YUSUF SULE V. BADAMASI KABIR & ORS. (2010)

YUSUF SULE V. BADAMASI KABIR & ORS.

(2010)LCN/3561(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 2nd day of February, 2010

CA/K/EP/NA/26/2008

RATIO

JURISDICTION: IMPORTANCE OF JUIRSDICTION

This is based on another principle of law that the jurisdiction of a court is of such a fundamental and crucial nature in judicial proceedings that it is regarded as a threshold issue the absence of which would render such proceedings a nullity ab initio no matter how well they were otherwise conducted. This is one the very elementary principles of law that I am tempted to say it is now common knowledge in judicial practice in all our courts of superior record in particular. It would be a mere formality to cite or set out judicial authorities which support it and I am ready to abide by that formality. See ONYEMA V. OPUTA (1987) 6 SCNJ 176, TIZA V BEGHA (2005) 5 SC (PT.II) 1, COTECNA INTERNATIONAL LTD V. IVORY MERCHANT BANK LTD (2006) ALL FWLR (PT.315) 26. PER MOHAMMED LAWAL GARBA, J.C.A

STARE DECISIS: BINDINGNESS OF THE DECISIONS OF THE SUPREME COURT ON THE COURT OF APEAL

I would however readily, agree with him that by virtue of section 287(1) of the 1999 Constitution and the doctrine of stare decisis, this Court is bound to apply the decision of the Supreme Court on any issue that comes before it for decision. It should however be remember that judicial decisions are only binding authorities for and on the issues decided therein and cannot properly be said to be binding on issues which were not directly decided by them. OGBORU V. IBORI (2005) 13 NWLR (PT.942) 319, C.A.S. V. IYEN (2005) 6 NWLR (PT.922) 496, EKWENUGO V. F.R.N. (2001) 6 NWLR (PT.708) 171. PER MOHAMMED LAWAL GARBA, J.C.A

JUDICIAL PRECEDENCE SITUATIONS WHERE THE COURT OF APPEAL MAY DEPART FROM ITS PREVIOUS DECISIONS

The learned counsel for the Appellant is also right and so, I agree with him that in appropriate cases this Court can and has the power as the Court whose decisions are final in the election petitions appeals named earlier, to depart from an earlier decision. The situations in which the court can depart from its previous decision were set in the KUMALIA VS. SHERIFF case as follows:-

“(a) Where two decisions of the Court of Appeal are in conflict the court must choose between them;

(b) Where the Court of Appeal comes to the conclusion that a previous decision although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court;

(c) Where the Court of Appeal comes to the conclusion that a previous decision was given per incuriam i.e in, ignorance of a statute or other binding authority, the court is not bound by it; and

(d) Where the previous decision was decided without jurisdiction.” PER MOHAMMED LAWAL GARBA, J.C.A

APPEAL: DUTY OF A PARTY RAISING FRESH ISSUES ON APPEAL TO OBTAIN LEAVE OF THE APPEAL COURT

It had been decided and recognized in a plethora of cases that a fresh issue not taken at the trial Court can be entertained by the appellate court on the condition that; firstly, the leave of the Appeal Court must first be sought and obtained; secondly, the issue must relate to substantial point of law both substantive and procedural; and thirdly, where the issue relates to jurisdiction arising from plea of statute of limitation or breach of fair hearing. However, in all the above-stated situations there must be sufficient evidence on the record before the appellate court or there must exist on the record all the relevant facts which would require no explanation nor necessitate any evidence being called had the issue been raised at the court below. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

THERESA N. ORJI – ABADUA Justice of The Court of Appeal of Nigeria

Between

YUSUF SULE Appellant(s)

