ABDULKADIR JIBRILU v. MUHAMMAD KABIR JIBRIL & ORS. (2010)

ABDULKADIR JIBRILU v. MUHAMMAD KABIR JIBRIL & ORS.

(2010)LCN/4055(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of November, 2010

CA/K/EP/NA/21/2008

RATIO

NON-COMPLIANCE WITH ELECTORAL PROVISIONS: WHETHER THE LAW IS MORE CONCERNED WITH THE EXTENT THE NON-COMPLIANCE WITH ELECTORAL PROVISIONS OR COMMISSIONS OF ELECTORAL OFFENCES AFFECT THE ELECTION RESULT

The law recognizes that non-compliance with electoral provisions or commissions of electoral offences do occur. They occur in many instances. But the law is more concerned with the extent – how far and wide they did occur. And also how substantially did they affect the election result. PER MARY U. PETER-ODILI, J.C.A.

ELECTORAL MALPRACTICE: WHETHER ANY SLIGHT OR INCONSEQUENTIAL ELECTORAL MALPRACTICE CAN INVALIDATE THE RESULT OF AN ELECTION

It is not just any slight or inconsequential electoral malpractice that will invalidate the result of an election. Wali v. Bafarawa (2004) 16 NWLR (pt. 898) 1 at 42 and 43; Ojukwu v. Onwudiwe (1984) 1 SCNLR 247; Awolowo v. Shagari (1979) 5-9 SC 51; Nabature v. Mahuta (1992) 9 NWLR (pt. 263) 85; Opia v. Ibru (1992) 3 NWLR (pt.231) 658; Ekpe v. Morah (1999) 3 NWLR (pt. 617) 146; Ayua v. Adasu (1992) 3 NWLR (pt. 231) 598; Falae v. Obasanjo (1999) 4 NWLR (pt.599) 426i; Adeola v. Owoade (1999) 9 NWLR (pt. 617) 30. PER MARY U. PETER-ODILI, J.C.A.

PROCEDURE AND ESSENCE OF TIME IN ELECTION PETITION: WHETHER TIME IS OF THE ESSENCE IN ELECTION PETITION AND THE PROCEDURE IS NOT GOVERNED BY THE ORDINARY CIVIL RULES OF PROCEDURE

COMPUTATION OF TIME: WHETHER THE PROVISION OF SECTION 15(2) (A) OF THE INTERPRETATION ACT APPLIES IN ALL INSTANCES OF THE COMPUTATION OF TIME

…the provisions of the Interpretation Act, Section 15 (2) (a) thereof which provides that 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 occurred. In so saying he referred to the case of Atikpekpe v. Joe (1999) 6 NWLR (pt. 607) 428 at 437. The question that is thrown up is if that provision applies in all instances of the computation of time. In answer, I will refer to an earlier decision of this Court per Ngwuta JCA. He said, and I quote:- “The provision of the Interpretation Act does not necessarily apply in all cases of construction of Acts of the National Assembly or other enactment. Its application is subject to two limitations, one in-built in the act itself and the other based on case law; that is: (a) the self restraint in the application of the Act (including Section 15 (2) is contained in Section 1 of the Act which states that the act is not applicable”… In so far as the contrary intention appears in this Act or the enactment in question”. (b) there is a plethora of case law to the effect that clear, explicit and unambiguous provisions of an enactment must be given their natural, literal and grammatical meanings without a resort to any internal or external aid in construction. In this case, there is no intention in the Interpretation Act or the Electoral Act to exclude the former in the interpretation of the Electoral Act, 2006 but the case law makes it clear that the Interpretation Act is not applicable in the interpretation of Section 141 of the Electoral Act, 2006″, Action Congress v. Jang (2009) 4 NWLR (pt 7732) 475 at 504-505 per Ngwuh JCA. Bakare v. N.R.C. (2007) 77 NWLR (pt. 1064) 606. PER MARY U. PETER-ODILI, J.C.A.

