ANSLEM AGBABI v. ADJOTO KABIRU & ORS
(2019)LCN/13644(CA)
In The Court of Appeal of Nigeria
On Monday, the 13th day of July, 2009
CA/B/EPT/127/2008 (CON)
RATIO
JURISDICTION: IMPORTANCE
It is axiomatic that the issue of jurisdiction is very crucial in the adjudication of any matter in a court of law. Its cardinal place has been emphasized and re-stated in a number of decisions of the Supreme Court and this court. And because of its fundamental nature and importance to the competence of adjudication, it can be raised at any stage of the proceedings in a matter even on appeal at the Supreme Court. It is so trite that any proceedings embarked on without jurisdiction is a nullity and an exercise in futility. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
ELECTION PETITION: PERIOD WITHIN WHICH AN ELECTION PETITION SHOULD BE FILED
For the purpose of clarity, Section 141 of the Electoral Act, 2006 provides:-
“An election petition under this Act shall be presented within 30 days from the date the result of the election is declared.”
There is no doubt at all that this provision is a limitation of time stipulation. It allows for 30 days only within which to file an election petition. With respect to every situation where limitation of time is involved the bottom-line always is when does time begin to run and when does it end. It is always very important to put these two questions under proper focus and correct perspective. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
LIMITATION OF TIME: TIME BEGINS TO RUN WHEN A CAUSE OF ACTION ACCRUES
It is settled and well defined that time begins to run for purposes of limitation of time when a cause of action accrues to an aggrieved person. It is also settled that the cut off period is reckoned from the date the cause of action accrued to the number of days, months or years provided under the relevant limitation of time enactment – as the benchmark. See AINA VS. JINADU. At its simplest of situations, it is a mere arithmetical exercise.
LIMITATION OF TIME: UNIQUE CIRCUMSTANCES OF EACH CASE SHOULD BE CONSIDERED
It is however important and necessary, for the purpose of determining the limitation period in any given case to consider the facts and circumstances of each case. This is because certain features of particular cases present unique settings that would require a unique approach. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JURISDICTION: COURTS SHOULD NOT GO BEYOND THEIR JURISDICTION
In Nigeria, our courts are creatures of the Constitution and/or statutes wherein their powers and jurisdictions are provided. In consequence of this, they must adhere very strictly only to the jurisdictions and powers provided for them by the Constitution or statute. In this regard, courts have been admonished by the Supreme Court to espouse but not to expand the jurisdiction provided for them even while they proceed to guard same zealously and jealously. See A.G. LAGOS STATE VS. DOSUNMU. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES:
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
ANSLEM AGBABI – Appellant(s)
AND
1. ADJOTO KABIRU
2. ACTION CONGRESS (AC)
3. PEOPLES DEMOCRATIC PART (PDP)
4. INDEPENDENT NATIONAL ELECTORA COMMISSION (INEC)
5. RESIDENT ELECTORAL COMMISSIONER INEC EDO STATE
6. ELECTORAL OFFICER INEC, AKOKO EDO LOCAL GOVERNMENT – Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivered the Leading Judgment): Elections were held on 14th April, 2007 to fill the seats earmarked for the Edo State House of Assembly. A number of political parties fielded and sponsored candidates to contest the election. The appellant herein, Mr. Anslem Agababi was the candidate of the Peoples Democratic Party – PDP (3rd Respondent/Appellant). The 1st Respondent herein, Mr. Adjoto Kabiru was the candidate of the Action Congress – AC, (2nd Respondent/Cross-Appellant). After the elections and along the line, INEC (4th Respondent herein) announced the results of the election wherefor it declared and returned the Appellant as the duly elected candidate for the Akoko Edo I Constituency of the Edo State House of Assembly.