AND

1. BADAMASI KABIR
2. INDEPENDENT NATIONAL
ELECTORAL COMMISSION
3. RESIDENT ELECTORAL
COMMISSIONER, KATSINA STATE
4. ELECTORAL OFFICER, KATSINA
LOCAL GOVERNMENT
5. RETURNING OFFICER, KATSINA
CENTRAL FEDERAL CONSTITUENCY Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment): This appeal is from the decision of National Assembly/Governorship Election Tribunal, Katsina State delivered on 9/11/07 in election petition No. NA/HR/EPT/KTS/32/07. The Appellant had presented the said petition as a candidate sponsored by the All Nigeria Peoples’ Party (ANPP) at the election for a seat in the House of Representatives Federal Republic of Nigeria conducted by the 2nd – 5th Respondents in the Katsina Central Constituency on the 21/4/07. After the election, the 1st Respondent who was a candidate sponsored by the Peoples’ Democratic Party (PDP) was declared and returned as the winner and the Appellant being aggrieved by the return filed the petition on the sole ground that the 1st Respondent was at the time of the election, not qualified to contest the election.
The Respondents filed their respective Replies to the petition and after the pre-trial formalities, it proceeded to trial at the end of which the Tribunal dismissed the petition in the aforementioned decision.
The Notice of Appeal filed on 27/11/07 for the Appellant contained seven (7) grounds on which the appeal is premised.
For the 1st Respondent, who was also dissatisfied with some of the findings in the decision of the Tribunal, a Notice of Cross Appeal was filed on the 29/11/07 containing two (2) grounds.
With the leave of the court, the Appellants’ brief filed on 17/2/09 was deemed filed on the 21/4/09, the 1st Respondent’s brief filed on the 5/10/09 was deemed filed on the 6/10/09 and the 2nd – 5th Respondents’ brief filed on the 20/5/09 was deemed filed on the 6/10/09. The 1st Respondent had also filed a Notice of Preliminary Objection on the 5/10/09 to which the Appellant filed an Appellants’ Reply brief on the 9/10/09 as well as a Reply to the 2nd – 5th Respondents’ brief on the same day.
At paragraph 3.0 on page 8 of the Appellants’ brief, the learned counsel for the Appellant, J. Abbas Ibrahim, distilled the following three (3) issues for determination in the appeal from the seven (7) grounds of appeal:-
“(i) Whether failure of the trial Tribunal to advert to the essential element under Section 66(1)(i) of the 1999 Constitution which is that of “presentation of forged documents” had not led it to the erroneous conclusions that the Petitioners/Appellants had not proved their case beyond reasonable doubt? (See Grounds 2, 3, 5 and 6).
(ii) Whether the trial tribunal was right in holding that the forgery on the face of Primary School Certificate KT No. 0002441 was not at the instance of the 1st Respondent or not? (See Ground 1).
(iii) Whether the findings of the trial tribunal that the 1st Respondent was qualified to contest the National Assembly Elections held on 21/4/2007 is not perverse in the light of the evidence before it? (See Grounds 6 and 7).”
These issues were argued together by the learned counsel in the brief.
On his part, Mr. Uyi Igunma, learned counsel for the 1st Respondent submitted a single issue which he said arises for determination in the appeal. It is as follows:-
“Whether the Tribunal was right to hold that the Appellant failed to establish beyond all reasonable doubt that the 1st Respondent’s educational certificates/results stated in his INEC form CF001 were forged.”
I have observed that the learned counsel for the 1st Respondent did not file a brief of argument in respect of the Cross Appeal or argue the cross-appeal in the 1st Respondent’s brief. The legal consequence of failure by an Appellant who the 1st Respondent is in respect of the cross appeal, to file a brief of argument in support of the appeal is that such Appellant would be deemed in law to have been abandoned the appeal. See BAKAM V. ABUBAKAR (1991) 6 NWLR (PT.199) 564, ADISA V. STATE (1991) 1 NWLR (PT.168) 490. Such an appeal is liable to be dismissed under Order 17, Rule 10 of the Court of Appeal Rules, 2007. See ADISA V. STATE (supra), EKPETO V. WANOGHO (2004) 11 -12 SC, 201 at 206 – 7, ADEBAYO V. SHOGO (2005) 2 SC (PT.1) 1 at 15 -16.
For being abandoned, the 1st Respondent’s cross-appeal is hereby dismissed pursuant Order 17, Rule 10 of the Rules of Court, 2007.
Tanimu M. Inuwa, the learned counsel who settled the 2nd – 5th Respondents’ brief also submitted a single issue for determination in the appeal at paragraph 3.1 on page 2 of the brief. It is in the following terms:-
“3.1…
Whether the 1st Respondent was not qualified to contest the Katsina Central Federal Constituency Election of 21st April, 2007 having regards to the pleadings and evidence adduced before the Trial Tribunal.”
The briefs of arguments were adopted by the learned counsel at the hearing of the appeal on the 24/11/09 as their submissions on the issues raised by them in support of their positions in the appeal.