RULES OF INTERPRETATION OF STATUTE: HOW TO CONSTRUCT THE WORDS OF A STATUTE WHERE THE WORDS ARE CLEAR AND UNAMBIGUOUS

In the construction of statements, where the words are clear and unambiguous, the ordinary natural meaning of the words used should be applied. The words should be accorded their literal meaning without any interpretation and without resorting to external aid. Atikpekpe v. Joe (1999) 76 NWLR (pt. 607) 428; Atuyeye v. Ashamu (1987) 1 NWLR (pt. a9) 267; Abioye v. Yakubu (1991) 5 NWLR (pt.190) 130; Ojokolobo v. Alamu (1987) 3 NWLR (pt. 61) 377; Orubu v. N.E.C. (1988) 5 NWLR (pt. 94) 323; Nwanezie v. Idris (1993) 3 NWLR (pt. 279) 1. In order to properly interprete any statute, it is necessary to consider how the law stood when the statute to be construed as in this instance the Election Act 2006, was passed, what the mischief was for which the old law had not provided and the remedy provided by the statute to cure that mischief. I refer to Terab v. Lawan (1992) 3 NWLR (pt. 231) 569. PER MARY U. PETER-ODILI, J.C.A.

INTERPRETATION OF STATUTE : INTERPRETATION OF SECTION 141 OF THE ELECTORAL ACT, 2006 AS TO THE TIMEFRAME WITHIN WHICH AN AN ELECTION PETITION UNDER THIS ACT MUST BE PRESENTED FROM THE DATE THE RESULT OF THE ELECTION IS DECLARED

JURISDICTION: WHETHER A JURISDICTIONAL MATTER IS SO FUNDAMENTAL THAT IT CAN BE RAISED BY THE COURT SUO MOTU

A jurisdictional matter or issue such as the one at hand is so pivotal and fundamental, it can be raised even suo motu by this Court itself so long as the parties are given the opportunity to react on the issue. PER MARY U. PETER-ODILI, J.C.A.

COMPETENCE OF COURT: CONSEQUENCE OF ANY DEFECT IN THE COMPETENCE OF A COURT ON THE JURISDICTION OF THE COURT TO ENTERTAIN THE MATTER

A court is only competent to hear a matter when the matter is initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of that jurisdiction. Any defect in the competence of a court is fatal and ultimately affects the jurisdiction of the court to entertain the matter. The existence or absence of jurisdiction goes to the very root of the matter so as to sustain or nullify the court’s decision or order in respect of the relevant subject matter. Akume v. Lim (2008) 16 NWLR (pt.1114) P.490 (CA); Ogbebor v. Danjuma (2003) 15 NWLR (pt. 843) 403; Ishola v. Ajiboye (1994) 6 NWLR (pt. 352) 506. PER MARY U. PETER-ODILI, J.C.A.

JUSTICES

MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

ABDULKADIR JIBRILU Appellant(s)

AND

1. MUHAMMAD KABIR JIBRIL
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. THE RESIDENT ELECTORAL COMMISSIONER KADUNA STATE (CHIEF AYO M. DADA) Respondent(s)

MARY U. PETER-ODILI, J.C.A. ( Delivering the Leading Judgment): This appeal stems from the Ruling and Judgment of the National Assembly/Governorship and Legislative Houses, Election Tribunal sitting in Kaduna delivered on 16th August, 2007 and 16th April, 2008 respectively, by which the Appellant’s motion to substitute petitioner’s witness statements accompanying the petition with the petitioners witnesses statements on oath attached thereto was refused and the petition dismissed.
FACTS BRIEFLY STATED:
The Appellant was the candidate of the All Nigerian Peoples Party (A.N.P.P.) at the 28th April, 2007 Kaduna State central senatorial District Election. The 1st Respondent was a candidate of the Peoples Democratic Party (PDP) at the said Election. The 2nd and 3rd Respondents were the statutory body and agent respectively which conducted the said 28th April, 2007 Kaduna central senatorial Election in Kaduna.
At the close of the election the 2nd respondent declared the 1st Respondent as the winner of the Election and duly returned him elected as the Senator for Kaduna central senatorial District of Kaduna state. Dissatisfied with the declaration and return the Appellant filed a petition on 29th May, 2007 before the National Assembly/Governorship and Legislative House election Tribunal to challenge the election and return of the 1st Respondent aforesaid. The only ground of the Petition being that 1st Respondent was not duly elected by majority of lawful votes cast and alternatively that the election was invalid by reason of corrupt and unjustifiable practices and non-compliance with the Provisions of the Electoral Act, 2006.
On being served with the petition the 1st Respondent entered a conditional appearance and filed a Motion dated 18/6/2007 whereby he challenged the competence of the petition. Arguments were taken and on the 8th July, 2007, the Tribunal dismissed the said Objection.
The Appellant filed a Motion dated 17th July, 2007 on the same date whereby he sought for an order substituting the petition with petitioner’s statements on Oath attached thereto as exhibits A1 – A18 and arguments were taken in respect of same. The Tribunal in its ruling of 16h August, 2007 refused the said motion and struck it out.
At the hearing of the petition, the Appellant called two witnesses and tendered several documents through his counsel from the Bar. The documents were produced upon a subpoena duces tecum issued on INEC and admitted and marked as Exhibits A – ZZ by the Appellant’s witnesses made any reference to or identified the several documents tendered from the Bar. At the end of the Appellant’s case, the 1st Respondent elected not to lead any evidence. Thereafter counsel to parties adopted their respective written addresses and in the judgment delivered on 16th April, 2008, the Tribunal dismissed the petition and affirmed the return of the 1st Respondent as Senator representing Kaduna Central Senatorial District of Kaduna State.

