3PLR – ABIMBOLA DARAMOLA V. WALE ARIBISALA & ANOR
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ABIMBOLA DARAMOLA
V.
WALE ARIBISALA & ANOR
IN THE COURT OF APPEAL OF NIGERIA
ON TUESDAY, THE 19TH DAY OF MAY, 2009
CA/IL/EP/REP./13/2008
3PLR/2009/1 (CA)
OTHER CITATIONS
(2009) LPELR-8515(CA)
BEFORE THEIR LORDSHIPS
JUMMAI HANNATU SANKEY, JCA
IGNATIUS IGWE AGUBE, JCA
CHIMA CENTUS NWEZE, JCA
BETWEEN
ABIMBOLA DARAMOLA – Appellants
AND
WALE ARIBISALA
INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondents
REPRESENTATION
- O. BALOGUN;
- A. HASSAN – For Appellant
AND
BAMIDELE OMOTOSO – For Respondent
MAIN ISSUES
ELECTION PETITIONS – COMPUTATION OF TIME: Section 141 of the Electoral Act – Whether is an exception to the provision of the Interpretation Act as to computation of time – Whether the provisions of Section 141 of the Electoral Act should be solely considered in determining the question of computation of time in election petitions
ELECTION PETITIONS – COMPUTATION OF TIME: Sunday – Whether is a public holiday and as such cannot be counted in computing the time within which an election petition must be presented.
ELECTION PETITIONS – ELECTION PETITION PROCEEDINGS: Whether Election petitions proceedings are in a special class of their own – prohibition of indefinite adjournments or adjournments sine die by virtue of paragraph 25(1) of the said first schedule (Electoral Act) –
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – OBITER DICTA: Issues for determination based on a ground of appeal from a concurring judgement which is different from the leading judgement – Whether amounts to an obiter dictum
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – CASE LAW – RATIO DECIDENDI: What constitutes the ratio decidendi of a case – Whether every opinion or statement of principle in the judgement even if they do not relate to the material facts of that case constitute ratio decidendi
INTERPRETATION OF STATUTE – PUBLIC HOLIDAYS ACT: Interpretation of the public Holidays Act as to determine days that constitute public holidays
INTERPRETATION OF STATUTE – SEC 1 OF THE INTERPRETATION ACT: Whether the Interpretation Act excludes other enactments (Electoral Act) which evince contrary intentions from its ambit and application.
INTERPRETATION OF STATUE – SECTION 15(2)(A) OF THE INTERPRETATION ACT: Rule that where a period is reckoned from a particular event, it excludes that day on which the event occurs – Legal effect – Whether limited time does not include the day of the happening of the event – Order 23 Rule 1(a) of the Federal High Court (Civil Procedure) Rules in review
MAIN JUDGMENT
CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment):
On April 21, 2007, the appellant who was the petitioner at the National Assembly/Governorship and Legislative Houses Election Petition Tribunal sitting at Ado Ekiti contested election for the Ekiti North Federal Constituency. While he was sponsored by the Action Congress, the first respondent was sponsored by the People’s Democratic Party.
Dissatisfied with the outcome of the election in which the first respondent was declared the winner, the appellant [petitioner as he then was] filed a petition at the said National Assembly/Governorship and Legislative Houses Election Petition Tribunal sitting at Ado Ekiti, [subsequently to be referred to as the lower tribunal].
Pleadings were duly settled and exchanged. In the course of the actual hearing of the petition, the first respondent beseeched the lower tribunal with a notice of preliminary objection. In it, he canvassed the question of the competence of the tribunal to entertain the petition which, he alleged, was not filed within thirty days of the declaration of the results as stipulated in section 141 of the Electoral Act, 2006.
Again dissatisfied with the outcome of the ruling which upheld the first respondent’s objection, the petitioner [now the appellant] has appealed to this court entreating it to determine the following questions:
- Whether the Honourable tribunal was right by His Lordships’ finding that the Interpretation Act was not applicable and/or cannot be applied to interpret section 141 Electoral Act 2006 and thereby include the day of Declaration of Result in the counting of 30days within which to file petition.
- Whether the Honourable Tribunal was not wrong by not following the decision of the Supreme Court in the case of Yusuf v Obasanjo and the Federal High Court (Civil Procedure) Rules 2000 while interpreting Section 141 of the Electoral Act 2006 when the provision of Electoral Act 2002 interpreted by the Supreme Court is ipsima verba (sic) of the provision of Section 141 Electoral Act 2006.
- Whether the Honourable Tribunal was not wrong by His Lordships’ finding that the petition was filed one day out of time stipulated by Section 141 Electoral Act 2006 when the last day falls on Sunday.
The first respondent also formulated three issues which were couched thus:
(i) Whether the lower tribunal was right when it held that the provision of the Interpretation Act, Laws of Nigeria, was not applicable to the provisions of section 141 of the Electoral Act, 2006, in the computation for the presentation/filing of election petition under the Act.