As required by the principles of law in judicial practice, I would consider and determine the preliminary objection raised by the 1st Respondent since it questions the judicial power and authority or jurisdiction of the court to entertain the appeal. Because the primary aim and object of the objection is to terminate the proceedings in the appeal at the stage it was raised if successful, the law and indeed prudence require that it be settled first before a consideration of the issues raised in the appeal on the merit. This is based on another principle of law that the jurisdiction of a court is of such a fundamental and crucial nature in judicial proceedings that it is regarded as a threshold issue the absence of which would render such proceedings a nullity ab initio no matter how well they were otherwise conducted. This is one the very elementary principles of law that I am tempted to say it is now common knowledge in judicial practice in all our courts of superior record in particular. It would be a mere formality to cite or set out judicial authorities which support it and I am ready to abide by that formality. See ONYEMA V. OPUTA (1987) 6 SCNJ 176, TIZA V BEGHA (2005) 5 SC (PT.II) 1, COTECNA INTERNATIONAL LTD V. IVORY MERCHANT BANK LTD (2006) ALL FWLR (PT.315) 26.
So in order to avoid an exercise in futility, I intend to decide the preliminary objection first before, if necessary considering the issues raised in the appeal.
The first ground on which the preliminary objection was raised is:-
The court has no jurisdiction to entertain the appeal as the appeal arose from a petition which was ab initio incompetent for being statute-barred in that the petition was filed outside the 30 days period limited by Section 141 of the Electoral Act, 2006; the petition was filed on the 21st of May, 2007 against the result of the election which was declared on 21st April, 2007.
In his submissions on the ground, the learned counsel for the 1st Respondent had conceded that the issue was not raised at the trial of the petition and that it is being raised for the first time in this court. He argued that being an issue of jurisdiction which is so fundamental, it can be raised at any time even at this stage with or without the leave of court or by the court suo motu. The cases of N.D.C.V. A.S.W.B. (2008) ALL FWLR (PT.422) 1052 at 1077 and Appeal No. CA/K/EP/GOV/28/08; IBRAHIM V. SHEMA dated 8/1/09, said to be on all fours with the present appeal.
He then set out the provisions of Section 141 of the Electoral Act, 2006 and contended that the petition was filed outside the 30 days period limited by the Act because it was filed on the 21/5/07 when the result of the election in question was declared on 21/4/07. He relied on the case of IBRAHIM V. SHEMA (supra) not yet reported, and another decision of the court in appeal P. IKHARAILE V. T. OKOH in appeal NO. CA/B/EPT/221/08 which has now been reported in (2009) 12 NWLR (PT.1154) 1. Pages 4, 17, 19 and 21 of the printed record of appeal were referred to by learned counsel on the fact that the petition was filed on 21/5/07 as well as paragraphs 2 and 2H of the petition which are at pp.4 and 9 of the record and paragraphs 1 and 3 of Exhibit PK (Appellants’ statement on Oath) admitted in evidence at page 119 of the record to show that the result of the election was declared on the 21/4/07. It was submitted by him that the implication is that the petition was filed out of time and ipso facto incompetent relying on the cases of KUMALIA V. SHERIFF (2008) ALL FWLR (PT.431) 1032 at 1045, AKUME V. SIMON A. LIM a decision of this Court delivered on 16/6/08 in Appeal No. CA/J/EP/SN/107/2008, ANPP V. USMAN (2008) 12 NWLR among others. Furthermore, it was submitted that in the interpretation of statutes, especially where the words are clear and unambiguous, sympathy for the litigants is not an issue or a consideration on the authority of KRAUS THOMPSON ORG. V. MIPSS (2004) 17 NWLR (PT.901) 44 at 60 -1. In addition that election petition proceedings being sui generis, a slightest procedural defect which otherwise would be cured or waived in ordinary civil proceedings could be fatal to the petition. Reliance was placed on the statement of Uwaifo, JSC in BUHARI V. YUSUF (2003) 14 NWLR (PT.841) 446 and were urged by the learned counsel to uphold the objection on the ground and accordingly strike out the appeal.
In his response to the ground of the objection, learned counsel for the 1st Respondent after acknowledging the fundamental nature of the issue of jurisdiction, said the issue was raised without the leave of court and that none of the cases cited by the learned counsel for the Appellant support that. He then went on to say that because the court did not raise it suo motu the Appellant cannot do so without leave having failed to raise it at the trial. The cases of NOIBI V. FIKOLATI (1987) 1 NWLR (PT.52) 619 at 632 and AMAECHI V. INEC (2008) ALL FWLR (PT.407) 1 were relied by him for the submission. In addition, Paragraphs 49(2) and (5) of the First Schedule to the Electoral Act, 2006 were set out and it was argued that since the issue was never raised or canvassed at the trial which the 1st Respondent participated in, then it cannot be raised in any way by virtue of the paragraphs pursuant to which both the Tribunal and this court