ALADETAN O. V. OGUNYEMI WOLE J. & ORS.
(2010)LCN/3563(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of February, 2010
CA/B/EPT/313/08
RATIO
WORDS AND PHRASES: MEANING OF JURISDICTION
The term’ jurisdiction of court’ means, the limits which are imposed upon the power of the court to hear and determine issues between persons seeking to avail themselves of its process by reference to the following factors viz:
(1) the subject-matter of the issue or
(2) the persons between whom the issue is joined or
(3) the kind of relief sought or the combination of these factors.
Jurisdiction embraces the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its purview or as to the circumstances in which it will grant a particular kind of relief which it has the power to grant, including its settled practice to refuse to exercise such powers, or to grant such relief in particular circumstances. See the case of:
Orubu v. N.E.C. (1988) 12 S.C. (Pt. III) p. 1. PER OYEBISI F. OMOLEYE, J.C.A
JURISDICTION: WHEN CAN THE ISSUE OF JURISDICTION BE RAISED IN A PROCEEDING
The law is settled that, the issue of jurisdiction can be raised at any stage of court’s proceedings, even on appeal at the Supreme Court. It can also be raised in any manner by any of the parties in an action or even ‘suo motu’ by the court. Therefore, it is no longer a moot point that the question of jurisdiction is of absolute importance in court’s adjudicatory system. It is the blood and the life of adjudication. It cloths the court with the power to hear and determine all causes brought before it. Without it, a court is not only completely devoid of power to adjudicate, it becomes lameduck in respect thereof. This is because when a court is bereft of jurisdiction, everything done by it is an exercise in futility and amounts to a total nullity. Therefore, the matter of jurisdiction can not be waived or compromised by either litigants or the courts; it is far from trivial, but a grave matter that must be foremostly thrashed out. See the cases of:
(1) Madukolu v. Nkemdilim (1962) 2 SCNLR p. 341;
(2) Tidex (Nig) Ltd. v. Maskew (1998) 3 NWLR (Pt. 542) p.404;
(3) A.S.T.C. v. Quorum Consortium Ltd. (2009) 9 NWLR (Pt. 1145) p. 1 and
(4) Shelim v. Gobang (2009) All FWLR (Pt. 496) p. 1866. PER OYEBISI F. OMOLEYE, J.C.A
WORDS AND PHRASES: MEANING OF SHALL
It is trite that where the provisions of a statute is garbed with the word “shall” as in the instant provisions, it connotes that it is imperative for the provisions to be obeyed. I refer to the case of: Kalamu v. Gunrim (2003) 16 NWLR (Pt. 847) p. 517; where it was held that:
It is no longer in doubt that the word ‘shall’ when used in a statute or rule of court, makes it mandatory that the rule must be obeyed. In other words, generally, the term ‘shall’ is a word of command and denotes obligation and this gives no direction, it imposes a duty. PER OYEBISI F. OMOLEYE, J.C.A
WORDS AND PHRASES: MEANING OF WITHIN
The word “within” is defined as: inside, enclosed by something within those four walls, not outside the limit of something, not beyond – see, Chambers 21st Century Dictionary. PER OYEBISI F. OMOLEYE, J.C.A
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME (Ph. D) Justice of The Court of Appeal of Nigeria
Between
ALADETAN O. Appellant(s)
AND
1. OGUNYEMI WOLE J.
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. RESIDENT ELECTORAL COMMISSIONER, ONDO STATE
4. THE RETURNING OFFICER, ILAJE
CONSTITUENCY 1, ILAJE LOCAL GOVERNMENT AREA
5. THE NIGERIAN POLICE
6. COMMISSIONER OF POLICE, ONDO STATE
7. THE NIGERIAN ARMY Respondent(s)
OYEBISI F. OMOLEYE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Governorship/Legislative Houses Election Tribunal (hereinafter referred to as the Tribunal) sitting in Akure, Ondo State, delivered on 17th July, 2008.
