EMMANUEL YISA ORKER JEV ANOR V. UNDER MICHAEL AZA & ORS
(2010)LCN/3573(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of February, 2010
CA/J/EP/HR/111/2008
JUSTICES
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
Between
EMMANUEL YISA ORKER JEV ANOR Appellant(s)
AND
UNDER MICHAEL AZA & ORS Respondent(s)
RATIO
WHETHER OR NOT THE COURT OF APPEAL CAN REVISIT THE QUESTION OF THE INTERPRETATION OF STATUTE
I have no reason, whatsoever, to disagree with the above reasoning and conclusion reached in the lead judgment. Most undoubtedly, the above proposition of law is solidly predicated upon a well founded plethora of authorities. If I may recall, of very recent; this court had a cause to revisit the very vexed question of the interpretation of the provisions of section 141 of the Electoral Act, 2006. In the case of ABULLAHI ADAMU & 1OR VS. HON. TATA UMAR & 68 ORS: Appeal No. CA/J/EP/HA/155/08, judgment delivered on 10/12/09 (unreported) this court aptly held, inter alia thus:
“It must be reiterated, that this court sat as a full court (consisting of five justices) and delivered the two decisions in KUMALIA VS. SHERIFF (supra) and AC & 1 OR VS. JANG (supra), dated 21/01/08 and 02/02/08, respectively. The decisions of the court in the two later appeals in question are to the effect that computation of time for purposes of determining whether or not a petition was validly filed begins to run from the date of the declaration of the result by the electoral authority. That decision, in my view, aptly represents the spirit of the unequivocal provision of section 141 of the Electoral Act, 2006 (supra). PER SAULAWA, J.C.A.
THE CONNOTATION OF THE WORD “FROM” IN RELATION TO TIME
The word ‘from’ has the connotation of immediately, without delay. Where used in a statute, relating to time the event was recorded from the stated period or date. See LADY MAN VS WIRAL ESTATE CO. (1968) 2 ALL ER 197; OGBEBOR VS. DANJUMA (supra); EMEKA VS. EMORADI (2004) 16 NWLR (Pt.900) 433; ALATAHA VS. ASIN (1999) 5 NWLR (Pt.601) 1, respectively.
Most particularly in the case of ALATAHA V. ASIN (Supra), this court was recorded to have authoritatively held, inter alia, at page 44 per SALAMI, JCA (as he then was) thus:
“The time therefore began to run in this case on 7th December, 1998 when Exhibit/or R1 was issued declaring the first Respondent “as being the winner of the election”. The time to sue was upon that day because from that day the petitioners could present their petition against the Respondents and all the material facts required by them to “prove their case had happened.” PER SAULAWA, J.C.A.
Z. A. BULKACHUWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State National Assembly Election Tribunal Makurdi delivered on the 4th of February, 2008.
Upon reading the records of proceedings of the lower tribunal and the appellant’s brief already filed in this court on the 22/10/2009 ordered that parties address it on the competence of the lower tribunal to have heard and determined the petition.
On 26/10/2009 when the matter came up, Orkumah, counsel for the appellant referred this court to pages 1, 26, 28, 30-90, 91-93 all dated 21/5/2007 of the records paragraph 4 at page 14 and mandatory provisions of Section 141 of the Electoral Act, 2006 as interpreted by this court in several decisions, to the effect that the computation of time includes the day that an election result is declared, the petition should have been filed on or before the 20th May, 2007.
That the petition which was filed on 21st May, 2007 was out of time by a day and was therefore incompetent and should have been struck out. He urged the court to so hold.
Uzzi of counsel for the respondent agrees with the appellant’s submission and further refers to paragraph 4 and 5(2) of the petition to show that results were declared on the 21/4/2007 and also relying on Kumalia Vs. Sheriff (2009) 9 NWLR (Part 1146) 420 urged us to strike out the petition having been filed outside the prescribed time as provided by Section 141 Electoral Act, 2006.