Dissatisfied with the judgment the Appellant filed a Notice of Appeal dated 7th May, 2008 on the same date containing nine grounds which shall be captured below without the particulars.
GROUNDS OF APPEAL: – (without the Particulars) viz:-
GROUND ONE:
ERROR IN LAW:
The Lower Tribunal erred in law when it held that “In the instant case, we have already held that the quality of evidence is not good enough to substantiate the allegation made in the Pleadings…
The detailed analysis on pages 27-242 of the Petitioner’s address has not been disclosed by the evidence before us. The Petitioner’s address is an invitation for this Tribunal to embark upon an investigation in order to discover these facts, the truth of which could have been challenged by fresh contrary evidence if they had been disclosed by any of the petitioner’s witnesses. We would and do hereby resist this invitation as it clearly falls within the ambit of investigation which the tribunal is forbidden from embarking upon”.

GROUND TWO:
MISDIRECTION OF FACTS:
The Lower Tribunal misdirected itself in fact when it stated “…..the witnesses called by the Petitioner did not refer to any of the documentary evidence in their testimony, nor were any documents identified by them”.

GROUND THREE:
ERROR IN LAW:
The Lower Tribunal erred in law when it held that “….by paragraph 4 (3) of the practice Directions a witness is to tender documents referred to in the deposition.

GROUND FOUR:
ERROR IN LAW:
The Lower Tribunal erred in law when on page 21 of the Judgment it relied on the Principle enunciated by Bate J. in Duriminiya v. COP (1961) NWLR 70 at 73-74 in concluding the Petitioner’s documentary evidence tendered been proved as required by law? Put differently, does the fact that the documentary evidence was deemed as read…… obviate the need for the document to be proven? We doubt if this is so!”

GROUND FIVE:
ERROR IN LAW:
The Lower Tribunal erred in law when it held on page 24 of the Judgment Terab v. Lawan (1992) 3 NWLR (pt. 231) 569 is distinguishable and inapplicable to the Petitioners’ case to wit; “the pronouncement in Terab v. Lawan alluded to by the Petition does not support the procedure adopted in the instant case by the Petitioner”

GROUND SIX:
ERROR IN LAW:
The Lower Tribunal erred in law when it held that “…… the Petitioner has failed to make out any sufficient case on the basis of which we can hold that the 1st Respondent was not elected by a majority of lawful votes cast at the Election and that the Petitioner actually obtained the highest number of valid votes cast in the Election so as to be validly returned as winner of the election”.

GROUND SEVEN:
ERROR IN LAW:
The Lower Tribunal erred in law when it held that.”…. The Petitioner has failed to make out any sufficient case on the basis of which we can hold that the 1st Respondent was not elected by a majority of lawful votes cast at the Election and that the Petitioner actually obtained the highest number of valid votes cast in the Election so as to be validly returned as winner of the election”.