lack the competence to adjudicate on same. According to learned counsel since the 1st Respondent had taken some steps after noticing the defect in the petition and the issue was not raised timeously. He cited the unreported decision of the court in appeal No. CA/B/EPT/34251/08; AGAGU V. MIMIKO delivered on 23rd February, 2009 in which the case of NYAKO V. INEC (2009) 2 NWLR (PT.1126) 524 at 601 was relied on in the application of the provisions in paragraphs 49(2) and (5). It was the contention of learned counsel that where the Tribunal or this Court falls foul of the paragraphs the decision is a nullity because by the time the issue would be entertained it had lost the vives to do so and that jurisdiction is not graded in degrees. Further, that the paragraphs relate to all aspect of jurisdiction; substantive or procedural as was made clear in the case of ALAO V. ACB LTD (2000) 9 NWLR (PT. 672) 267 at 282.
On the computation of time for filing of an election petition, learned counsel said the decisions of this court are varied and inconsistent. On the one hand there are the decisions in IBRAHIM V. SHEMA, AKUME V. LIN and KUMALIA V, SHERIFF all (supra) wherein it was held that the computation of time starts with and from the date of the declaration of the result. The cases of UGWU V. IGWE (1999) NWLR (PT.600) 649, NNONYE V. ANYICHIE (1989) 2 NWLR (PT.101) 120 and KAMBA V. BAWA (2005) 4 NWLR (PT.914) 43 at 78 on the other hand where the court held that the computation of time starts from the next day after the declaration of the result. He said since the court was not invited to depart from the latter decisions, the decisions are binding and any decision to the contrary is reached per incuriam, relying on the case of NWANKO V, GOV. OF RIVERS STATE (1989) 2 NWLR (PT.204) 470. Learned counsel then urged us to depart from the decisions in KUMALIA V. SHERIFF (supra) and OGEIBOR V. DANJUMA (2003) 15 NWLR (PT.843) 403 on the ground that the decisions are inconsistent with the decision of the Supreme Court in YUSUF V. OBASANJO (2003) 16 NWLR (PT.847) 532 more so since the court’s attention was not drawn to the cases of NNONYE V. ANYICHIE and KAMBA V. BAWA in its decisions in either KUMALIA or OGBEBOR.
In another vein, learned counsel said where there are conflicting decisions of the same court, the rule is that both should be given effect as long as they were relied upon by a litigant. It was the view of counsel that all the decisions of this court that are at variance and contrary to the decision of the Supreme Court in YUSUF V. OBASANJO were reached per incuriam as they were decided on wrong principle of law because the decision of the Supreme Court binds this Court. Finally, it was submitted that in so far as the interpretation of Section 141 of the Electoral Act, 2006 is concerned regarding the computation of time for the filing of an election petition the decision in YUSUF V. OBASANJO is the locus classicus on Section 141 of the 2006 Act. We were urged to dismiss the objection.
From the opening arguments of the learned counsel for the Appellant, it would appear that he is objecting to the raising of the preliminary objection in this court for the first time, relying on the provisions of paragraphs 49(2) and (5) of the First Schedule to the Electoral Act, 2006. The paragraphs are as follows:-
“49.(2) An application to set aside an election petition or a proceeding resulting therefrom 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.
(5). An objection challenging the regularity or competence of an election petition shall be heard and determined before further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is notice.”
In my view these provisions are straight forward and clear as to what their purport or purposes are. The provisions say and require that any defect known or noticed on the face of the election petition shall be challenged promptly or immediately it is known or noticed and before a party takes further steps in the proceeding after such knowledge or notice. Otherwise such defect shall not ground the setting aside of the petition or proceedings therein. Before the provisions would apply, it must be shown to the Tribunal or court when or the time a party knows or notices the defect in the petition or proceeding because that is the vital point at which it can be determined whether or not the party had taken further steps after knowing or noticing the defect. In the absence of the time when a party had known or noticed such a thing, then the provisions cannot properly apply to stop the party from applying to set aside the petition or proceedings as the case may be particularly on ground of incompetence whenever he says he knew or noticed the defect. I must say that it would merely be simplistic speculation to say that a party must notice all defects that may be contained in an election petition before or at the trial.
In any case, the objection, raised by the learned counsel for the 1st Respondent has been conceded by the Appellants learned counsel to involve or questions the jurisdiction of the Tribunal to entertain the petition in question. Learned counsel are one on the fundamental nature of the issue raised in the objection and on the law that it can be raised even at this stage either by any of the parties or the court suo motu.