The Appellant, Mr. O. Aladetan contested in the general election held on 14th April, 2007, into the Ondo State House of Assembly, for Ilaje Constituency I in Ilaje Local Government Area under the platform of Peoples Democratic Party (PDP). The 1st Respondent, Mr. Wole J. Ogunyemi, the candidate fielded by the Labour Party also contested for the same seat in the said election. At the end of the election, the Appellant was declared winner and duly returned by the 2nd Respondent.
The 1st Respondent was dissatisfied with the return of the appellant he filed a petition at the Tribunal. At the end of the trial of the petition the Tribunal upheld the petition of the 1st Respondent and nullified the election of the Appellant. The 2nd Respondent was ordered to conduct a bye-election in the constituency within six days from the date of the judgment.
Dissatisfied with that judgment, the Appellant brought the instant appeal wherein he challenged the said order for the bye election. By the order of this Court, the Appellant filed an Amended Notice and Grounds of Appeal containing ten grounds of appeal. The learned senior counsel for the Appellant, Mr. LA. Adedipe SAN filed the Appellant’s brief of argument on 25.3.09. The said brief was deemed properly filed and served on 19.5.09. In it, the Appellant raised seven issues for the determination of this appeal. These read as follows:
1. Whether the Petition which was filed on the 15th of May, 2007 was within time, as prescribed by Section 141 of the Electoral Act 2006 to entitle the Tribunal to exercise jurisdiction over its hearing and determination having regard to the/act that the result of the election was declared on 14th April, 2007?
2. Was the Tribunal correct in holding that the Petition was to be determined on the preponderance of evidence in the light of the serious criminal allegations upon which it was based?
If the answer is no, did the error not occasion a miscarriage of justice to the Appellant?
3. Whether the Tribunal was correct in law in using the result of the ballot recount, as basis for discrediting, and rejecting statutory INEC forms on the ground that the number of ballots counted was less than the figures entered into INEC statutory form?
4. Whether Exhibit ‘R’, a letter written by an INEC staff, six months after the election and during the pendency of the Petition, is legally admissible, and could be accorded the full weight given to it by the Tribunal, even when it was not pleaded, and was not put in through any witness?
5. Was the Tribunal correct in admitting in evidence, various documents that were merely produced which were never put through any witness to enable the Appellant cross-examine on their authenticity, on the ground that they were relevant?
6. Was the Tribunal correct in holding that since political office holders signed INEC result sheet without any documentary proof that such individuals are, in fact, and, in law, political office holders? And is the fact of the signing of INEC Statutory Forms as a witness a ground for the nullification of such result?
7. Whether the Tribunal applied the correct legal approach to the evaluation of the evidence adduced to justify its rejection of the evidence of the witnesses of the Appellant?
A brief of argument was filed for the 1st Respondent by their learned counsel, Dr. O.F. Ayeni. It was deemed properly filed and served on 19th May, 2009. In it, learned counsel formulated a single Issue for the determination of this appeal. The sole issue states thus:
Considering the overwhelming documentary evidence put forth before the Tribunal, coupled with the oral evidence of the petitioner, whether the Tribunal was not right to have relied on same to have arrived at its conclusions and judgment?
The learned counsel for the 1st Respondent in addition to the sole issue formulated by him filed a reply to issue one as formulated by the Appellant’s learned senior counsel. The submissions thereon are contained in paragraphs 3.01 to 3.35 at pages 46 to 59 of the 1st Respondent’s brief of argument.
Responding to this appeal, the 2nd – 4th Respondents on the one part filed a joint brief of argument on 21st May, 2009. Therein, their learned counsel adopted all the seven issues formulated by the Appellant for the determination of this appeal.
On another part, the 5th and 6th Respondents equally reacted positively to and in support of the posturing of the Appellant filed a Notice of Preliminary Objection. It is dated 26th January, 2009 and filed on 30th January, 2009. ‘Vide’ the said objection, the 5th and 6th Respondents sought the following reliefs:
1. AN ORDER striking out petition No. EPT/OND/SH /26/07 filed on 14/5/07 for absence of legal life having been statute barred.