GROUND EIGHT:
The Judgment of the lower Tribunal is against the weight of evidence.

GROUND NINE:
ERROR IN LAW:
The Honourable Tribunal erred in law when it held in its ruling of 16th August, 2007 that “… This means that there is nothing to be substituted as the number of witnesses sought to be brought in here even catapulted into an additional 16. Is this then not a substantial amendment after the expiration of the statutory periods for filing a Petition? Our answer is no doubt in the affirmative. We accordingly disallow this application and it is accordingly struck out….”

REFLIEFS SOUGHT FROM THE COURT OF APPEAL:
(a) Allow the Appeal.
(b) Set aside the Judgment of the Lower Tribunal delivered on 16th April, 2008.
(c) Set aside the Election of the Respondent as the elected representative to the National Assembly for the Kaduna Central Senatorial District.
(d) Declare the Appellant the duly elected representative to the National Assembly for the Kaduna Central senatorial district having scored the majority of lawful and valid votes.
On the 27/9/10 date of hearing, learned counsel for the 1st Respondent Mr. Aigbovo referred the court to their Preliminary objection filed on 2/2/10 which arguments were incorporated in the Respondent’s Brief of 5/3/10. He adopted the arguments and urged the court to uphold the Objection.
Learned counsel for the Appellant adopted their Reply Brief in answer to the arguments on the Preliminary objection which Reply Brief was filed on 8/3/10.
That this objection would be tackled before anything else needs no saying as there is a plethora of authorities in support of the procedure to have the Preliminary Objection dealt with before going forth if the outcome warrants going into the merits of the appeal.