We are satisfied, having closely looked at the record of proceedings, that the election result on which the election petition was based was declared on the 21st April, 2007, the petition filed on the 21st May, 2007 was outside the 30 days contemplated by the provisions of Section 141 of the Electoral Act as interpreted by this court in Kumalia Vs. Sheriff (supra).
In the circumstances, we uphold the submissions of the respective counsels for the two parties in its totality. The petition filed on the 21/5/2007 against the declaration of results of 21/4/2007 by the provisions of Section 141 of the Electoral Act, 2006. The lower tribunal lacks the competence and jurisdiction to have heard and determined the petition. The petition as filed on 21/5/2007 is hereby struck out. The lower tribunal’s decision of 4/2/2008 is a nullity.
There shall be no orders as to costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A: This is an appeal against the judgment of the Governorship & Legislative Assembly Election Petition Tribunal holden at Makurdi, Benue State, which was delivered on 04/12/07.
The 1st and 2nd Respondents were the petitioners, while the 1st and 2nd Appellants were the Respondents in the petition No BE/EPT/HR/21/07, filed in the lower tribunal on 25/5/07. By the said petition, the petitioners prayed that the return of the 1st Appellant be declared null, void and of no effect whatsoever on the grounds that he was not validly elected or returned as a member of the House of Representatives, by a majority of lawful votes cast pursuant to the Electoral Act 2006. That the election held on 21/4/07 was marked by intimidation, beating of voters and diversion of election materials etc.
The petition proceeded to trial, at the conclusion of which the lower tribunal delivered a judgment, on 04/02/08, to the effect, inter alia thus:
“Having held that the petitioners have proved that no election was conducted according to law in the constituency, it follows that the 1st respondent was not duly returned by the 3rd respondent as the winner of that election. He was not elected by the majority of lawful votes cast because there were no such lawful votes cast at the election on the 21/4/2007 in Buruku federal constituency. We so hold and we answer issue two in the negative as well.
Consequently, we hold that the petitioners are entitled to their prayers before this tribunal and we grant them the following reliefs:
1. We declare that the election into the House of Representatives held in the Buruku federal constituency of Benue State on 21/4/2007 was pot in substantial compliance with the Electoral Act 2006.
2. The 1st respondent Emmanuel Yisa Jev was not duly elected by the majority of lawful votes cost at the election.”
Not unnaturally; the Appellants were dissatisfied with the said judgment of the lower tribunal. Consequently, they filed a notice of appeal, dated 25/02/08, which was predicated on 4 grounds of appeal.
Parties filed and exchanged their respective briefs of argument. However, in consequence of the directive of this court, both counsel to the respective parties addressed us on 26/10/09, regarding, the vexed fundamental question of whether the petition, filed, on 21/5/07, was filed within the mandatory 30 days – prescribed by section 141 office Electoral Act, 2006.
It is instructive, that counsel; S. A. Orkumah, Esq and Oluwole Osaze Uzze Esq, for the Appellants and 3rd – 212nd Respondents, respectively, were ad idem regarding the very fact, that by virtue of the mandatory provisions of section 141 of the Electoral Act, 2006 and the plethora of decisions of this court interpreting those provisions, the petition in question was filed out of time. Thus, the petition ought to have been struck out by the lower tribunal.
Having accorded an ample consideration of the submissions of the two, learned counsel, there is every cogent reason for me to agree, in toto, with the reasoning and conclusion reached in the ruling (not judgment) of Her Lordship, Bulkachuwa, JCA to the effect inter alia thus:
“In the circumstances, we uphold the submissions of the respective counsels (sic) for the two parties in its totality. The petition filed on the 21/5/2007 against the declaration of results of 21/4/2007 is incompetent having been filed outside the 30 days contemplated by the provisions of section of the electoral Act, 2006. The lower tribunal lacks the competence and jurisdiction to have heard and determined the petition. The petition as filed on 21/5/2007 is hereby struck out. The lower tribunal’s decision of 4/2/2007 is hereby struck out. The lower tribunal’s decision of 4/2/2008 is a nullity.
There shall be no order as to costs.”