2. AN ORDER setting aside the judgment of the Tribunal in respect of the said petition delivered on 17/7/2008 for being void on the ground of absence of jurisdiction.
3. AN ORDER striking out the Appeal for want of jurisdiction.
The objection was predicated on the following grounds:
(i) Section 141 of the Electoral Act, 2006 makes it mandatory that the petition under the Act “shall be presented within thirty (30) days from the date the result of the election is declared.”
(ii) The result of the election was declared on 14th April, 2007 and the Petition was filed on 14th May, 2007, thirty-one (31) days after the said declaration and therefore statute barred.
(iii) The Tribunal lacks jurisdiction to have entertained it.
(iv) The judgment of the Tribunal from which the present appeal arose is void and a nullity ab initio.
(v) The inherent jurisdiction of this Court has to be invoked to strike out the incompetent Petition intoto and to set aside the judgment of the Tribunal in this appeal in order to save time and cost.
Filed along with the notice of the preliminary objection is the brief of argument of the 5th and 6th Respondents in respect thereof. Therein, a sole issue was identified for determination. This issue states thus:
Whether the petition of the 1st Respondent was presented at the Tribunal within the period prescribed by Section 141 of the Electoral Act, 2006 and whether the judgment of the Tribunal being appealed, in respect thereof, is valid in law?
At the hearing of this appeal on the 10th November, 2009, the learned counsel Mr. J .C.A Idachaba identified the brief of argument in support of the notice of preliminary objection filed by him for the 5th and 6th Respondents.
He adopted, relied on the said brief of argument and urged this Court to uphold the objection, strike out the petition filed at the Tribunal by the 1st Respondent for incompetence, the provisions of Section 141 of the Electoral Act, 2006 having been contravened.
The learned senior counsel for the Appellant, Mr. I.A. Adedipe SAN, adopted and relied on the Appellant’s brief of argument. By way of emphasis, he referred to INEC Form EC8E(i), the declaration of election result document, Exhibit K, wherein it was indicated that the election result was declared on 14th April, 2007. He also pointed the attention of this Court to the petition of the 1st Respondent which was filed by him at the Tribunal on 15th May, 2007 as contained in pages 1 – 6, Vol. 1 of the record of appeal. He urged upon this Court to hold that the said petition was filed out of time, incompetent and the Tribunal thereby lacked the requisite jurisdiction to adjudicate upon same. And that the petition ought to and should be struck out accordingly.
Dr. O.F. Ayeni, the learned counsel for the 1st Respondent identified, adopted and relied on the 1st Respondent’s brief of argument in urging this Court to dismiss both the preliminary objection of the 5th and 6th Respondents and this appeal for being unmeritorious.
The learned counsel Mr. Ameh Igbochi adopted and relied on the 2nd – 4th Respondent’s brief of argument filed by him. He urged this Court to uphold the preliminary objection filed against the appeal by the 5th and 6th Respondents and also allow the appeal.
I have carefully perused and considered all the processes filed by the respective parties, the submissions of parties’ counsel alongside the various legal authorities relied upon by them and most importantly the record of appeal. It is so patent that the major bone of contention in this appeal is the issue of jurisdiction. That is: whether the petition in dispute was competent so as to vest jurisdiction on the Tribunal to determine same? This is indeed the purport of the preliminary objection of the 5th and 6th Respondents and issue one formulated by the Appellant’s counsel for the determination of this appeal. The said issue of jurisdiction being very germane must and shall be determined in priority.
The term’ jurisdiction of court’ means, the limits which are imposed upon the power of the court to hear and determine issues between persons seeking to avail themselves of its process by reference to the following factors viz:
(1) the subject-matter of the issue or
(2) the persons between whom the issue is joined or
(3) the kind of relief sought or the combination of these factors.
