OLADELE OLATUNJI V. DR. WOLE OLAKUNDE ORS
(2011)LCN/4526(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of May, 2011
CA/B/EPT/188/2008
RATIO
ISSUE OF JURISDICTION: WHEN CAN THE ISSUE OF JURISDICTION BE RAISED IN A SUIT AND WHO CAN RAISE SUCH ISSUE
The law is now settled that the issue of jurisdiction, being radically and fundamentally important to adjudication, can be raised anyhow, at any stage of the proceedings, even for the first time on appeal and it can be raised by any of the parties to the proceedings or by the court suo motu. See ENUGWU V. OKEFI (2000) 3 NWLR (Pt.620) 620; AWUSE V. ODILI (2004) FWLR (pt.193) 325 at 354 and BUHARI V. OBSANJO (2003) 17 NWLR (Pt. 850) 423 at 474 – 475 cited by Mr. Aderemi Olatubora, one of the learned counsel to the appellant, in his book “ELECTORAL LAW AND PRACTICE IN NIGERIA”, page 299. Hon. Aderemi Olatubora, after referring to the case of BUHARI V. OBASANJO (supra) rightly observed in his said book as follows: ‘The issue of jurisdiction can be raised at any stage of the proceedings. It can be raised by the court suo motu provided that where it is raised suo motu; parties must be heard before the court will arrive at a decision. Objection to jurisdiction can even be raised for the first time on appeal. But once raised, the court has a duty to resolve it first”. (Underlining mine for emphasis). PER MOORE A. A. ADUMEIN, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE WORD “FROM” AS USED IN THE PROVISION OF SECTION 141 OF THE ELECTORAL ACT, 2006
In interpreting any statute, it is a cardinal point to always bear in mind, and that is to discover to intention of the law maker or legislature. In the present case, the intention of the legislature is to give a petitioner 30 days within which to present his election petition and not 29 days or less. The respondents emphasized the word “within” used in section 141 of the Act. The word within merely circumscribes the time frame for the presentation of an election petition and does not indicate whether the 30 days include the date of declaration of the result. The relevant word, in this respect, in section 141 of the Act is “from”. In the unreported case of AKINWE VICTOR ADESULE V. AKINFOLARIN MAYOWA & ORS (APPEAL NO: CA/B/EPT/80/2008) decided on the 8th day February 2011 stated as follows: In enacting section 141 of the Electoral Act, 2006 the legislature should be taken to be aware of the ordinary meaning of the word “from” and to avoid the confusion or absurdity that would be created by giving the word “from” its dictionary meaning, the legislature provided in paragraph 50 of the First Schedule to the Electoral Act, 2006 as Follows: “Subject to the express provision of this Act, the practice and procedure of the tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action. PER MOORE A. A. ADUMEIN, J.C.A.
COMPUTATION OF TIME: POSITION OF THE LAW AS REGARDS THE COMPUTATION OF TIME WHEN THE TIME PRESCRIBED BY THE STATUTE FOR DOING AN ACT, EXPIRES ON A SUNDAY OR ANY OTHER DAY ON WHICH THE COURT OFFICE IS CLOSED
Of particular importance to the facts of this case is PRITAM V. RUSSELL & SONS LTD (supra) at 249 where LORD DENNING, M.R. held, inter alia, as follows: The important thing is to lay down a rule for the future so that people can know how they stand. In laying down a rule, we can look to parallel field of law to see the rule there. The nearest parallel is the case where a time is prescribed by the Rules of Courts for doing any act. The rule prescribed in both the county court and the High Court is this: lf the time expires on a Sunday or any other day on which the court office is closed, the fact is done in time if it is done on the next day on which the court office is open. I think we should apply a similar rule when the time is prescribed by statute. By so doing, we make the law consistent in itself: and we avoid confusion to practitioners. So I am prepared to hold that when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when the time expires, then, if it turns out in any particular case that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open. PER MOORE A. A. ADUMEIN, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 136 OF THE EVIDENCE ACT AS REGARDS ON WHOM LIES THE BURDEN OF PROOF IN AN ELECTION PETITION
By section 136 of the Evidence Act “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” Therefore, in an election petition the initial burden of proof lies on a petitioner who alleges certain irregularities or makes certain claims. Although this burden, it is trite, is not static, the petitioner, such as the appellant in this case, does not need to wait for the respondents to call witnesses in order to prove his claim. As a fact, a respondent can make a no case submission based on the evidence adduced by the petitioner. PER MOORE A. A. ADUMEIN, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
OLADELE OLATUNJI Appellant(s)
AND
1. DR. WOLE OLAKUNDE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. RESIDENT ELECTORAL COMMISSIONER, ONDO STATE
4. THE RETUNRNING OFFICER, OKITIPUPA/IRELE FEDERAL CONSTITUENCY
5. THE COMMISIONER OF POLICE, ONDO STATE
6. THE NIGERIAN ARMY
7. THE NIGERIAN NAVY Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): On the 21st day of April, 2007 the independent National Electoral Commission (INEC), the 2nd respondent to this appeal, conducted election to the House of Representatives in respect of Okitipupa/lrele Federal Constituency of Ondo State. Six (6) candidates contested the said election. The appellant and the 1st respondent were among them. The appellant – OLADELE OLATUNJI contested on the platform of Labour Party (LP) while the 1st respondent – DR. WOLE OLAKUNDE contested on the platform of Peoples Democratic Party (PDP). The result of the election was declared on the 21st day of April, 2007 and the appellant was credited with 4, 438 votes while the 1st respondent was credited with 112, 358 votes and consequently declared the winner of the election having polled the highest number of the votes cast.