I have no reason, whatsoever, to disagree with the above reasoning and conclusion reached in the lead judgment. Most undoubtedly, the above proposition of law is solidly predicated upon a well founded plethora of authorities. If I may recall, of very recent; this court had a cause to revisit the very vexed question of the interpretation of the provisions of section 141 of the Electoral Act, 2006. In the case of ABULLAHI ADAMU & 1OR VS. HON. TATA UMAR & 68 ORS: Appeal No. CA/J/EP/HA/155/08, judgment delivered on 10/12/09 (unreported) this court aptly held, inter alia thus:
“It must be reiterated, that this court sat as a full court (consisting of five justices) and delivered the two decisions in KUMALIA VS. SHERIFF (supra) and AC & 1 OR VS. JANG (supra), dated 21/01/08 and 02/02/08, respectively. The decisions of the court in the two later appeals in question are to the effect that computation of time for purposes of determining whether or not a petition was validly filed begins to run from the date of the declaration of the result by the electoral authority. That decision, in my view, aptly represents the spirit of the unequivocal provision of section 141 of the Electoral Act, 2006 (supra).
By virtue of the provision of section 141 of the Electoral Act, 2006 (supra), the phrase from the date, as couched therein, undoubtedly connotes that the day in which the computation of time is deemed to have commenced is the very-day on which the result of the election was announced.
Apparently, the Electoral Act 2006 deliberately uses the word ‘date’ rather than the word ‘day’ because the two words in question are distinct in their convictions and meanings when used in a statute.
The word ‘from’ has the connotation of immediately, without delay. Where used in a statute, relating to time the event was recorded from the stated period or date. See LADY MAN VS WIRAL ESTATE CO. (1968) 2 ALL ER 197; OGBEBOR VS. DANJUMA (supra); EMEKA VS. EMORADI (2004) 16 NWLR (Pt.900) 433; ALATAHA VS. ASIN (1999) 5 NWLR (Pt.601) 1, respectively.
Most particularly in the case of ALATAHA V. ASIN (Supra), this court was recorded to have authoritatively held, inter alia, at page 44 per SALAMI, JCA (as he then was) thus:
“The time therefore began to run in this case on 7th December, 1998 when Exhibit/or R1 was issued declaring the first Respondent “as being the winner of the election”. The time to sue was upon that day because from that day the petitioners could present their petition against the Respondents and all the material facts required by them to “prove their case had happened.”
In the present circumstances from the express, internal, natural and unambiguous wordings of the provision of section 141 of the Electoral Act, 2006 (supra), it would not only be naive, ridiculous, but also injudicious for this court to hold that it is not bound by the clearly apt decisions in the cases of KUMALIA VS. SHERRIF (supra); AC & GYANG VS. JANG (supra); OGBEBOR VS. DANJUMA; ALATAHA VS. ASIN (supra); et al. And I so hold.” Per Saulawa, JCA at pages 31 & 32.
Hence, as commendably, albeit belatedly, conceded of the respective learned counsel and rightly found in the lead ruling alluded to above, the petition that gave rise to the instant appeal was ‘undoubtedly filed out of the mandatory 30 days time limit, as at 21/5/07. Thus, the said petition is incompetent, and is liable to be struck out. And I so-hold. The petition in question is accordingly struck out by me. The judgment of the lower tribunal delivered on 04/02/08 is a nullity, and same is hereby set aside.
No order as to costs.
UZO NDUKWE-ANYANWU, J.C.A.: Section 141 of the Electoral Act 2006 has been finally interpreted to the satisfaction of parties to Election Petitions. It is now accepted that the 30 days allowed to file an Election Petition starts to run on the date the results are declared and a successful candidate returned.
I congratulate the Appellants counsel even though he had filed his Appellant’s brief but has magnanimously accepted that his Election Petition was filed out of time. This is very commendable and saves the Court’s time to attend to other cases.
This appeal is hereby struck out. I abide by the order as to costs in the lead judgment.
Appearances
S. A. Orkumah;
A. S. Shaakaa and
K. B. Banun,For Appellant
AND
Osaze Uzzi;
Ngunan Denis Ter (Mrs.) and
Stephen IbyemFor Respondent