Jurisdiction embraces the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its purview or as to the circumstances in which it will grant a particular kind of relief which it has the power to grant, including its settled practice to refuse to exercise such powers, or to grant such relief in particular circumstances. See the case of:
Orubu v. N.E.C. (1988) 12 S.C. (Pt. III) p. 1.
The law is settled that, the issue of jurisdiction can be raised at any stage of court’s proceedings, even on appeal at the Supreme Court. It can also be raised in any manner by any of the parties in an action or even ‘suo motu’ by the court. Therefore, it is no longer a moot point that the question of jurisdiction is of absolute importance in court’s adjudicatory system. It is the blood and the life of adjudication. It cloths the court with the power to hear and determine all causes brought before it. Without it, a court is not only completely devoid of power to adjudicate, it becomes lameduck in respect thereof. This is because when a court is bereft of jurisdiction, everything done by it is an exercise in futility and amounts to a total nullity. Therefore, the matter of jurisdiction can not be waived or compromised by either litigants or the courts; it is far from trivial, but a grave matter that must be foremostly thrashed out. See the cases of:
(1) Madukolu v. Nkemdilim (1962) 2 SCNLR p. 341;
(2) Tidex (Nig) Ltd. v. Maskew (1998) 3 NWLR (Pt. 542) p.404;
(3) A.S.T.C. v. Quorum Consortium Ltd. (2009) 9 NWLR (Pt. 1145) p. 1 and
(4) Shelim v. Gobang (2009) All FWLR (Pt. 496) p. 1866.
It is for the above reasons that it behoves me to first determine the issue of jurisdiction raised by the 5th and 6th Respondents on the first part and the Appellant on the Second part. This is because the outcome of same will determine whether or not the appeal will be heard on its merit.
Consequently, I will proceed now to consider and resolve the issue of jurisdiction upon which the preliminary objection of the 5th and 6th Respondents and issue one of the Appellant are anchored. In this regard, the submissions contained in paragraphs 3.01 to 3.35 of the 1st Respondent’s brief of argument and the submissions contained in paragraphs 5.01 to 5.03 of the 2nd – 4th Respondents’ brief of argument shall equally be reviewed.
The learned counsel for the 5th & 6th Respondents argued that ab initio the petition in controversy has no legal life for its existence having been presented thirty-one days after the declaration of the result of the election as against the irreducible and mandatory requirements of “within thirty days” provided for in Section 141 of the Electoral Act, 2006. And going by the clear and unambiguous wordings of Section 141, the intention of the Legislature has been manifestly, positively and unequivocally expressed such that no one is left in doubt as to the time frame for the presentation of an election petition by a party dissatisfied with the conduct of the election. The most important word to look out for in order to drive home the point being made is, “within”. The word is used in the provisions to prescribe the time frame for the presentation of a petition under the Act. He referred to Oxford Advanced Learner’s Dictionary (New 7th Edition) at page 1691, where the word ‘within’ is defined as:
before a particular period of time has passed; during a particular period of time; …not further than a particular distance from sth; inside the range or limits of sth…
Accordingly, by the provisions of Section 141, for there to be a valid petition for the invocation of the jurisdiction of an Election Tribunal, the petition shall be presented within thirty days and not thirty days from the date when the result was declared. The petition under discuss was filed on 14/5/2007, thirty-one days from 14/4/2007 when the result of the election was declared. Therefore, the petition is statute barred and voids ab initio having violated the mandatory provisions of Section 141. He rested this position on the cases of:
(1) AC v. Jang (Unreported) Appeal No. CA/J/EP/GOV/275/2007, Delivered on 26th February, 2006;
(2) Independent National Electoral Commission & Ors v. Alh. Abubakar Habulshaide & Ors (Unreported) Appeal No. CA/J/EP/GOV/317/2007 Delivered on 5th June, 2008 and
(3) Agbaji v. Fashola (2008) 6 NWLR (pf. 1082) p. 90 at p. 105.