(ii) Whether the tribunal was right by not following the decision of the Supreme Court in the case of Yusuf v Obasanjo and the Federal High Court (Civil Procedure) Rules 2000 in the computation of time for presentation/filing of election of election petition under the Electoral Act, 2006.
(iii) Whether the petition of the appellants was properly struck out on the ground of want of jurisdiction by the lower tribunal.
The first two issues which the parties formulated [as shown above] are substantially the same although expressed in different phraseologies. However, I shall take the liberty to hone the issues that call for determination to precision as shown hereunder:
(i) Was the lower tribunal right in holding that the provisions of the Interpretation Act are inapplicable to the provisions of section 141 of the Electoral Act, 2006, in the computation of time for the presentation of an election petition?
(ii) Was the said tribunal right in not following the authority of Yusuf v Obasanjo and the Federal High Court (Civil Procedure) Rules 2000 in the computation of time for the presentation of an election of election petition under the Electoral Act, 2006?
(iii) Was the tribunal right in its finding that the petition was filed one day out of time when the last day fell on a Sunday?
We shall attend to them in that order, first Issue One:
ISSUE 1
Was the lower tribunal right in holding that the provisions of the Interpretation Act are inapplicable to the provisions of section 141 of the Electoral Act, 2006, in the computation of time for the presentation of an election petition?
Learned counsel for the appellant argued issues one and two together. He cited section 141 Electoral Act, 2006; the long Title of the Interpretation Act; Sections 1, 15, 37 of the said Interpretation Act and the provisions of Order 23 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000.
He took the view that paragraph 50 of the First Schedule to the Electoral Act, 2006 makes the application of the Federal High Court (Civil procedure) Rules to Election petition possible.
He noted that the petition was filed on May 21, 2007, citing the endorsements on the petition by the Secretary to the Election Petition Tribunal [page 1 of the Record).
Counsel observed that the election result to the House of Representatives [Ikole/Oye Constituency] was declared on April 21, 2007, citing exhibit “A” attached to the supporting affidavit [page 26 of the Record).
In his view, the question to be resolved is whether the petition was presented out of time having regard to the provisions of the Electoral Act 2006, the Interpretation Act and the Federal High Court (Civil Procedure) Rules.
He contended that the Interpretation Act applies to the provisions of every enactment, except where a contrary intention is contained either in the Interpretation Act itself or in the particular enactment to be interpreted. Thus, by section I of the Interpretation Act, the applicability of Section 15 of the same Act to the Electoral Act 2006 becomes mandatory. This is so for the Electoral Act qualifies as an enactment or Act of the National Assembly, citing Black’s Law Dictionary Second Pocket Edition, at Page 234 for the meaning of “A statute.”
Citing the long Title of the Interpretation Act, counsel submitted that the Act ought to be applied while construing Section 141 of the Electoral Act 2006 especially because of the clear provisions of section 15 of the Interpretation Act which govern the manner of interpreting the words “from” and “where a period is reckoned from a particular event” in any enactment.
He further submitted that the two limitations or exceptions indicated in section 1 of the Interpretation Act are inapplicable to the Electoral Act 2006 on account of absence of a clear provision to that effect in the Interpretation Act itself. This is even more so when the Electoral Act 2006 does not contain any express provision that the Interpretation Act will not be applied, citing Adefemi v Abegunde (2004) 15 NWLR (pt. 895) 1,20 and Iyirhiaro v Usoh (1999) 4 NWLR (pt. 597) 41, 49 – 50 paragraphs H.
Emboldened by these cases, he canvassed the view that in the computation of time for presenting an election petition, the day of the declaration of results is excluded, citing Auto Import v Adebayo (2002) 12 SCNJ 124, 135.
Next, he turned to the question of the applicability of the Federal High Court High Court (Civil Procedure) Rules, 2000, in the interpretation of section 141 (supra).
He submitted that for a proper interpretation of the provisions of Section 141 of the Electoral Act 2006, recourse must be had to the Federal High Court (Civil Procedure) Rules 2000, applicable pursuant to the provision of paragraph 50 of the First Schedule to the Electoral Act itself.
Citing Order 23 Rule 1(a) – (d) of the Federal High Court (Civil Procedure) Rules (supra), he contended that these rules on the computation of time are in pari materia with the provision of section 15 of the Interpretation Act.
On this premise, he took the view that even if the Interpretation Act is inapplicable in the interpretation of section 141 (supra), Order 23 of the above Rules ought to be applied. According to him, since the manner of the interpretation of the word “from” and the limitation of time for doing certain thing are not expressly contained in the Statute itself, recourse must be had to the above Rules, citing Atikpeke v Joe (1999) 6 NWLR (pt 607) 428, 438.
In his view, the above decision makes it abundantly clear that even without the Interpretation Act, the counting of 30 days within which to file petition as provided for by Section 141 (supra) will start to run from the next day after the declaration of the results.
