Thus, it is the provision of the Act on the limitation that will be taken into account. .. The phrase “subject to ” in the chapeau or opening sentence of paragraph 50 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…
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].
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.. .
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 utilisation 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 utilises 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…
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 will start to run on the day of the declaration of the results. Above all, the presentation can only take place during the continuance of the thirty days starting from that day elections results were declared. I can only add that I have no reason for departing from the position I took in that case. I, therefore, uphold the ruling of the lower tribunal that the appellants’ petition was statute- barred since it was filed outside the thirty days mandatory period ordained in section 141 of the Electoral Act, 2006.
It is for these reasons, and the more elaborate reasons contained in the leading judgment that I too shall dismiss the appeal.
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Appearances
Oso Adetunji Esq;
A. Umar EsqFor Appellant
AND
Oluwasina Ogungbade Esq.
Mrs. M. ArinzeFor Respondent