The appellant was not satisfied with the result of the election and on the 21st day of May, 2007 he filed an election petition anchored on the following three grounds, namely:
“(a) The 1st Respondent was not duly elected by majority of lawful votes cast at the election.
(b) The purported House of Representatives election of 21st April 2007 in Irele/Okitipupa Federal Constituency was marred by corrupt practices, mass abduction of Labour Party leaders and supporters, massive and unprecedented violence; and absolute non-compliance with the provisions of the Electoral Act because there was no election yet returns were made.
(c) The Petitioner was validly nominated but was unlawfully excluded from the election by abduction and unlawful detention of the Petitioner by men of the Nigerian Army acting as agents of the 1st Respondent.”
After exchange of pleadings (the petition and the replies) the matter was heard by the National Assembly/Governorship and Legislative Houses Election Petition Tribunal for Ondo State, sitting at Akure (Coram: IKYEGH, ELECHI, NIMPAR, ONWUAMUEGBU and MAIWADA, J.J).The said Tribunal delivered judgment on the 3rd day of May, 2008 and dismissed the petition. The appellant was not satisfied with the decision of the trial tribunal hence his appeal to this Court.
In accordance with the Rules of Court, the appellant and the 1st respondent filed and exchanged briefs of argument. The 2nd to 7th respondents did not file any briefs of argument. It must be pointed out immediately that all the respondents save the 6th & 7th filed notices of preliminary objection to the hearing of this appeal. It should be kindly noted that Dr. Olatoke, learned counsel for the 1st respondent withdrew his notice of preliminary objection dated the 3rd day of March, 2009 but filed on the 4th day of March, 2009 and the same was duly struck out.
The 1st respondent’s notice of preliminary objection dated the 24th day of November, 2009 was filed by Dr. Olatoke, learned counsel for 1st respondent, on the 7th day of December, 2009. The 2nd – 4th respondents filed a joint notice of preliminary objection on the 18th day of March, 2009. The said notice dated the 19th day of February, 2009 was signed on their behalf by the counsel – Nwokeocha, Esq. The 5th respondent’s notice of preliminary objection dated the 25th day of January, 2009 was filed on the 30th day of January, 2009. Each notice of preliminary objection, save that of the 1st respondent, was filed with or accompanied by a brief of argument. The appellant filed two briefs of argument in opposition to the preliminary objections of the 1st and 5th respondents, respectively. The appellant’s brief in opposition to the 1st respondent’s objection dated the 23rd day of March, 2009 was filed on the same date. The brief in opposition to the 5th respondent’s objection was dated and filed the 13th day of March, 2009. The 1st respondent filed a reply of points of law on 30/03/09.
The respondents argued their respective objections and the appellant replied thereto before the substantive appeal was heard.
The first preliminary objection in this matter is that of the 5th respondent. Dated the 21st day of January, 2009 it was filed on the 30th day of January, 2009. The objection of the 5th respondent is as follows:
(i) “That Petition No. ETP/OND/NA/07/07 from which the appeal arose to this Honorable Court is incurably incompetent and lacked existence in law having been filed outside the statutory period of “within thirty (30) days from the date the result of the election is declared” as provided for by section 141 of the Electoral Act, 2005.
(ii) That the judgment of the lower Tribunal delivered on the 3rd May, 2008 which is the subject-matter of the appeal before this Honourable Court is void ab intio for lack of jurisdiction”.
The relevant grounds for the objection are as follows:
(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 was on the 21st April, 2007 and the Petition was filed on the 21st May, 2007, 31 days after the said declaration and therefore statute barred.
(iii) The Lower Tribunal lacks jurisdiction to have entertained it.
(iv) The judgment of the lower Tribunal from which the present appeal arose is void and a nullity ab initio.
(v) The inherent jurisdiction of the Honorable Court of Appeal is being invited to strike out the incompetent Petition intoto and to set aside the judgment of the lower tribunal in this appeal in order to save time and cost”.
The 5th respondent consequently sought the following reliefs namely:
“1. AN ORDER striking out Petition No. ETP/OND/NA/07/07 filed on 21/5/07 for absence of legal live (sic) having been statute barred.
2. AN ORDER setting aside the judgment of the lower Tribunal on the said void Petition on the ground of absence of jurisdiction.
3. AN ORDER striking out the Appeal for want of jurisdiction.
It is necessary to state here that the objections, grounds for the objections and the prayers of the 1st respondent and 2nd to 4th respondents are substantially the same as those of the 5th respondent reproduced above. I will, therefore, take and treat all the objections together.
In his argument, Mr. Idachaba, learned counsel for the 5th respondent formulated the following issue as arising for determination in respect of his preliminary objection, namely:
“WHETHER THIS PETITION WAS PRESENTED WITHIN THE PERIOD PRESCRIBED BY SECTION 141 OF THE ELECTORAL ACT, 2006 AND WHETHER THE JUDGMENT APPEALS AGAINST IS VALID IN LAW?”
On his party, C. I. Nwokeocha, Esq learned counsel for the 2nd – 4th respondents formulated the following issue as calling for determination in respect of his preliminary objection, that is:
“WHETHER THE PETITION WHICH WAS FILED ON THE 21ST OF MAY, 2007 WAS WITHIN TIME, AS PRESCRIBED BY SECTION 141 OF THE ELECTORAL ACT, 2006 TO ENTITLE THE LOWER TRIBUNAL TO EXERCISE JURISDICTION OVER IT, HAVING REGARD TO THE FACT THAT THE RESULT OF THE ELECTION IN QUESTION WAS DECLARED ON THE 21ST APRIL 2007.”