PRELIMINARY OBJECTION:
The 1st Respondent filed a Notice of Preliminary Objection dated 2nd of March, 2010 and filed the same day challenging the jurisdiction of both the Trial Tribunal and this Court of Appeal to entertain this matter on two grounds.
The first ground being that the Trial Tribunal lacked jurisdiction ab initio to have entertained and determined the incompetent Election Petition No: EPT/KD/NA/008 which was statute barred having been presented/filed by the petitioner/Appellant outside and not within 30 days period from the 29th April, 2007, the date the result of the election was declared.
The second ground of objection is to the effect that this Appeal as filed by the Appellant is statute barred having been filed outside and not within 21 days period from the date of judgment delivered on 16th April, 2008.
Mr. Aigbovo, arguing this Preliminary Objection contended that it is trite that issue of jurisdiction can be raised at anytime and even for the first time on Appeal as in the instant matter. Learned counsel stated that jurisdictional issues touch on the competence of adjudication and is one of the exceptions where fresh points may be raised on Appeal without leave. Also that a party does not require the leave of the court to file a Preliminary Objection so long as the other party is put on notice before the hearing of the Appeal as in the case in hand. He cited Ayinke Stores Ltd. v. Adebogun (2008) 10 NWLR (pt. 1095) 612 at 526 paras D-E; Ekiti LGA v. AJE Printing (Nig.) Ltd. (2009) 4 NWLR (pt. 1131) 304 at 323 paras D-G; Mark v. Abubakar (2009) 2 NWLR (pt. 1124) 79 at 107 B-C.
Mr. Aigbovo further submitted that the first arm of the Preliminary Objection is anchored on Section 141 of the Electoral Act 2006, which provision is clear, unambiguous and mandatory as to when an election petition is to be presented or filed. That the result of the Kaduna Central Senatorial election held on 28th April, 2007 that returned the 1st Respondent as duly elected was declared on 29th April, 2007 and this was not in dispute. He stated on that the time for the Petitioner/Appellant to present/file his Election Petition against the return of 1st Respondent started to run from the 29th April, 2007, the date the result was declared. He cited Action Congress v. Jang (2009) 4 NWLR (pt. 1132) 475 at 508 – 509 F-F; Akume v. Lim (2008) 16 NWLR (pt.1114) 490 at 505-506 F- B; Odubeko v. Fowler (1993) 7 NWLR (308) 637; Jauco (Nig.) Ltd v. Owoniboys Tech. Services Ltd. (1995) 4 NWLR (pt.391) 53; INEC v. Hashidu (2009) 4 NWLR (pt. 1130) 73 at 88-89 E-H.
Learned counsel for the 1st Respondent submitted that the 30 days from the date of declaration of result i.e 29/4/07 within which the Petitioner/Appellant shall present his Petitioner lapsed/expired on 28th May, 2007 which was a Monday, a working day. Therefore when he presented or filed his petition on 29th May 2007 that was the 31st day from the date of declaration of result and was contrary to Section 141 of the Electoral Act thus rendering the Petition statute barred and incompetent as the period allowed in law cannot be extended. That in the circumstance the trial Tribunal lacked the jurisdiction ab initio to have entertained the incompetent Petition, which Petition ought to have been struck out.
Mr. Aigbovo went on to contend that the second arm of the objection is premised on Section 149 of the Electoral Act which provided for notice of appeal within 21 days from the date of the judgment or decision of the trial Tribunal. That in this instance the trial Tribunal delivered judgment on 16th April, 2008 in favour of the 1st Respondent while the Appellant filed his appeal on 7th May, 2008, a clear 22 days from the date of delivery of the judgment, thus rendering the appeal statute barred and not possible to extend the time in view of the special nature of electoral matters. He referred to Ogbebor v. Danjuma (2003) 15 NWLR (pt 843) 403 at 434-435 G-C; Okonkwo v. Ngige (2006) 8 NWLR (pt. 981) 119 at 138 A-C.
That Section 138 of the Electoral Act 2002 is in pari materia to Section 149 of the Electoral Act 2006. That the wordings in Section 149 of the Electoral Act 2006 are clear and unambiguous hence did not require the aid of the Interpretation Act. Thus this Appeal Court lacks the jurisdiction to entertain the appeal. He cited Agbaje v. Fashola (2008) 5 NWLR (pt. 1082) 9O at 131 paras E-F. That the Preliminary Objection should be upheld and the matter struck out for want of competence.
In response, learned counsel for the Appellant, Mr. Olowokure stated that by virtue of the mandatory provisions of Section 285 (1) (d) of the Constitution of the Federal Republic of Nigeria the 1st Respondent cannot bring the Preliminary Objection at this stage without its being first argued at the Lower Tribunal. That this court should stay away from the present controversies surrounding the applicability of the Supreme Court case of Yusuf v. Obasanjo (2003) 15 NWLR (pt. 847) 532. That there are distinctions in the constitutional provisions that relate to National Assembly Election Tribunals and the constitutional provision that relate to governorship and Legislative Houses election Tribunals. That the provisions of section 285 (1) (d) are glaringly absent from the constitutional provisions setting up the governorship and Legislative Houses Tribunal. He referred to Section 285 (2) of the Constitution. That the provisions of Section 285 (d) (1) do not appear in Section 285 (2) which means that in a Governorship or State Legislative House Petition a respondent can challenge the competence of the Petition itself for the first time in the Court of Appeal. That on the other hand by virtue of Section 285 (1) (d) in a National Assembly Election such as the one at hand the 1st Respondent must first challenge the validity of the Petition at the National Assembly election Tribunal.
Learned counsel for the Appellant submitted further that even if the 1st Respondent had obeyed section 285 (1) (d) of the constitution and sought this ground of his application in the Lower Tribunal he would still need to Appeal the decision to bring it within the purview of the court of Appeal. He said if the strict provisions of Section 141 were applied to Appeals from the National Assembly Tribunal without considering the provision of section 285 (1) (d) of the constitution then such decisions if they exist should be considered per incuriam. That since the provisions of section 285 (1) (d) of the Constitution are clear and unambiguous to the effect that the Tribunal has original jurisdiction over the competence of a petition the matter need not be flogged. That paragraph 49 (2) of the schedule to the Electoral Act 2006 by its wording foresees proceedings that otherwise would be a ‘nullity’ surviving to judgment simply because a Respondent did not act when he should have. He said in any case by virtue of Section 285 (1) (d) the 1st Respondent cannot argue this ground of their Preliminary Objection for the first time on appeal on the second ground of the Preliminary objection, learned counsel for the Appellant contended that Section 141 of the Electoral Act 2006 is of a special breed because paragraph 43 (1) of the schedule to the same Act has provided for enlargement of time to file petitions. He cited Maduako v. onyejiocha (2009) 5 NWLR (Pt. 1134) 259 at 268-280).
Mr. Olowokure stated on that the Court of Appeal under Section 15 of the Court of Appeal Act has on countless occasions used its inherent powers to ensure appeals are duly heard on their merits as the justice of the case demands. He referred to paragraph 51 of the schedule to the electoral Act 2006. That the Electoral Act 2006 has not taken away the powers of the Court of Appeal to extend the time to appeal if deemed necessary. He cited Haruna v. Modibbo (2004) 16 NWLR (pt.900) P.487 at 537-538 G-A.
Learned counsel for Appellant went on to say that by virtue of the combined provisions of paragraphs 49 (1) and (2) of the Schedule to the Electoral Act 2006, this preliminary Objection relating to the date of this appeal was filed is incompetent and this Court should proceed with hearing the appeal as if same was not made. He said Appellant has sought to move other Motions and 1st Respondent had objected and this includes when appellant sought leave of Court to argue an additional ground against an interlocutory decision so the original permissible grounds of appeal were added to and 1st Respondent was participating. That paragraph 49 (2) of the Schedule to the Electoral Act recognizes that an Appellant could even do an act which ordinarily would be a “nullity’ rather than an “irregularity” but the Respondents tardiness could and should in this case shut him out from complaining. That this Preliminary Objection should be dismissed as lacking in merit.
That is in summary the arguments in respect of the Preliminary Objection pursued by the Respondent. The law recognizes that non-compliance with electoral provisions or commissions of electoral offences do occur. They occur in many instances. But the law is more concerned with the extent – how far and wide they did occur. And also how substantially did they affect the election result.