The mere fact that none of the parties’ mind was adverted to this very fundamental flaw in the petition and the issue was not raised at the Tribunal would not breathe any life into the petition and validly confer trial jurisdiction on the Tribunal. Therefore, the absence of jurisdiction renders the judgment of the Tribunal being appealed a complete nullity. The judgment had no legal hanger to rest on. This is because you cannot put something on nothing and expect it to stand. And the issue of substantial justice would not arise where challenge of jurisdiction is in issue. The penalty of an invalid petition is a striking out of same, the judgment flowing therefrom and the appeal thereon. He referred to the following authorities among a host of others:
(1) Hon. Barr. Mohammed Umaru Kumalia v. Senator Ali Modu Sheriff & Ors. (2008) All FWLR (pt. 431) p. 103 at pgs. 1034 -1034;
(2) Macfoy v. UAC (1961) 1 ALL ER p. 1172;
(3) Madukolu v. Nkemdilim supra at p. 594;
(4) Skenconsult (Nig.) Ltd. v. Ukeh (1981) 1 Sc. p. 6;
(5) Onisere v. Oyeleye (2008) All FWLR (Pt. 446) p. 1826 at p. 1839 and
(6) Otu v. INEC (1999) 5 NWLR (Pt. 602) p. 250;
The learned senior counsel for the Appellant was at one with the posture of the 5th & 6th Respondents. He submitted that, the Petition under fire ‘ex-facie’ was filed on the 15th of May, 2007 at the Registry of the Governorship/Legislative Houses Election Tribunal, Akure. On the 14th April, 2007, the election to the Ondo State House of Assembly, alongside that of the governorship, was held in Ondo State. That same date, the result of the Election to the Constituency was declared and the Appellant was returned. Therefore upon the declaration of result, and the return of the Appellant as the winner of the election, a cause of action has accrued to whosoever is dissatisfied with that declaration.
The provisions of Section 141 are simple, and clear enough. The effect is that, if any petition is filed outside the thirty days period, it will be statute barred. In calculating the number of days, the date of declaration of the result will be included. This is because that was the date the cause of action accrues. In this connection, as at 15th of May, 2007 when the 1st Respondent filed his petition, same was already late, having been filed two days late. On the above standpoint of the learned senior counsel, reliance was placed on the cases of:
(1) Ogbebor v. Danjuma (2003) 13 NWLR (Pt. 843) p. 403;
(2) George Akume v. Simon A. Lim (Unreported) Court of Appeal decision in Appeal No. CA/J/EP/SN/107/2008;
(3) Alataha v. Asin (1999) 5 NWLR (Pt. 600) p. 1 at p. 44.
The learned senior counsel for the Appellant reiterated that, where an election petition is found to be incompetent, the only option left open to the Court is to strike it out. He relied on the case of: Dickson v. Balat (2004) All FWLR (Pt. 215) p. 289 at p. 306 para C. Consequent upon the standpoint, definitely the Tribunal had no jurisdiction to entertain the petition as same was statute barred. The fact that the matter proceeded to judgment on the merit is of no moment. For, no amount of waiver and acquiescence can confer validity on an incompetent process or confer jurisdiction on court which has no jurisdiction. Jurisdiction is very vital in the realm of administration of justice. It is the bedrock of trials. Any trial without jurisdiction, however well conducted is a nullity. And any final pronouncement by a court or tribunal without jurisdiction is an exercise in futility. On this legal principle, he relied on the cases of:
(l) Nwancho v. Elem (2004) All FWLR (Pt. 225) p. 93 at p. 110 para. A.
(2) Enemuo v. Duru (2006) All FWLR (Pt. 304) p. 508 and
(3) Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) p. 203 at p. 236.
For the 2nd – 4th Respondents, their learned counsel agreed with the line of reasoning of the learned senior counsel for the Appellant and the 5th & 6th Respondents. He submitted that the issue of jurisdiction cannot be waived or acquiescence and parties cannot by their consent confer jurisdiction on the court where it is clear that the court lacks jurisdiction.
On the issue of the statute of limitation as a defence, the effect is that the petitioner in this matter, the 1st Respondent, had no cause of action. And consequently, the proceedings of the Tribunal and its judgment are a nullity having being conducted without jurisdiction.