I should emphasise that when an issue is one that relates to the substantial point of law such as jurisdiction, the attitude of the courts has been that it can be raised even at appeal stage by the parties without the leave of the court. In addition to the cases cited on the point, see SENATE PRESIDENT V. NZERIBE (2004) 9 NWLR (PT.878) 251.

It should be remembered that agreement, acquiescence, consent or even submission by parties does not or better still, cannot confer or vest jurisdiction on a court of law or tribunal where in law such jurisdiction does not exist. See OYEDIRAN VS. EGBETOLA (1997) 5 NWLR (PT.504) 122 AT 138, NDAYAKO VS. DANTORO (2004) 13 NWLR (PT.889) 187 at 219, OGOH VS. ENPEE (SUPRA), BAYERO VS. MAINASARA & 5 ORS. (2006) 8 NWLR (PT.982) 391.
So even if the 1st Respondent had submitted to the jurisdiction or acquiesced thereto of the Tribunal to entertain the petition if in law the petition was incompetent then the Tribunal, would lack the requisite jurisdiction to try the petition and any proceedings conducted therein would be an exercise in futility no matter how well they were conducted. OKE VS. OKE (2006) 17 NWLR (PT.1008) 224, NOKOPRISE ENT. CO. VS. DOBEST TRADING CO. (1997) 9 NWLR (PT.520) 334.
Because the law recognises that the issue of jurisdiction is so intrinsic in judicial proceedings, it allows or permits it to be raised even for the first time in the Supreme Court as stated in the cases cited by learned counsel on the point.
See also ADELEKE VS. O.S.H.A (2006) 16 NWLR (PT.2006) 608.
In addition, the use of the words “An application” in paragraph 4a(2), suggests that the provisions are to be applicable in proceedings at the trial Tribunal where applications are usually used as the methods or ways of seeking orders which pertain to the setting aside a petition or any part of the proceedings therein. Failure by a party therefore to apply as provided in the paragraph would not stop him from filing a preliminary objection to challenge the competence of a petition to appeal against the decision of the Trial Tribunal in this Court.
The Rules of this Court which regulate and govern the practice and procedure in this Court by virtue of the combined effect of section 151 of the Electoral Act and paragraph 50 of the First Schedule thereto, specifically, have in order 10(1) provided an Appellant with the right to rely upon a preliminary objection to the hearing of an appeal by giving a notice thereof before the hearing setting out the ground(s) of the objection. No particular ground(s) was/were set out in the provisions and so an Appellant is at liberty to set out any viable ground of law, including one challenging the competence of the trial court/tribunal to try the petition from which the appeal emanated based on the incompetence of the petition itself. It is never too late to challenge the competence of an action which necessarily involves and questions the jurisdiction of the trial court/tribunal to entertain it. STATE VS. ONAGORUWA (1992) 2 SCNJ1.
For these reasons, I find the preliminary objection filed by the 1st Respondent a competent objection which on the principles of law stated and restated in the cases cited, the court has the necessary and requisite vires to entertain. See OJUKWU VS. YAR’ADUA (2009) 12 NWLR (PT.1154) 50 at 106.
It may be recalled that, the 1st ground of the objection is that the Appellants’ petition was filed outside the period prescribed by section 141 of the Electoral Act and therefore statute barred.
In simple language, an action or a petition as in this appeal is said to be statute barred when it was filed, or presented after the expiration of the period prescribed and limited by the relevant statue within it is to filed or presented. The Period prescribed or limited by a statute of limitation is usually computed from the date the cause of the action arose, accrue or when specifically provided for in the statute itself. See generally EGBE VS. ADEFARASIN (NO.2) (1987) 1 NWLR (PT.47) 1, (1987) 1 SCNJ 1, ADIMORA VS. AJUFO (1988) 1 NSCC 1005 AT 1006, OBETA V OKPO (1996) 9 NWLR (PT.473) 401 AT 429, AMUSAN VS. OBIDEYI (2005) 6 SC. 147
The Electoral Act which is the relevant Statute of limitation in respect of the time within which an election petition may be presented, filed or brought before an Election Tribunal made the following provision in its now very known section 141:-
“141. An election petition under this Act shall be resented within thirty (30) days from the date the result of the election is declared.”
Luckily for us here, the above provisions have been considered and held by this Court to be very clear and unambiguous such that there is no need for resort to any external aid in their interpretation. Among the cases on which the decision was taken by this Court, are the cases of IBRAHIM VS SHEMA, KUMALIA VS. SHERIFF, NYAKO VS. A.C., AKUME VS. LIN AND JANG VS. A.C. (all supra) cited by learned counsel in their respective briefs. In particular, a full panel of this Court in the case of KUMALIA VS. SHERIFF ALSO REPORTED IN (2009) 9 NWLR (PT.1146) 420 432-3 had stated thus:-
“The golden rule of interpretation is that where the words of a statute are clear and unambiguous, the courts must adopt the literal and plain ordinary meaning. Where the provisions of a statute are clear, plain and unambiguous, the courts are precluded from resorting to any aid or any other cannon of interpretation.”
Dealing specifically with the provisions of section 141 the court had held at page 433 – 4 of the report that:-