An election petition is sui generis and time is of the essence and the procedure is not governed by the ordinary civil rules of procedure. Mark v. Abubakar (2009) 2 NWLR (pt. 1124) 79 at 106 – 107.
It cannot be lost sight of that there is an obligation upon any party to an action to comply with the statutory provisions of any enactment relevant to his cause. See Ekechi v. Okah (1993) 1 NWLR (pt. 267) 34 at 47.
The Response by the Appellant is anchored on the provisions of the Interpretation Act, Section 15 (2) (a) thereof which provides that 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 occurred. In so saying he referred to the case of Atikpekpe v. Joe (1999) 6 NWLR (pt. 607) 428 at 437.
The question that is thrown up is if that provision applies in all instances of the computation of time. In answer, I will refer to an earlier decision of this Court per Ngwuta JCA. He said, and I quote:-
“The provision of the Interpretation Act does not necessarily apply in all cases of construction of Acts of the National Assembly or other enactment. Its application is subject to two limitations, one in-built in the act itself and the other based on case law; that is:
(a) the self restraint in the application of the Act (including Section 15 (2) is contained in Section 1 of the Act which states that the act is not applicable”…
In so far as the contrary intention appears in this Act or the enactment in question”.
(b) there is a plethora of case law to the effect that clear, explicit and unambiguous provisions of an enactment must be given their natural, literal and grammatical meanings without a resort to any internal or external aid in construction. In this case, there is no intention in the Interpretation Act or the Electoral Act to exclude the former in the interpretation of the Electoral Act, 2006 but the case law makes it clear that the Interpretation Act is not applicable in the interpretation of Section 141 of the Electoral Act, 2006″,
Action Congress v. Jang (2009) 4 NWLR (pt 7732) 475 at 504-505 per Ngwuh JCA. Bakare v. N.R.C. (2007) 77 NWLR (pt. 1064) 606.

In the construction of statements, where the words are clear and unambiguous, the ordinary natural meaning of the words used should be applied. The words should be accorded their literal meaning without any interpretation and without resorting to external aid. Atikpekpe v. Joe (1999) 76 NWLR (pt. 607) 428; Atuyeye v. Ashamu (1987) 1 NWLR (pt. 49) 267; Abioye v. Yakubu (1991) 5 NWLR (pt.190) 130; Ojokolobo v. Alamu (1987) 3 NWLR (pt. 61) 377; Orubu v. N.E.C. (1988) 5 NWLR (pt. 94) 323; Nwanezie v. Idris (1993) 3 NWLR (pt. 279) 1.
In order to properly interprete any statute, it is necessary to consider how the law stood when the statute to be construed as in this instance the Election Act 2006, was passed, what the mischief was for which the old law had not provided and the remedy provided by the statute to cure that mischief. I refer to Terab v. Lawan (1992) 3 NWLR (pt. 231) 569.