(1) P.N. Uddoh Trading Co. Ltd. v. Abere (2001) FWLR (Pt. 57) p. 900 at p. 922 paras. F – G;
(2) Inyang v. Ebong (2002) F.W.L.R (Pt. 125) p. 703 at p. 744 paras. E – G and
(3) Nuhu v. Ogele (2004) FWLR (Pt. 193) p. 362 at p. 385 para. B.
Contrariwise, the learned counsel for the 1st Respondent contended that, the petition of the 1st Respondent was filed within time. He referred to INEC Form EC8E(i), that is Exhibit K, which has on it 15th April, 2007 as the date the election result was declared. He relied on the provisions of Section 125 of the Evidence Act and the case of Awojugbagbe Light Ind. Ltd. v. Chinukwe (1993) 1 NWLR (Pt. 270) p. 485 at pg. 505; and urged this Court to hold that the contents of Exhibit K are correct. The learned counsel for the 1st Respondent reiterated the legal position that, in the computation of the days within which to do an act, after the occurrence of an event, the date of the occurrence of the event is excluded as the law does not take account of a fraction of a day. Hence, in his opinion, the 15th of April, 2007, when the result of the election under consideration was declared, is excluded in the computation of time. Therefore, the thirtieth day from the date of declaration of result will be the 15th of May, 2007, which was the date the petition was filed. On this standpoint, he relied on the cases of:
(1) Ivirhiaro v. Usoh (1999) 4 NWLR (Pt. 597) p. 41;
(2) Akeredolu & Ors. v. Akinremi (1985) 2 NSCC p. 1283;
(3) Yusuf v. Obasanjo (2003) 16 NWLR (pt. 847) p. 554 and
(4) P.D.P. v. Haruna (2004) 16 NWLR (Pt. 900) p. 597.
He submitted that the decisions of the Court of Appeal in the cases of: (1) Ogbebor v. Danjuma supra, (2) George Akume v. Dr. S.A. Lim supra and (3) Alataha v. Asim also supra, were per incuriam. And it is in defiance to the principle of “stare decisis” that, a point of law that has been settled by a superior court should be followed. For the Court of Appeal in those cases did not follow the decisions of the Supreme Court in the cases of: (1) Akeredolu v. Akinremi supra and (2) Yusuf v. Obasanjo also supra.
Dr. Ayeni argued that, the Electoral Act contains no internal rule by which the various periods it prescribes for taking certain steps should be computed. And that the Electoral Act is also silent on what will happen if the last day of doing an act, in the instant scenario, the presentation or filing of a petition, falls on a public holiday, that is, Saturday or Sunday or a day declared to be a public holiday by any Government in Nigeria. In his opinion, in this situation, recourse must be had to the relevant provisions of the Interpretation Act and the Federal High Court (Civil Procedure) Rules, 2000; that is, Section 15 and Order 23 rule 1 respectively. By the combined reading of these two provisions, the reckoning of the number of days within which to carry out an act from the occurrence of an event is exclusive of the date the event occurred. He relied on the two foreign cases of;
(1) In re North Ex Parte Hasluck (1895) 2 QR p. 265 at pgs. 269 – 270 and
(2) Pritam Kaur v. Russels & Sons Ltd. (1973) YORD p. 336 at p. 348.
I have painstakingly considered the submissions and the host of legal authorities relied upon by the learned counsel for all the parties on the issue of jurisdiction.