Dr. Olatoke formulated the following 2 issues in his brief of argument in respect of his preliminary objection. The two issues are:
1. ‘WHETHER THIS APPEAL IS COMPETENT BY REASON OF THE FACT THAT THE PETITION UPON WHICH THE APPEAL IS PREMISES (SIC) WAS NOT INITIATED BY DUE PROCESS OF LAW HAVING BEING (SIC) FILED OUTSIDE THE STATUTORY PERIOD?
2. WHETHER GROUNDS 13 AND 14 OF THE APPELIANTS GROUNDS OF APPEAL ARE COMPETENT AND WHETHER THIS HONORABLE COURT CAN ENTERTAIN SAME”.
In my view, the issue formulated by learned counsel for 2nd-4th respondents adequately covers the real issue arising from all the objections hereinbefore mentioned. I adopt same as the issue calling for determination in the respondents’ preliminary objections.
The argument of Mr. Nwokeocha is that the issue raised in their preliminary objection relates to or borders on jurisdiction and it could be raised anyhow and at anytime, even for the first time on appeal. The respondents referred the Court to the cases of AWUSE V. ODILI (2004) FWIR (Pt. 193) 325 at 354 and OBIAKOR V. STATE (2002) FWLR (Pt.113) 299 at 301.
Messrs Idachaba and Nwokeocha referred to section 141 of the Electoral Act, 2006 and argued that the provisions of that section are clear and unambiguous and that word “shall” used in the said section implies a command or an obligation. Reference on this point was made to the case of KALAMU V. GUNRIN (2003) 16 NWLR (Pt.847) 493 at 517.
The 5th respondent then referred to the meaning of the word “within” in OXFORD ADVANCED LEARNER’S DICTIONARY (NEW 7TH EDITION) page 1591 and argued that “the Petition shall be presented “within 30 days” and not 30 days from the date when the result was declared”.
The respondents argued that the election petition filed on the 21st day of May, 2007 in respect of an election the result of which was declared on the 21st day of April, 2007 was statute barred and that the lower tribunal lacked jurisdiction to entertain it. On this point, they referred to the cases of AC V. JANG (unreported) Appeal No: CA/J/EP/GOV/275/2007 decided on the 26th day of February, 2008 (now reported (2009) 4 NWLR (pt.1132) 475); OGBEBOR V. DANJUMA (2003) 1 NWLR (pt.843) 403 ALATAHA V. ASIN (1999) 5 NWLR (Pt. 600). 1 at 44 and MOHOMMED UMARU KAUMILA V. SENATOR ALI MODU SHERIFF & ORS (2008) All FWLR (Pt.431) 103. During the argument of the preliminary objection, Dr. Olatoke also referred to the case of AC V. INEC (2009) 4 NWLR (Pt.1132) 475 at 508 – 509 in support of this contention.
The respondents contended that appellant’s election petition was incompetent as it was filed out of time and the appeal thereon void.
Learned counsel for appellant – John O. Baiyeshea (SAN) with Dr. Olumide Ayeni, chief Yinka Adeyosoye, Dayo Akinlaja Esq; Hon. Aderemi Olatubora, Chief Tunde Atere, Olufemi Fadare Esq; Opeyemi Fadoju Esq; Miss Toyin Aladegbami and Yesiru Oladele Esq; filed two briefs in opposition to the preliminary objections. One of the briefs is titled ‘APPELLANT’S BRIEF OF ARGUMENT IN REPLY TO THE 1ST RESPONDENT’S PRELIMINARY OBJECTION.” This brief is apparently in reaction to the 1st respondent’s notice of preliminary objection dated the 3rd day of March, 2009 but filed on the 4th day of March, 2009 which was withdrawn and, accordingly, struck out. The 1st respondent’s notice of preliminary objection dated 24th November, 2009 but filed on 7th December, 2009 and which was relied on by the 1st respondent had no brief of argument attached to or linked to it. The appellant’ brief in reply to the 1st respondent’s preliminary objection is hereby accordingly struck out. Consequently the 1st respondent’s written reply on points of law dated the 30th day of March, 2009 without any filing date is hereby struck out. The appellant’s brief in opposition to the 5th respondent’s preliminary objection was dated and filed on the 13th day of March, 2009. I regard that brief as the appellant’s response to the respondents’ preliminary objections. In the said brief, the appellant formulated the following issue for determination, namely:
“Whether the 5th Respondent’s Preliminary Objection is competent and/or meritorious in the light of the facts and circumstances hereto in this Appeal.”
The appellant argued that the preliminary objection “attacks the Judgment of the lower Tribunal” and since the 5th respondent did not file any notice of appeal upon which the preliminary objection could be predicted, the notice of preliminary objection “is incompetent”. Learned counsel for the appellant referred the Court to Order 5 rule 2 of the Court of Appeal Rules, 2007 and the case of KOLAWALE V. ALBERTO (1989) 2 SC (Pt.111) 1 where it was held that an argument on any ground of appeal which did not form part of the notice of appeal would not be entertained or countenanced.
The appellant contended further that the question of “whether or not an Election Petition is void or amounts to a nullity” was not timeously raised. The learned counsel for the appellant referred to paragraph 49 (2) of the First Schedule to the Electoral Act, 2006 (as amended) and argued that the respondent had taken steps “after becoming aware of the defect alleged in the Petition and deemed to have waived his right to object thereto.” On this argument, learned counsel referred to and relied on the cases of UGWU V. MBA (1999) 3 NWIR (Pt. 595) 400 at 407 and AGAGU V. MIMIKO & ORS. (Unreported) APPEAL No: CA/B/EPT/342/2008 delivered on the 23rd day of February, 2009.