“In the construction of statute, plain words must be given plain meaning. In the instant case, the section 141 of the Electoral Act, 2006, are clear and unambiguous and as such must be given their literal and ordinary meaning without recourse to the interpretation Act.”
As far as the interpretation of section 141 of the Electoral Act, 2006 is concern, the case of KUMALIA VS. SHERIFF is the locus classicus and the binding of authority on this Court and all other courts or tribunals below it. As is the accepted judicial practice until the decision in the case was reviewed and changed or varied, the court or any court or tribunal, below it would be at liberty to say its views on it. But must by the established principle of stare decisis, be bound by it, as far as election petitions in respect of National Assembly and Governorship and Legislative Houses elections are concerned. By virtue of section 246(3) of the 1999 Constitution, the decisions of the court in respect of appeals arising from such election petitions shall be final and therefore binding until departed from or changed by a full panel of the court. The decision in KUMALIA VS. SHERIFF has not been changed on the interpretation as well as the application of the various aspects of section 141 on the time within which to file an election petition and when the time starts to run for the purposes of the computation of the time limited therein.
I would observe here that the learned counsel did not dispute that the provisions of section 141 are plain, clear and unambiguous and so do not require or need any external aid to be interpreted. He only maintained that the case of YUSUF VS. OBASANJO, which was decided on the basis of similar provisions in the Electoral Act, 2002, is the locus classicus with regard to the computation of time for filing an election petition. The same case was cited in support of the similar argument by the learned counsel in the KUMALIA VS. SHERIFF case but it was as in the other cases decided by this court, distinguished on the ground that the issue of when time started to run for the purposes of filing an election petition was never raised or decided by the Supreme Court in that case. As is common knowledge now, the primary issue considered and decided by the Supreme Court in the YUSUF VS. OBASANJO case was the time within which an amendment to an election petition could be made. To that extent it is not correct with due respect to the learned counsel for the Appellant to say and even maintain that the case is the locus classicus on the issue of when time begins to run for the purposes of the presentation or filing of an election petition under the provisions of section 141.
I would however readily, agree with him that by virtue of section 287(1) of the 1999 Constitution and the doctrine of stare decisis, this Court is bound to apply the decision of the Supreme Court on any issue that comes before it for decision. It should however be remember that judicial decisions are only binding authorities for and on the issues decided therein and cannot properly be said to be binding on issues which were not directly decided by them. OGBORU V. IBORI (2005) 13 NWLR (PT.942) 319, C.A.S. V. IYEN (2005) 6 NWLR (PT.922) 496, EKWENUGO V. F.R.N. (2001) 6 NWLR (PT.708) 171.
The learned counsel for the Appellant is also right and so, I agree with him that in appropriate cases this Court can and has the power as the Court whose decisions are final in the election petitions appeals named earlier, to depart from an earlier decision. The situations in which the court can depart from its previous decision were set in the KUMALIA VS. SHERIFF case as follows:-
“(a) Where two decisions of the Court of Appeal are in conflict the court must choose between them;
(b) Where the Court of Appeal comes to the conclusion that a previous decision although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court;
(c) Where the Court of Appeal comes to the conclusion that a previous decision was given per incuriam i.e in, ignorance of a statute or other binding authority, the court is not bound by it; and
(d) Where the previous decision was decided without jurisdiction.”
For reasons given before now the learned counsel for the Appellant has not effectively demonstrated that the decisions in KUMALIA VS. SHERIFF and the other cases on the interpretation of section 141 of 2006 Electoral Act are in conflict with the cases of KAMBA VS. BAWA and the others which were not decided on the 2006 Electoral Act. Moreover this Court had held that in the interpretation of section 141 of the Electoral Act, 2006, the Interpretation Act used in those decisions would not apply since the words used in the section are clear, plain and unambiguous.
On the condition (b) above, there has not been a subsequent decision of the Supreme Court on the interpretation of section 141 of the 2006 Act on when time begins to run for the purposes of filing an election petition against which the decision in KUMALIA VS. SHERIFF cannot stand. In addition, there is no decision by a full panel of this Court concluding that the decisions in KUMALIA VS SHERIFF and the others were reached per incuriam. Rather, this Court had in subsequent decisions followed and applied the said decisions in its interpretation of section 141. See IBRAHIM VS. SHEMA, AKUME VS. LIN, ANPP VS. USMAN, A.C. VS. JANG (ALL SUPRA) KUPOLATI VS. ORE (2009) ALL FWLR (PT.486) 1858, IKHARALLE VS. OKOH (2009) 12 NWLR (PT.1154) 1.