The 1st and 2nd Respondents were aggrieved with the result of the election. They filed a petition NO.EDSA/EPT/16.07 before the Edo State Governorship and Legislative Houses Elections Tribunal. It is a 43 paragraph petition dated 10th May, 2007 but filed on 14th May, 2007. The petitioners sought for the following reliefs. They are:-
(1) An order invalidating the 17, 132 votes awarded to the 1st and 2nd Respondents by the 3rd, 4th and 5th Respondents in Akoko – Edo 1 Constituency election held on 14/4/07 on the ground of corrupt practices or non-compliance with the provisions of the Electoral Act, 2006;
(2) An order that the 3rd and 4th Respondents having cancelled the election in Akoko -Edo 1 Constituency are functus officio and therefore lack the power and authority to revalidate the cancelled election results;
(3) An order setting aside the revalidation of the results of the Akoko – Edo 1 Constituency election and the award of the Akoko – Edo 1 Constituency seat of the Edo State House of Assembly to the 1st and 2nd Respondents;
(4) An order directing the 3rd, 4th and 5th Respondents to hold and conduct a bye-election in Akoko – Edo 1 Constituency as earlier decided and announce by the said 3rd, 4th and 5th Respondent.
Mr. Agbabi and PDP (as 1st and 2nd Respondents) filed a 24 paragraph joint reply on 25th June, 2007. They denied all the material averments in the petition. To this reply, the petitioners filed a response of 3 paragraphs on 6/07/07 wherein they pleaded further facts and documents. The application of the 3rd – 5th Respondents for leave to file their reply out of time was granted on 20/7/07 and their 13 paragraph joint reply dated 13/7/07 was deemed as properly filed and served on 20/7/07. They also denied the key and material averments in the petition.
Issues having been duly joined, the Tribunal (lower court) conducted series of pre-hearing sessions at the end of which it formulated the following 3 issues as the principal issues for determination in the petition. They are:-
(1) Whether the petitioners have proved beyond reasonable doubt that the election held on 14/4/07 in Akoko – Edo 1 Constituency was marred by violence, falsification of results, corrupt practices, fraud and electoral malpractices and substantial non-compliance with the provisions of the Electoral Act, 2006;
(2) Whether or not the 3rd – 5th Respondents have the right, after allegedly canceling the election held on 14th April, 2007, and fixing 28th April, 2007, for a bye-election to reverse that decision and subsequently announce the 1st Respondent as the winner of that election, return him as the elected member of the Edo State House of Assembly for Akoko-Edo 1 Constituency and issued him a certificate of return; and
(3) Whether or not the 1st Respondent was duly returned as the winner of the Akoko – Edo 1 Constituency election into the Edo State House of Assembly held on 14th April, 2007, having scored a majority of lawful votes cast at the election.
After this, the petition went to full trial during which each of the sets of parties called and relied on both oral and documentary evidence. Also, during the trial, respective learned counsel for the parties filed and exchanged written addresses. In its judgment of 14th April, 2008, the lower court nullified the election and return of the appellant as the duly elected candidate for Akoko – Edo 1 Constituency of the Edo State House of Assembly. It went further to order for a bye – election. The Appellant was dissatisfied with this decision and appealed to this court challenging same on 12 grounds.
The PDP also appealed the decision of the lower court on 6 grounds in a notice of appeal dated 2/5/08. The 1st and 2nd Respondents were also not satisfied with the decision in consequence of which they cross-appealed. After all the briefs were filed and exchanged, the 2 appeals were consolidated and the cross-appeal was taken and considered along side. The 3rd – 5th Respondents filed a notice of preliminary objection to the competence of the cross-appeal. The Appellant sought for and obtained the leave of this court on 2-3-09 to amend his original notice of appeal by an addition of a new ground of appeal. This additional ground of appeal involves an issue of law that was not argued before the lower court. It pertained to the competence of the petition and the jurisdiction of the lower court to entertain it.
Respective learned counsel filed and exchanged briefs of arguments. Upon the leave granted to argue the fresh issue of jurisdiction on appeal, consequential amendments were made to the relevant and concerned briefs. At the hearing of the appeal respective learned counsel identified, adopted and relied on their briefs of argument. Learned Counsel Chief Orbih, for the Appellant also took the liberty of the hearing to adumbrate on some of the high points in the issues formulated for determination in this appeal. Learned counsel Mr. Tarfa SAN, for the 1st and 2nd Respondents also did on exposition of what he thought was necessary to be explained.