It was further submitted that the preliminary objection “is akin to deploying technicalities to an irregular advantage” to trump the judgment of the trial tribunal. The appellant argued that in election petitions, courts should not fetter their jurisdiction by technicalities – NWOBODO V. ONOH (19g4) 1 SCNLR 1 at 92 and EGOLUM V. OBASANJO (1999) 7 NWLR (pt.611)
I wish to clear the preliminary issues raised by the appellant before proceeding to the substantive argument in respect of the preliminary objection of the respondents.
Paragraph 49 (2) of the First Schedule to the Electoral Act, 2009 provides thus:
“An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect”
Paragraph 49 (2) of the First Schedule to the Electoral Act, 2005 should not be read in isolation of sub-paragraph (1) thereof which provides thus:
“Non-compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deem fit and just”.
It seems clear to me that paragraph 49 of the First Schedule to the Electoral Act, 2006 deals with non-compliance with the provisions of the First Schedule to the Act and adjectival Rules of Practice applicable to Election Petition Tribunals and how election petitions can be set aside for non-compliance, etc. See CHIASON & OR V IGBA & ORS (2006) 2 ERR 904.
In my humble opinion, paragraph 49 (2) of the First Schedule to the Electoral Act, 2006 does not apply to the provisions and requirements of the substantive Electoral Act, including section 141 thereof. Therefore, the appellant’s argument and the cases cited and relied on in this respect are inapplicable to the respondents’ notices of preliminary objection. Similarly, the cases of NWOBODO v. ONOH (supra) and EGOLUM v. OBASANJO (supra) are not applicable.
The respondents’ preliminary objection goes to the jurisdictional foundation of the appellant’s election petition. It is a threshold issue challenging the jurisdiction of the lower tribunal, in the first place, to have entertained the election petition which the respondents resent as having been filed out of time. The law is now settled that the issue of jurisdiction, being radically and fundamentally important to adjudication, can be raised anyhow, at any stage of the proceedings, even for the first time on appeal and it can be raised by any of the parties to the proceedings or by the court suo motu. See ENUGWU V. OKEFI (2000) 3 NWLR (Pt.620) 620; AWUSE V. ODILI (2004) FWLR (pt.193) 325 at 354 and BUHARI V. OBSANJO (2003) 17 NWLR (Pt. 850) 423 at 474 – 475 cited by Mr. Aderemi Olatubora, one of the learned counsel to the appellant, in his book “ELECTORAL LAW AND PRACTICE IN NIGERIA”, page 299. Hon. Aderemi Olatubora, after referring to the case of BUHARI V. OBASANJO (supra) rightly observed in his said book as follows:
‘The issue of jurisdiction can be raised at any stage of the proceedings. It can be raised by the court suo motu provided that where it is raised suo motu; parties must be heard before the court will arrive at a decision. Objection to jurisdiction can even be raised for the first time on appeal. But once raised, the court has a duty to resolve it first”. (Underlining mine for emphasis).
I am quite surprised, therefore, that Barrister Olatubora would be in a team of learned lawyers urging this court that the issue of jurisdiction can not be raised now.
In BUHARI v. OBASANJO (supra), ABDUIAHI, PCA, stated, inter alia, as follows:
“With this position of the law on the issue of jurisdiction, the need to decide now whether or not the respondents had taken fresh steps in the proceedings after becoming aware of the defects in the petition is not necessary as the respondents’ right to raise the issue of jurisdiction as contained in their preliminary objection now being objected to cannot be defeated by those provisions of paragraph 49 (2) (3) And (5) of the 1st Schedule to the Electoral Act, 2002”
It should be kindly noted that paragraph 49 of the 1st Schedule to Electoral Act, 2002 is in pari materia with paragraph 49 of the 1st Schedule to the Electoral Act, 2006.
The case of KOLAWOLE V. ALEBERTO (supra) relied upon by the appellant is inapplicable as a party need not file a notice of appeal before he can raise an objection to the jurisdiction of the court.
The questions raised by the appellant, who could be described as objection to the respondents’ preliminary objections, are hereby resolved in favour of the respondents against the appellant.
In their substantive answer to the respondents’ preliminary objection learned lawyers representing the appellant referred to the cases of IYIRHIARO V. USOH (1999) 4 NWLR (Pt. 597) 41 and PEOPLES DEMOCRATIC PARTY V. HARUNA (2004) 16 NWLR (Pt. 900) 597 – Court of Appeal decisions and the Supreme Court cases of AKEREDOLU & ORS. V. AKINREMI (1985) 2 NSCC L283 and YUSUF V. OBASANJO & ORS. (2003) 16 NWLR (Pt.847) 554 in respect of rules relating to computation of time. The appellant summarized and analyzed the decision in the said cases and argued that the decision of this Court in AC V. JANG (supra) was reached per incuram in view of the Supreme Court decisions, “and the position of the Common Law in England from where our law is derived”.
The learned counsel for the appellant argued that since section 141 of the Electoral Act, 2006 is silent on “whether the date of the declaration itself should be included or excluded in the computation of the 30 day period” and “is also silent on the consequence of the event of the 30th (thirtieth) day on which a petition must be presented falling on a holiday” resort should be had to the interpretation Act and the Rules of the Federal High Court, 2000 which according to them, derive their origins from the common law in England. The appellant contended that under the common law “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”. The learned counsel for the appellant referred to and relied on the English cases of. In re North Exparte Hasluck (1895) 2 QB 265 at 269-270 and PRITAM KAUR V. RUSSEL & SONS LTD (1973) QBD 336 at 348.