Section 141 of the Electoral Act, 2006 makes provision for the time frame for the filing of an election petition. For easy reference, I hereunder reproduce same as follows:
An Election Petition under this Act shall be presented within thirty (30) days from the date the result of the Election is declared. (The underlined is for emphasis)
The law is settled that, where the provisions of a statute are clear, unambiguous and without the garment of absurdity, same shall be given their ordinary or literal grammatical meaning and it shall be legally wrong to resort to any other legislation for interpretation. See among many others, the cases of:
(1) Uwagba v. F.R.N (2009) 15 NWLR (Pt. 1163) p. 91 at p.113;
(2) Toriola v. Williams (1982) 7 SC p. 27 at pgs. 47 – 48 and
(3) Santana Medical Servo Ltd. v N.P.A. (1999) 12 NWLR (Pt. 630) p. 189.The two operative words in the above quoted Section 141 are “shall” and “within”
It is trite that where the provisions of a statute is garbed with the word “shall” as in the instant provisions, it connotes that it is imperative for the provisions to be obeyed. I refer to the case of: Kalamu v. Gunrim (2003) 16 NWLR (Pt. 847) p. 517; where it was held that:
It is no longer in doubt that the word ‘shall’ when used in a statute or rule of court, makes it mandatory that the rule must be obeyed. In other words, generally, the term ‘shall’ is a word of command and denotes obligation and this gives no direction, it imposes a duty.
The word “within” is defined as: inside, enclosed by something within those four walls, not outside the limit of something, not beyond – see, Chambers 21st Century Dictionary.
It is my view and indeed the posturing of this Court that the provisions of Section 141 are very clear and unambiguous, and that no aid is required in the interpretation of same. They are very explicit hence recourse can not be had to the Interpretation Act or any other statute or rules of court for their interpretation. What is more, although election matters of a truth are a specie of civil matters, it is settled that, they are ‘sui generis ‘. It is the peculiarity of same that necessitated the promulgation of the Electoral Act and the Practice Directions which have made clear provisions and guidelines to regulate and take care of all litigations arising from election matters.
These legislations have completely removed election matters from the ambit and class of general civil matters.
It is an established principle of law that, courts derive their powers from the statutes which created them. And they must operate within the confines of the statutes. It is also settled that, statutes and rules of court must of necessity be obeyed. What is more, one of the conditions which confers jurisdiction on a court is the fulfilment of all the conditions precedent to the institution of an action before it. Therefore, compliance with the provisions of the Electoral Act as to the time an election petition must be filed is a fundamental precondition, a breach of which will result in grave consequences. It is the long standing position of this Court, that the provisions of Section 141 is mandatory and non-compliance with them will render an election petition incompetent, thereby stripping an election Tribunal off its garment of jurisdiction. There are a plethora of legal authorities in this regard. The” “locus classicus” on this position is the case of:
Action Congress v. Jang (2009) 4 NWLR (Pt. 1132) p. 475. See also the cases of:
(1) Okpoido v. Udoikpong (1999) 5 NWLR (Pt. 604) p. 595 at p.604;
(2) Ogbebor v. Danjuma (2003) 15 NWLR (Pt. 843) p. 403 at p.426;
(3) Nnonye v. Anyichie (1989) 2 NWLR (Pt. 101) p. 117 and
(4) A. G., Ondo State v. A-G, Ekiti State (2001) 17 NWLR (Pt. 743) p. 706 at p. 756.
This Court has taken the view that in interpreting Section 141 of the Electoral Act when computing the thirty days within which an election petition must be filed time will begin to run from the very day the election result was declared. Therefore, it is immaterial if the thirtieth day falls on a Saturday or Sunday or a day declared by the Government as a public holiday. See among many others, the cases of:
(1) P. Ikhariale & Anor. v. Theophilus Okoh & Ors. (Unreported) Appeal Nos. CA/B/EPT/221/08
& CA/B/EPT/222/08 delivered on 23rd April, 2009;
(2) A.C. v. Jang (supra);
(3) Kumalia v. Sheriff (2008) All FWLR (Pt. 431) p. 1032 and
(4) Akume v. Lim (2008) 16 NWLR (Pt. 1114) p. 490.
This is because the unique character trait of election matters is that of essentiality of time. Hence, the spirit of the laws regulating them is that, as much as possible, petitions are expeditiously adjudicated upon to enable parties know their status and fate. See the cases of:
(1) Balogun v. Odumosu (1999) 2 NWLR (Pt. 592) p. 590 and
(2) A.C. V. Jang (supra).