From the original 12 grounds of appeal and the 13th additional ground, learned counsel Chief Orbih formulated 6 issues for determination in this appeal. The first issue was formulated from the additional ground of appeal. It goes like this:-
“Whether having regard to the provision of section 141 of the Electoral Act, 2006, the petition filed by the 1st Respondent was competent.”
Learned counsel argued this issue in paragraphs 4.03 to 4.24 at pages 7 – 12 of his amended brief of argument.
In opening his arguments, learned counsel Chief Orbih referred to and reproduced the provisions of section 141 of the Electoral Act, 2006 as a foundation for his submission that it is the relevant provision that deals with the time frame within which an election petition must be filed. He identified the time frame as 30 days. According to Chief Orbih, of counsel, the 1st Respondent filed the petition leading to this appeal on the 14th May, 2007, challenging the result of the election held on the 14th April, 2007, into Akoko – Edo 1 Constituency of Edo State House of Assembly. He maintained that the appellant was returned and declared the winner of the election by INEC on 14th April, 2007. Upon this background and foundation, learned counsel submitted that in calculating the aforesaid 30 days, the cause of action in an election petition accrues from the day the result of the election being complained of was declared. He added that once the result was declared the cause of action is complete and has fully accrued. He supported this submission with the decisions in AKUME VS. LIM (2008) 16 NWLR (PT.1114) 490 AT 502 F – G, ALATAHA VS. ASIN (1999) 5 NWLR (PT.601) 32 AT 44, OGBEBOR VS. DANJUMA, KUMALIA VS. SHERRIF etc.
According to learned counsel the declaration of result in this case was made on 14th April, 2007. He added that by a simple arithmetical calculation, the 30 days allowed by section 141 ended on 13th May, 2007. He then submitted that to the extent that the petition was filed on 14th May, 2007, it was one day out of time and therefore statute – barred. Further to this, learned counsel, Chief Orbih explained that the provision of section 141 is clear, plain and unambiguous and he submitted that it must therefore be given effect in its ordinary, literal and natural meaning. He referred to A. G., ONDO STATE VS. A. G. EKITI STATE, (2001) 17 NWLR (PT.743) 706 AT 756 AS PER KUTIGI, JSC (as he then was). He urged this court to give effect to the clear words contained in the provisions of section 141. After referring to a number of decisions of the Supreme Court and this court, Chief Orbih, of counsel, urged this court to hold that the petition filed by the 1st Respondent challenging the declaration of the Appellant as the winner of the election in Akoko – Edo 1 Constituency of Edo State House of Assembly of 14th April, 2007 is incompetent for being statute-barred. He also further urged the court to accordingly dismiss same.
Issue NO.1 in the amended brief of the 1st and 2nd Respondents appears to me to be a reply to the arguments of the Appellant on the issue of competence of the petition and the jurisdiction of the lower court to entertain same. It was argued in paragraphs 10.05 to 20.00 at pages 10 to 20 of the amended brief of the 1st and 2nd Respondents.
Learned counsel to the 1st and 2nd Respondents opened his response with a tacit assertion that the petition at the lower court was competent and was filed within the period of 30 days provided by section 141 of the Electoral Act, 2006. Having set out this position, learned counsel explained that for time to begin to run against any aggrieved party to an election under the Electoral Act, 2006, there must be a declaration of result of the election, and time cannot begin to run until the result of the election was declared.
According to learned counsel, the crux of the case of the 1st and 2nd Respondents before the lower court and upon which evidence was adduced was that collation of votes was not made and the result of the election was not announced or declared. He went further to underscore the gravamen of the petition. He referred to paragraphs 21 and 34 – 38 of the petition as being the assertions of the petitioner that collation and declaration of results were not
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