The appellant argued that in the present case, assuming without conceding that the date of declaration of the result of the election was to be reckoned with or included in the computation of the 30 days for the filing of the appellant’s petition, the last or thirtieth day – 20th May, 2007 was a Sunday and therefore the petition was validly filed within time. Further reference was made to the case of PRITAM V. RUSSEL & SONS LTD (supra) at 249.
The appellant finally urged the court to dismiss the respondents’ preliminary objections.
I must commend the team of legal practitioners who prepared the brief in opposition to the preliminary objections of the respondents. The said counsel demonstrated uncommon passion for their profession and professional responsibilities to their client-the appellant. Their brief is not only well researched but is vey illuminating and helpful on the issue of computation of time in respect of performing a legal responsibility cloaked with limitation of time.
The live issue for determination in these preliminary objections is the one ably formulated by Mr. Nwokeocha, learned counsel for the 2nd – 4th respondents.
The issue with slight modification is as follows:
“Whether the election petition filed on the 21st day of May, 2007 was within time as prescribed by section 141 of the Electoral Act, 2009 when the result of the election was declared on the 21st day of April, 2007”.
Section 141 of the Electoral Act, 2006 provides thus:
“An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared”.
The learned counsel for the respondents placed emphasis on the words “within,” “thirty (30) days” and “from” used in section 141 of the Electoral Act, 2006 and described these words as the operative words. I agree with the respondents. However, I find myself unable to subscribed to the views of the respondents that if these words and the entire section 141 of the Electoral Act, 2009 are given their ordinary grammatical meanings, since the words are plain and unambiguous, the intention of the legislature is clear – that is the computation of time in respect of the 30 days to file an election petition includes the date the result of the election is declared. In this case, according to them, since the result of the election was declared on the 21st day of April, 2007 the 30 days within which the appellant had to file his petition included the 21st day of April, 2007 and that the thirtieth day expired on the 20th day of May, 2007.
The respondents contented that the court could not have any resort to any external aid in interpreting statutory provisions which are simple, plain and unambiguous. With due respect, this is trivializing the issue. In the present case, all the parties agreed that the result of the election was declared on the 21st day of April, 2007 and that the election petition was filed on the 21st day of May, 2007. The appellant argued, and this was not challenged that the 20th day of May, 2007 was a Sunday. Assuming, for the sake of mere argument, that three or four consecutive days immediately preceding the 20th day of May, 2007 were one way or the other declared public holidays by the Federal Government of Nigeria, will it not be absurd to argue that under the circumstances the petition was filed without or outside the 30 days prescribed by section 141 of the Electoral Act, 2006? The answer is obvious – absolute absurdity.
In interpreting any statute, it is a cardinal point to always bear in mind, and that is to discover to intention of the law maker or legislature. In the present case, the intention of the legislature is to give a petitioner 30 days within which to present his election petition and not 29 days or less.
The respondents emphasized the word “within” used in section 141 of the Act. The word within merely circumscribes the time frame for the presentation of an election petition and does not indicate whether the 30 days include the date of declaration of the result. The relevant word, in this respect, in section 141 of the Act is “from”. In the unreported case of AKINWE VICTOR ADESULE V. AKINFOLARIN MAYOWA & ORS (APPEAL NO: CA/B/EPT/80/2008) decided on the 8th day February 2011 stated as follows:
In enacting section 141 of the Electoral Act, 2006 the legislature should be taken to be aware of the ordinary meaning of the word “from” and to avoid the confusion or absurdity that would be created by giving the word “from” its dictionary meaning, the legislature provided in paragraph 50 of the First Schedule to the Electoral Act, 2006 as Follows:
“Subject to the express provision of this Act, the practice and procedure of the tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.”
And Order 23 rule 1 sub-rules (a) and (d) of the Federal High Court (Civil Procedure) Rules provide thus:
1. Where by any enactment or any order or rule of court, any special order, or the course of the court, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding, and such time is not limited by hours, the following rules shall apply –
(a)The limited time does not include the day of the date of or happening of the event, but commences at the beginning of the day next following that day.
(d) When the time expires on a public holiday, Saturday or Sunday, the Act or proceeding shall be considered as done or taken in due time if it done or taken on the next day afterwards, not being a public holiday…”
These provisions accord with the statutory provisions in section 15 sub-sections (2) (a) and (3) of the Interpretation Act which are as follows:
15. (2) a reference in an enactment to a period of days shall be Construed –
(a) Where the period is reckoned from a particular event, as excluding the day on which the event occurs;
(3) Whereby an enactment any act is authorized or required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.” (Underlining mine for emphasis).
The declaration of the legislature in section 15 (2) (a) of the Interpretation Act is very clear and unambiguous. It is quite clear, therefore, that the legislature has given legislative interpretation to the word “from” when used in statute in the computation of time and the controversy here is absolutely unnecessary”.
I stand by my view that the Interpretation Act, applies to the Electoral Act, 2006 in the absence of any clear contrary intention either in the Interpretation Act or the Electoral Act, 2006. See section 1 of the Interpretation Act. My view is fortified by the decision of the Supreme Court in the case of YUSUF V. OBASANJO (2003) 15 NWLR (Pt.847) 554 at 608 – 508 where it was held, per TOBI, JSC, as follows:
‘The result of the election was declared on 22nd April, 2003. The election petition was filed on 2nd May, 2003 and the motion for amendment of petition was filed on 21st May, 2003. (See pages 1 to 5 of the record). Reducing that to arithmetical details, since the result of the election was declared on 22nd April, and the motion for amendment was filed on 21st May, 2003, the motion for amendment was presented within thirty days from the date of the election. This interpretation is in conformity with the provision of Order XII rule 1 of the Federal High Court (Civil Procedure) Rules”.