Lastly, it has not been suggested that the court did not have the requisite jurisdiction to decide the KUMALIA VS. SHERIFF case. Consequently, none of the situations recognised by the court has been established in this appeal to warrant this court to depart from that decision as well as the others on the interpretation of section 141 of the 2006 Electoral Act in respect of when time starts to run for the purposes of the computation of time within which an election petition may be filed. I must emphasize that as a decision of a panel of five (5) Justices of this Court or a full panel as it is called, a panel of the court consisting of less number of Justices cannot properly depart from or change the decision in KUMALIA VS. SHERIFF. Like I said before now, being a final decision up to this moment on the interpretation of section 141 of the Electoral Act, 2006, all divisions of the court are bound by that decision no matter how strongly and firmly a different or contrary opinion is held by any one or more of the Justices until it was competently and properly changed or departed from. See PETERS VS. DAVID (1999) 8 NWLR (PT.603) 486, BRAITHWAITE VS. M.S.LS.A (2001) 5 NWLR (PT.707) 596, JATAU VS. AHMED (2003) 1 SCNJ 382, I.T.P.P VS. UBN (2006) 13 NWLR (PT.995) 483 at 504, (2006) ALL FWLR (PT.324) 1798 at 1803.
Proceeding in the above premises, the thirty (30) days provided for in the provisions of section 141 within which an election petition may be presented would be computed from the date the result of the election in question was declared.
In other words, time would start to run for the purposes of computing the period of time prescribed or limited by the section from the date the result of the elects was officially declared by the electoral body; INEC.
The learned counsel for the 1st Respondent had pointed out that the result of the election in the appeal was declared on the 21/4/2007, relying on paragraphs 2 and H2 of the Appellants’ petition at pages 4 and 9 of the record of appeal as well as paragraphs 1 and 3 of the Appeliants’ statement on oath which was admitted as Exhibit PK at page 119 of the record of appeal.
I have observed that the date of the declaration of the result of the election i.e, the 21/4/2007 was not disputed by either the Appellant or his learned counsel in this appeal.
Consequently, the date is taken and deemed to have been the admitted date on which the result of the election was declared by INEC.
Similarly, there is no dispute on the fact that the Appellants’ petition questioning the election was presented or filed on the 21/5/2007. The endorsement by the secretary of the lower Tribunal on the face of the petition at page 4 of the record of appeal and the statement by him at the last page of the petition which is at pages 9 – 10 of the record of the appeal leave no room for any doubt that the Appellants’ petition was presented for filing and was filed on the 21/5/2007.
With these undisputed facts, the task of determining whether or not the Appellant’s petition was presented within the 30 days prescribed in section 141 becomes an easy one. It only involves a simple calculation of 30 days from the 21/4/2007 which is the first of those days. Thirty (30) days beginning with the 21/4/2007 would end on the 20/5/2007. But differently, thirty (30) days beginning with the 21/4/2007 expired, lapsed or ended on the 20/5/2007 which was the last of the days. Quite clearly therefore, the Appellant’s petition filed on or presented before the lower Tribunal on the 21/5/2007 was filed or presented one day after the expiration of the thirty (30) days prescribed by section 141 of the Electoral Act, 2006. For that reason, the petition was filed outside the period of time limited by the provisions of that section and as a result it was time or statute barred. Consequently, it was incompetent in law and the lower Tribunal was thereby robbed of the requisite jurisdiction to entertain it. See KUMALIA VS. SHERIFF, KUPOLATI VS. OKE, IKHARAILE VS. OKOH (ALL SUPRA), UMARU VS. ALIYU APPEAL NO. CA/A/EP/317/2007 AND CA/A/EP/232/2008, yet to be reported decision delivered on 19th February, 2009.
In the final result, based on the authority of these decisions, I find merit in the preliminary objection raised by the learned counsel for the 1st Respondent that the Appellants’ petition was filed outside and after the expiration of the mandatory period of thirty (30) days prescribed and limited by the provisions of section 141 of the Electoral Act, 2006. The petition was in the circumstances statute barred and therefore incompetent in law.
For lacking the necessary jurisdiction to entertain the incompetent petition, the purported trial and all proceedings, conducted by the lower Tribunal, therein are a nullity, void and has no legal effect ab initio.
With the success of the preliminary objection and this Court being the final court in respect of the appeal, the duty to consider the arguments of counsel on the issues raised in their respective briefs of argument on the merit of the appeal automatically abates. See NEPA VS. ANGO (2001) 15 NWLR (PT.737) 645, ANPP VS. R.O. ABIA STATE SENATORIAL DISTRICT (2005) 6 NWLR (PT.920) 140, ADELEKUNLE VS. ECU-LINE NV (2006) ALL FWLR (PT.321) 1213 at 1231, UBN VS. SOGUNRO (2006) 16 NWLR (PT.1006) 504 at 521 – 2.
On the whole for being statute barred, the Appellants’ petition is hereby struck out and the appeal is dismissed. The return and declaration of the 1st Respondents the winner of the election in issue by the 2nd – 5th Respondents is hereby affirmed.
Parties are to bear their respective costs in prosecuting the appeal.