Section 141 of the Electoral Act 2006 provides as follows:-
Section 141:
“An Election Petition under this Act shall be presented within Thirty (30) days from the date the result of the election is declared”.
This provision is stated in clear, unambiguous terms and leaves no room for assistance from elsewhere including the Interpretation Act since the Electoral Act Section 141 has its interpretation embedded within. Therefore when the Appellant presented his Petition on the 29th May, 2007 instead of 28th May, 2007 or earlier he was a day outside the prescribed period. His Petition had ceased to exist and nothing could resurrect a dead petition. The Appellant having failed in his obligation to comply with the mandatory provisions of the Electoral Act acted in vain in filing it on the 29th May, 2007. See Ekechi v. Okah (1993) 1 NWLR (pt- 267) 34 at 47.
The conclusion therefore is that the Tribunal lacked jurisdiction to entertain the petition of the petitioner now Appellant, The Tribunal having had its jurisdiction ousted by the effluxion of time, of the presentation of the petition, there is equally no jurisdiction in this court adjudicating on an appeal so called proceeding from that void process. Section 141 of the Electoral Act stipulated 30 days within which to present an election petition and this is a condition precedent which foists jurisdiction on the Tribunal. For the purpose of the section, time begins to run when there is in existence a person who can sue and another who can be sued and all the facts have happened which are material to be proved to entitle the petitioner to succeed. Akume v. Lim (2008) 16 NWLR (pt.1114) 490; Fadare v. Attorney General Oyo State (1982) 13 NSCC 52; Alataha v. Asin (1999) 5 NWLR (pt. 601) 32; Odubeko v. Fowler (1993) 7 NWLR (pt.308) 637; Jallco Ltd. v. Owoniboys Tech’ Services Ltd. (1995) 4 NWLR (Pt. 391) 34.

Limitation legislation sets out the limitation periods for different classes of cases. This in effect means that certain classes of action cannot be brought after a period of time from the date the cause of action accrued. Therefore non-compliance with the statutory provisions as to time within which to file an election petition is a fundamental pre-condition, a breach of which is incurable and that failure is fatal thereby robbing the court of the jurisdiction to entertain the petition. Akume v. Lim (2008) 6 NWLR (pt.1114) 490; Balogun v. Odumosu (1999) 2 NWLR (pt. 592) 590; Elabanjo v. Dawodu (2006) 15 NWLR (pt. 1001) 76; Ogbebor v. Danjuma (2003) 15 NWLR (pt. 843) 403; Nnonye v. Anyichie (1989) 2 NWLR (pt. 101) 110.

Also leave is not a necessity as long as the parties have the right to know and react. Ekiti Local Government Area v. Aje Printing (Nig.) Ltd (2009) 4 NWLR (pt 1133) 304; Ayinke Stores Ltd v. Adebogun (2008) 10 NWLR (pt. 1096) 612; Mark v.Abubakar (2009) 2 NWLR (pt. 1124) 79 at 107.

In the prevailing circumstances the Petition in the first instance lacking competence and thereby robbing the Tribunal of the necessary jurisdiction, going into the matter of the appeal having been brought out of time seems to me a waste of time and a delving into the realm of theories and academic discourses which luxury this court cannot afford. The Preliminary Objection of the 1st Respondent has effectively succeeded and I uphold it. This appeal is still born and I do not hesitate in striking it out. For clarity the Election Result as declared by the 2nd and 3rd Respondents remains valid, that is that the 1st Respondent, Muhammad Kabir Jibril is the duly elected Senator for Kaduna Central Senatorial District of Kaduna State.
Costs of N100,000.00 to the 1st Respondent to be paid by the Appellant.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read in draft the leading judgment just delivered by my learned brother, Mary Peter-Odili, J.C.A., and I agree with his reasoning and conclusion in view of the decision of the full Panel of this court in Kumaria vs. sheriff (supra). I only wish to observe that had the legislators intended to make a day out of the 30 days stipulated in section 141 to be a period of one hour or two hours or four hours or seven hours instead of a period of 24 hours, it would have expressly or explicitly done so. Also, if it had intended the computation of the 30 days to be inclusive of the date on which the result was held, it would have expressly provided so. The said section merely used the phrase from the date”.
In Jowitts Dictionary of English law 2nd Edition, Vol. 1 at p. 838, where the word “from” was defined, it was categorically stated to exclude the day from which the time is to be reckoned, but is construed inclusively of that day, if the con requires.