In his contribution, UWAIFO, JSC, put the matter beyond the realm of argument by any lower court on this issue of computation of time at page 629 of
“Section 132 provides that ‘An election petition may be presented within 30 days from the date the result of election is declared.’ It is not in dispute that the presidential election result in question was declared on 22nd April, 2003. The petitioners in this case have 30 days to appeal against it. The 30 days will be calculated from 23rd of April to end on 22nd May 2003.” (Underlining mine for emphasis).
It should be noted that in YUSUFU V. OBASANJO (supra), the Supreme Court interpreted the provisions of section 132 of the Electoral Act, 2002 and paragraph 50 of the 1st Schedule thereto which are in pari materia with section 141 of the Electoral Act, 2006 and paragraph 50 of the 1st Schedule to it, respectively. And Order XII rule I of the Federal High Court (Civil Procedure) Rules, 1976 interpreted therein is identical with Order 23 rule 1 of the Federal High Court (Civil Procedure) Rules, 2000. The decision in YUSUFU V. OBASANJO is binding on me. I am not persuaded by any school of thought to the contrary. In the present case, since the result of the election was declared on the 21st day of April, 2007 the 30 days allowed the appellant to file his election petition would begin to run on the 22nd day of April, 2007. If 21st May, 2007 happened to be a Sunday or a public holiday, the petition could be properly and validly filed the day immediately following not being a public holiday.
I would have stopped here in respect of this matter. However, my appetite was fully aroused by Mr. Baiyeshea (SAN) and his team of lawyers when they referred this Court to some English authorities, although not strictly applicable here they are nevertheless very useful and beneficial as they are from a pool of ancient learning and wisdom. Of particular importance to the facts of this case is PRITAM V. RUSSELL & SONS LTD (supra) at 249 where LORD DENNING, M.R. held, inter alia, as follows:
The important thing is to lay down a rule for the future so that people can know how they stand. In laying down a rule, we can look to parallel field of law to see the rule there. The nearest parallel is the case where a time is prescribed by the Rules of Courts for doing any act. The rule prescribed in both the county court and the High Court is this: lf the time expires on a Sunday or any other day on which the court office is closed, the fact is done in time if it is done on the next day on which the court office is open. I think we should apply a similar rule when the time is prescribed by statute. By so doing, we make the law consistent in itself: and we avoid confusion to practitioners. So I am prepared to hold that when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when the time expires, then, if it turns out in any particular case that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open”.
The respondents’ preliminary objections are hereby overruled and dismissed, accordingly.
THE MAIN APPEAL
At the hearing of the appeal, Dr. Ayeni, learned counsel who appeared for the appellant drew the attention of the Court to a notice of withdrawal of the cross appeal filed on the 7th day of December, 2009 and the said cross appeal was struck out as withdrawn.
Dr. Ayeni adopted the appellant’s brief dated the 15th day of April, 2009 but filed on the 17th day of April, 2009 and deemed properly filed on the 26th day of October, 2009. The learned lawyer relied on the said brief and urged the Court to allow the appeal, set aside the judgment of the tribunal and order a fresh election.
On behalf of the 1st respondent, Dr. Olatoke adopted the respondent’s brief dated the 24th day of November, 2009 and filed on the 7th day of December, 2009 but deemed properly filed on the 8th day of February, 2010. He relied on it and urged the Court to dismiss the appeal.
In his brief of argument, the appellant distilled the following two issues for determination, namely:
1. “Whether from the totality of the evidence adduced at the hearing of the Petition – oral and documentary – the Appellant (as Petitioner) proved his case as required by law as to entitle him to have the purported election of the 1st Respondent nullified. (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 12 of the Appellant’s Notice of Appeal).
2. Whether the Ruling of the tower tribunal of 8th April, 2008 refusing to grant the Application for the reopening of the hearing of the Petition occasioned a miscarriage of justice. (Grounds 13 and 14 appellant’s Notice of appeal).”
On his part, the 1st respondent formulated the following lone issue for determination, namely:
“Whether from the totality of the evidence adduced at the hearing of the petition the appellant has proved his case to entitle him to the reliefs sought before the Tribunal?”
The appellant’s number 2 will be taken first. The appellant’s argument on issue No. 2 formulated by him spans pages 51 to 70 of his brief. In a nutshell the argument of the appellant is that his application to reopen his case was wrongly refused by the trial tribunal on the 8th day of April, 2008. The facts of this case, as they relate to the application to reopen the appellant’s case, are that after the appellant had closed his case, the 1st respondent opened and subsequently closed his case. According to the appellant, in paragraph 3.41 (iv) at page 63 of his brief of argument, “On the same 23rd February 2008, when the 1st Respondent closed his case, counsel to the 2nd – 4th Respondents, Olorunfemi, abruptly informed the lower Tribunal, that the 2nd – 4th Respondents will not be calling evidence. The 5th Respondent’s counsel also stated clearly that he will not be calling witness”. The appellant then stated in his brief of argument (paragraph 3.41 (v) at page 63) thus:
“The failure of the 2nd – 4th Respondents who are INEC, Resident Electoral commissioner and the Returning Officer for the Constituency to call evidence apparently deprived the Appellant the much looked forward to opportunity of confronting the 2nd – 4th Respondents with Exhibits Q1-Q10, T1-T13, R, F and U, which have listed in them, scores attributed to political parties that did not contest the election”.