JOHN INYANG OKORO, J.C.A: I had the privilege of reading before now the judgment of my learned brother, GARBA, JCA just delivered and I agree with him that the preliminary objection raised by the learned counsel for the 1st Respondent to the hearing of this appeal has merit and should be upheld. It is also my view that having upheld the preliminary objection, it makes no sense to consider the issues formulated for the determination of the appeal.
Let me once again add my voice to the issue that

whenever the jurisdiction of a court is challenged, it must be determined first before further steps are taken in the matter. This is so because where a court has no jurisdiction to entertain a matter, no matter, how well the case is conducted and/or how well the judgment is written and delivered, it goes to no issue being null and void ab initio. See AG Federation V. Abubakar (2008) 16 NWLR (pt 1112) 135, SC, James V. Okereke (2008) 13 NWLR (pt 1105) 544.

I need to emphasise that, parties cannot by agreement, consent, or acquiescence confer jurisdiction on a court where it has none. See Oyediran V. Egbetola (1997) 5 NWLR (pt 504) 122. NCC V. MTN (Nig). Ltd (2008) 7 NWLR (pt 1086). The issue of jurisdiction being so fundamental to adjudication, it can be raised at any time during the trial or even for the first time on appeal.
In the instant appeal, the main issue or ground on which the preliminary objection is anchored is that:-
“The court has no jurisdiction to entertain the appeal as the appeal arose from a petition which was at initio incompetent for being statute – barred in that the petition was filed outside the 30 days period limited by section 141 of the Electoral Act, 2006, the petition was filed on the 21st day of May, 2007 against the result of the election which was declared on 21st April, 2007”
Clearly, this petition was filed on the 31st day from the date the result was declared. Section 141 of the Electoral Act 2006 states:-
“An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared”
There is no gainsaying that the above provision is very clear and unambiguous. Therefore, it has no need for the aid of an interpretation Act. Where the words of a statute are very clear and unambigupus, courts are enjoined to give them their usual and ordinary grammatical meaning and in this case the section means that time begins to run “from the date the result of the election is declared”, simple. See Kumalia v. Sheriff (2009) 9 NWLR (pt 1146) 420.
That being the case, the petition having been filed a day after the 30 days allowed by the Electoral Act, 2006, is infected by an incurable virus which makes it statute – barred. What this means is that, the grievance of the Appellant or his right to bring the petition before a court of law becomes extinct. That is the truth. In the circumstance therefore, I agree with my learned brother, Garba, JCA that the preliminary objection succeeds and is also upheld by me. I abide by all the consequential orders made in the lead judgment. I also agree that parties should bear their respective costs.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read in advance the judgment delivered by my learned brother, M.L Garba, J.C.A, and I agree with him that the appeal has no merit whatsoever as it was statute-barred as at the time the Petition was filed at the trial Tribunal on 21/5/07 considering paragraph H2 of the petition which succintly stated the date on which the election result was declared.

In the instant appeal, the Petitioner, at paragraph H.2 of the petition, specifically asserted the date on which the cause of action arose. He sought for a declaration that the election, declaration and return of the 1st Respondent by the 5th Respondent as the duly elected member representing Katsina Federal Constituency on 21st April, 2007 is null and void. It is clear in the pleadings of the Petitioner that the date of declaration of the result of the election to the House of Representatives for Katsina Central Federal Constituency was the 21st April, 2007. It is apparent from the pleadings of the parties that there was no conflict or disagreement between the parties regarding the date stated by the 1st Respondent as the date on which result of the election was declared. 1 would, therefore, in all respects, and, for all the reasons stated in the leading judgment, and the legal authorities cited therein, also, dismiss this appeal and affirm the decision of the trial Tribunal. There will be no order as to costs.

Appearances

G.A. Attah and Gambo Abubakar
J. Abbas Ibrahim.For Appellant

AND

Uyi Igunma, M.I. Abubakar, Napoleon Idenala
T.M. Inuwa and Rahima Aminu (Ms)For Respondent