It is stark that the phrase, “inclusive of the date of declaration of the election result was never by any implication stated in or required by section 141 of the Electoral Act. Also, the phrase “inclusive of the date”, was not contemplated by the Legislators.
It is a known principle, without ordinarily resorting to the statute of interpretation, that inclusion of the date from which the time starts to run, must be expressly stated in the statute governing the event, otherwise, the general rule of exclusion of the date in computing time shall apply.
In Ackland vs. Lufley (1839) 9 AD and EL 879, Lord Denman said that where an interest is expressed to run from a particular date, prima facie, the interest begins at the named day.
It means, therefore, that the date which started time running should be excluded from the computation of time, is to be calculated exclusively of the day on which the event occurred.
Be that as it may, since the full panel of this court had set down the principle, one does not have any option but to abide by it. Accordingly, this preliminary objection is hereby sustained, and, the appeal is hereby struck out.

JUSTICE JOSEPH TINE TUR, J.C.A.: I have had the advantage of reading in draft the lead judgment delivered by my Lord, Hon. Justice Mary U. Peter – Odili, J.C.A. I am in total agreement with the review of the facts, reasons and final conclusions. I shall add just a few words of mine to the lead judgment.
Elections into the Kaduna State Senatorial Central District was held on 28th Day of April, 2OO7 and the result declared on 29th April, 2007 in favour of the 1st Respondent. The appellant presented the petition before the Tribunal on 29th May, 2007 to challenge the return of the 1st Respondent by the 2nd Respondent. The preliminary question for determination at the Tribunal was whether the petition was presented within or outside the time stipulated under the Electoral Act 2006 which provides as follows:
“141 An election petition under this Act shall be presented within thirty days from the date the result of the election is declared.”

The legislative intention is to be garnered from reading the whole words and phrases in section 141 of the Electoral Act 2006 and not any other previous Electoral Acts relating to the filing or presentation of petitions at Election Tribunals. Section 141 of the Electoral Act 2006 uses the phrase “…under this Act…” See Osho vs Phillips (1972) 1 All NLR (pt 1) 276 at 285; Oyeyemi vs Commissioner for Local Government Kwara State (1992) 2 SCNJ (pt. 2) 266. Therefore, as far as the presentation of petitions before Election Tribunals is to be done under the Electoral Act 2006 but no other, the thirty days period is to commence “… from the date the result of the election is declared.” The election was held on 28/4/2007 and the result declared on 29/4/2008 while the petition was presented on 29/5/2007, namely, thirty-one (31) clear days outside the thirty (30) days period stipulated by the legislature under section 141 of the Electoral Act 2006.
Jurisdiction to determine electoral disputes is conferred on Election Tribunals by Statute. A petition presented under section 141 of the Electoral Act 2006 outside the thirty day period is incompetent. What is incompetent is usually struck out. See Akume vs Lim (2008) 16 NWLR (pt 1114) 490. Where a Court has no jurisdiction the judge cannot make binding orders. See Nyarkwo vs Akowuah 14 WACA 426; Ede v. Commissioner for Works and Housing (1980) 1 PLR 318 at 326 and Ogbebor v Danjuma (2003) 15 NWLR (Pt.843) 403.
I also join my Lord, Hon. Justice Mary U. Peter – Odili J.C.A in striking out the petition. I abide by any order made in the lead judgment.

Appearances

O. O. Olowokure, N. O. Okafor, A. M. Akinleye, J. B. ArdoFor Appellant

AND

F. E. Aigbovo, Sekinat Salihu for the 1st Respondent

N. H. Auta for the 2nd & 3rd RespondentsFor Respondent