There is no response by the respondents especially the 1st respondent, on this issue. The respondents are deemed in law to have no answer to this issue raised by the appellant. See AKANBI V. ALATEDE (2000) FWIR (Pt.11) 1928. However, this does not mean that this issue must be automatically resolved in favour of the appellant as the court has a duty to determine the issue on its merit – AGBABIAKA V. OKOJIE (2004) 15 NWLR (pt.897) 503.
I do not intend to go into any academic discussion of this issue. By section 136 of the Evidence Act “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” Therefore, in an election petition the initial burden of proof lies on a petitioner who alleges certain irregularities or makes certain claims. Although this burden, it is trite, is not static, the petitioner, such as the appellant in this case, does not need to wait for the respondents to call witnesses in order to prove his claim. As a fact, a respondent can make a no case submission based on the evidence adduced by the petitioner. Accordingly, that the 1st respondent suddenly closed his case and the other respondents did not call any witnesses would not and did not qualify as a justifiable ground to enable the appellant to reopen his case.
In my view, the application by the appellant to reopen his case after the 1st respondent had closed his case was rightly refused by the trial tribunal. This issue is hereby resolved against the appellant.
Issue No.1 distilled by the appellant and the lone issue formulated by the 1st respondent are substantially the same and they will be considered together.
The complaints, of the appellant, principally, are that the 1st respondent was not validly elected because he was not returned with a majority of the lawful votes, that the election was not in compliance with the provisions of the Electoral Act yet returns were made and that the petitioner, although validly nominated, was unlawfully excluded as he was abducted and detained “by men of the Nigerian Army acting as agents of the 1st Respondent.” (Paragraph 10 of the appellant’s petition at page 4 of Vol. 1 of the record of appeal). The appellant’s
“(a) That it may be determined and thus determined that PURPORTED RETURN of the 1st Respondent as elected member for Okitipupa/Irele Federal Constituency held on the 21st April, 2007 is VOID and the PURPORTED ELECTION AND / OR RETURN be NULLIFIED.
(b) That it may be determined and thus determined that the entire purported House of Representatives election held on the 21st April, 2007 in the Irele/Okitipupa Federal Constituency be voided or nullified and a fresh election be conducted for the Constituency.
(c) An ORDER directing the 2nd Respondent to immediately conduct a fresh election in the said Irele/Okitipupa Federal Constituency.
As can be gleaned from the relief sought by the appellant, the principal request of the appellant is that a fresh election be conducted as a result of the alleged irregularities and non-compliance complained of in his petition.
I have read the judgment of the trial tribunal. I have also read the very illuminating arguments of the learned counsel for the appellant and the 1st respondent in their respective briefs of argument. In addition, I have read the legal authorities cited by the learned lawyers in their respective briefs of argument. To be concise and precise from the facts of this case, as clearly set out and ably analyzed by the trial tribunal, I do not find any good reason to disturb or invalidate the findings and conclusion of the tribunal, under the chairmanship of HON. JUSTICE JOSEPH SHAGBOR IKYEGH that there are no “compelling grounds to invalidate the election of the 1st Respondent and find this petition not proven in respect of the indispensable second leg of section 146 (1) of the Electoral Act to wit : … that the non-compliance did not affect substantially the result of the election. “(Page 915, Vol. 1 of the record of appeal).
Since time has become of great essence in this matter, it will serve no useful purpose to go into great details before arriving at the conclusion that this appeal lacks merit and it should be dismissed. The appeal, accordingly, is hereby dismissed.
I make no order as to costs.
NWALI SYLVESTER NGWUTA, J.C.A.: DISSENTING OPINION ON THE INTERPRETATION OF S. 141 OF THE ELECTORAL ACT, 2006.: Having previously read the judgment of my learned brother Adumein, JCA, I regret my inability to subscribe to my Lord’s profound reasoning and conclusion on the interpretation of S. 141 of the Electoral Act, 2006. The said section of the Act provides:
“An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”
The result of the election was declared on the 21st day of April, 2007 and the appellant, not being satisfied with the result, filed his petition against same on the 21st day of May, 2007 the gravamen of the preliminary objection to the hearing of the petition is that it was filed after the thirty (30) day period stipulated in S. 141 of the Electoral Act 2006.
The issue for determination herein is whether the 30 day period within which the petitioner must present his petition starts to run on the date of declaration of the result of the election as argued in the preliminary objections or on the date after the declaration of the results as argued by the appellant.
In resolving the above issue it cannot be over-emphasized that election petition belongs to an exclusive class of its own and that time is of the essence. It therefore follows that an expansive interpretation of S. 141 of the Electoral Act 2006 as it relates to the time specified therein for the presentation of an election petition is not only in- appropriate but will defeat the purpose of the Act itself, or the intention of the legislature.
In Abacha v. FRN (2006) 14 NWLR (pt 907) 239 pt 263 the court held that the object of all Interpretations is to discover the Intention of the Law maker, which is deducible from the language used in the statute and in performing this duty of interpretation, the courts are enjoined to give adequate consideration to the words used in the statute. This authority in my humble view, applies with more force in an election petition in which time is of the essence. In Nigeria – Arab Bank Ltd v. Comex Ltd (1999) 6 NWLR (pt 608) 648 the court held that a certain amount of common sense must be applied in constructing a statute and that the object of the Act the provision of which is being constructed has to be considered. Common sense when applied to the provision of S.141 of the 2006 Act shows conclusively, in my humble view that the expression “within thirty (30) days from the date the result of the election is declared” includes the 1st and last of the two dates that is the date of the declaration of the result and the date of presentation of the petition. And since time is of the essence in election petitions the intention of the legislature in drafting S. 141 of the Act is to restrict and not to expand, time for the filing of an election petition.