In the instant case, parties are “ad idem” regarding the date the petition in dispute was filed. They all agreed that the petition was filed on 15th May, 2007. However, the bone of contention is the actual date the result of the election under consideration was declared. The Appellant, the 2nd -4th Respondents and the 5th and 6th Respondents on the one part stated that the said result was declared on 14th April, 2007. Contrariwise, the 15th Respondent claimed that the result was declared on 15th April, 2007. Without going into the abyss of the contention, by simple arithmetical calculation, if the result was declared on 14th April, it means that the petition was filed thirty days after the said result was declared. If as claimed by the 1st Respondent’s learned counsel that the result was declared on 15th April, it would mean that the petition was filed thirty-one days after the declaration of the result.
I have perused the record of appeal with the accompanying exhibits transmitted to this Court. I find that Exhibit K, INEC declaration of election result Form EC8E(i) bears the 15th April, 2007 as the date the result of the election in dispute was declared. This exhibit was duly signed and stamped by INEC, the 2nd Respondent, indeed, it is the original of the said document. As I stated above and having found that the election result in this matter was declared on 15th April, 2007 and there is no dispute that the petition was filed on 15th May, 2007, it means that, the petition was filed thirty-one days after the declaration of the result of the election.
In the prevailing circumstances, I hold that time began to run on 15th April, 2007, the day the result was declared, and that time ended on 14th May, 2009. Therefore, the filing of the petition in respect of the election on 15th May, 2007 rendered the petition incompetent. The petition was statute barred having been filed outside the period stipulated by Section 141 of the Electoral Act, 2006. By the provisions of Section 141, there is no grace to accommodate any extension of time for the filing of election petitions. Since the petition was statute barred, it means that the Tribunal lacked the competence and jurisdiction to adjudicate upon it. Hence the trial of the petition and the judgment which flowed therefrom amount to an exercise in futility having been conducted and given respectively without the requisite jurisdiction. Consequent upon all I have stated above, I hold that the petition in dispute was incompetent, it is hereby struck out for that reason. I also hold that the judgment of the Tribunal delivered on 17th July, 2008 including the consequential orders contained therein is a nullity and it is hereby set aside. In essence, the preliminary objection of the 5th and 6th Respondents is upheld. Consequently, this appeal must be and is hereby struck out because this Court is devoid of jurisdiction to entertain same.
I make no order for costs.
AMINA A. AUGIE, J.C.A: I have read before now the lead Judgment just delivered by my learned brother, Omoleye, JCA, and I agree with him that the appeal must be struck out because the position of this Court on the issue in contention is that the words “within 30 days from the date the result of the election is declared” means that an Election Petition arising from the date of election must be presented any time between 30 days from the date the result of the election is declared, and it is inclusive of both dates – see Action Congress & Anor v. Jang & ors (2009) 4 NWLR (pt 1132) 475. In effect, until the Supreme Court or another full Court of this Court sees fit to hold otherwise, this Division of the Court of Appeal will not hold to the contrary. It is clear in this case that the result of the election was declared on the 15th day of April 2007, and the Election Petition in question was filed on the 15th day of May 2007.
It may be just a day late, but the fact remains is that it is out of time. The Election Petition was therefore statute-barred and the lower Court lacked the necessary jurisdiction to entertain the Petition from the very beginning.
The said Petition was incompetent and the end result is that the proceedings at the lower Tribunal; the decision of the Tribunal; and the consequential orders made by the Tribunal are a nullity, which must be set aside and they are also set aside by me. I abide by the consequential orders in the lead Judgment including the order as to no costs.
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A: I agree.
Appearances
I. A. Adedipe SAN with him A. Akinyanju and S. OjileFor Appellant
AND
Dr. O.F. Ayeni with him O. Fadare and O. Ebose for the 1st Respondent
Ameh Igbochi for the 2nd-4th Respondents
J.C.A. Idachaba for the 5th & 6th RespondentFor Respondent