I have considered the case Law relied on by both sides of the divide. With profound respect it is my humble view that authorities that sanctioned the expansive interpretation of provisions relating to time within which election petition shall be filed, failed to take into consideration the decision of the Supreme Court in Fadare v. Attorney – General of Oyo State (1982) 4 SCI, also in (1982) NSCC 52. In the said case the Apex Court held that time begins to run when there is in existence a person who can sue and another who can be sued, and all that all have happened which are material to be proved to entitled the plaintiff to succeed. This requirement was satisfied in 21/4/2007 when the result was declared. See Alataha v. Asin (1999) 5 NWLR (pt 601) 32 wherein Salami, JCA, (as he then was) applied the said Supreme Court authority in computation of time in election petition. In the above decision the Supreme Court dealt with a purely civil matter in which time is generally not of the essence. That authority, which has not been set aside and by which this Court is bound, applies with more force in election petition in which time is always of the essence.
The common words “within” and “from” as used in section 141 of the Electoral Act 2006, have no esoteric meaning and are used in their natural and grammatical connotation, I appreciate the industry and erudition of learned counsel in this appeal but I see no justification in roaming in foreign jurisdiction to research the etymology of any of the simple words in S. 141 of the Electoral Act 2006 for the purpose of determining its meaning.
The court should apply the Law as it is without undue speculation of a perceived unwholesome effect of its application and try to remedy it by its judgment. It is the duty of the legislature to amend the Law. Judicial creativity by the court does not include amendment of statutes on the pre of judgment. See section 134 (1) of the Electoral Act 2010 which provides: S. 134 (1) “an election petition shall be filed within 21 days after the date of the declaration of the result of the election”
The insertion of the words “after the date ….” In S.134 of the 2010 Act in contrast to the words “from the date …” in Section 141 of the electoral Act 2006 shows beyond argument that the legislature has excluded the date of declaration of the result of the election in the computation of time within which to file an election petition under the Electoral Act 2010. The words “from the date” in S. 141 of Electoral Act 2006 cannot be the same as “after the date” in S.134 (1) of the Electoral Act 2006. It is not for the court to resort to internal and for external aid in the interpretation of words used in their ordinary and grammatical meaning to determine a perceived intention of the legislature.
Based on the above the preliminary objection to the hearing of the petition is well-taken. The petition filed on 21/5/2007 against the election result declared on 21/4/2007 was filed outside the 30 day’s period provided for in S.141 of the Electoral Act 2006. The petition is time-barred. It is incompetent and the tribunal had no jurisdiction to entertain it. The petition is hereby struck out and the proceeding based on it is hereby declared a nullity. The appeal is incompetent and is struck out.
In the alternative I will consider the merit of the case. The live issues in this appeal were exhaustively dealt with in the lead judgment, and I adopt His Lordship reasoning and conclusion therein: I therefore also dismiss the appeal.
I make no order as to costs.
CHINWE E. IYIZOBA, J.C.A.: I have read before now the judgment just delivered by my learned brother, Adumien J.C.A. I agree with the reasoning and conclusions reached in the judgment.
This appeal once again raised the issue of the proper interpretation to be accorded section 141 of the Electoral Act, 2006 as regards time within which an election petition must be filed. The issue was exhaustively dealt with in our judgment in the case Akinwe Victor Adesule v. Akinfolarin Mayowa & Ors CA/B/ETP/80/2008 the 8th day of February, 2011. I subscribe to the view that it is right to fall back on the provisions of the interpretation Act and the Federal High court (civil Procedure) Rules. My learned brothers who disagree still hold on tenaciously to the view that section 141 must be given its ordinary literal meaning – that within 30 days from the date of the declaration of the result means exactly what it says; 30 days counting from that date, period! The opinion has often been expressed that it is necessary to lay down a rule on the issue so as to put to an end the discordant views on the matter.
Happily, section 285 (5) of the Amended Constitution of the Federal Republic of Nigeria, 2011 amended the law to now require that an election petition shall be filed within 21 days after the date of declaration of result of the election. The use of the word “after” instead of “from” as under the old law appears to have put to rest the vexed issue of whether calculation of the period should begin from the date of declaration of the result or after that date.
On the issue of public holidays, I do not think there is any basis for the contention that the Interpretation Act and other similar laws are inapplicable.
On the substantive appeal, I agree with my learned brother, Adumein JCA that the appeal lacks merit and should be dismissed. It is hereby dismissed. I abide by the order as to costs.
Appearances
1. JOHN O. BAIYESHEA, ESQ., SAN
2. DR. OLUMIDE AYENI, ESQ.
3. CHIEF YINKA ADEYOSOYE, ESQ.
4. DAYO AKINLAJA, ESQ.
5. HON. ADEREMI OLATUBORA, ESQ.
6. CHIEF TUNDE ATERE ESQ.
7. OLUFEMI FADARE, ESQ.
8. OPEYEMI FADOJU ESQ.
9. MISS TOYIN ALADEGBAMI, ESQ.
10. MISS KEMI AKE, ESQ.
11. YESIRU OLADELE, ESQFor Appellant
AND
1. DR. J.O. OLATOKE, ESQ. for the 1st Respondent
2. C. I. NWOKEOCHA, ESQ. for the 2nd-4th Respondents
3. J. C. A. IDACHABA, ESQ. forthe 5th RespondentFor Respondent