Above all, he noted that the Federal High Court (Civil Procedure) Rules 1976 were in pari materia with the 2000 Rules except for the inclusion of Saturdays or Sundays in Order 23(1) (d).
Applying this principle to the instant appeal, he maintained that the computation of thirty days should have been from April 22, 2007 since the result of election was declared on April 21, 2007 by form EC8E(1) which is the Declaration of Result Form, Exhibit A [page 26 of the Record].
Learned counsel contended that Yusuf v Obasanjo (2003) 16 NWLR (pt. 847) 554 laid to rest the issue of the proper interpretation of section 132 of the Electoral Act 2002 and Section 141 (supra), citing Tobi JSC at pages 605 – 606.
He submitted that in the light of the approach of Tobi JSC, it was mandatory for the lower tribunal to apply the above Rules while interpreting any part of the provisions of the Electoral Act 2006. He referred to the contributions of Uwaifo and Edozie JJSC (as they then were) in the case, pages 629 and 623, respectively.
Against this background, he submitted that contrary to the findings of the lower tribunal, the Supreme Court excluded the day of declaration of results in computing the thirty days stipulated by section 132 of the Electoral Act 2002. A calculation of thirty days from April 22, to May 22, 2002 would definitely be thirty one days if the day of the declaration was included.
He urged the court to follow the Supreme Court’s interpretation of section 132 and hold that the day of the declaration of results is excluded in the computation of the thirty days.
Counsel noted that this court in the subsequent case of PDP v Haruna (2004) 16 NWLR (pt. 900) 597 followed Yusuf v Obasanjo (supra) and excluded the day of the declaration of results. He contended that this decision of this court further buttresses the point that the Interpretation Act and the Federal High Court Civil Procedure Rules are applicable in the computation of the period of thirty days prescribed by section 141 of the Electoral Act 2006.
He submitted that the decisions of Ogbebor v Darljuma (2003) 15 NWLR (pt.843) 403; Kamaila v Sheriff [unreported Appeal No. CA/J/EP/GOV/244/2007] and Action Congress & Anor v Jang (unreported) Appeal No. CA/J/EP/GO V/275/2007 relied upon by the lower tribunal cannot override Yusuf v Obasanjo (supra) where section 132 similar to section 141 of Electoral Act 2006 was construed and interpreted to mean that the day of the declaration of results would not be counted in computing the thirty days by virtue of the Federal High Court Civil Procedure Rules.
He urged the court to follow this court’s decisions in Iyirhiaro v Usoh (supra) Adefemi v Abegunde (supra), Atikpekpe v Joe and PDP v Haruna (supra) where this court applied the provisions of the Interpretation Act and Federal High Court (Civil Procedure) Rules to hold that the day of the declaration of election results will be excluded in the computation of time for filing petitions.
He submitted that this court can validly depart from the decisions of Kumaila v Sheriff and INEC v Jang (supra) having regard to Yusufv Obasanjo (supra). What is more, this court can choose between its two conflicting decisions, Kumaila v Sheriff (unreported) (supra) at page 19; Akinde v NASU (1999) 2 NWLR (pt 592) 570, 58 – 582, Adun v Osunde (2003) 16 NWLR (pt. 847) 643, 661 D – G.
In the light of the foregoing, he urged the court to follow the Supreme Court decision and the decisions of this Court which adopted the Interpretation Act and the Federal High Court (Civil Procedure) Rules 2000, Udo v State (2005) 8 NWLR (pt. 928) 521, 535.
Learned Counsel for the first respondent drew attention to the provision of section 141 (supra). He submitted that the operative words in the provision are “shall be presented within thirty (30) days”. He noted that the words “shall” and “within” are of particular importance. This is so because they give indicate the intendment of the Legislature and the Court is bound to interpret the provisions in such a way as to give effect to the Legislature’s intendment.
He further submitted that when used relative to time, the word “within” means: “any time before”; any time “at or before”; any time “at the end of”; or “any time before the expiration of”; any time “not beyond”; any time “not exceeding”; and any time “not later than”. Counsel called in aid the authority of the Black’s Law Dictionary with Pronunciation (sixth edition) 1602.
Citing Ekekegbo v. Fibererima (1994) 3 NWLR (pt. 335) 707, 731, he contended that the provision of section 1’41 (supra) is to the effect that an election petition must be presented any time before the expiration of thirty days or not later than thirty days from the date the result of the election is declared. This, in his view, necessarily involves the counting of the thirty days inclusive of the date of the event of the declaration of results, citing Ogbebor v Danjuma (2003) 15 NWLR (pt. 843) 403, 434-435; Alataha v. Asin (1999) 5 NWLR (pt. 601) page 32, 44.
He noted that Ogbebor v. Danjuma (supra) and Alataha v. Asin (supra) were referred to and upheld recently by this Court in Kamalia v Sherrif & Ors [unreported Appeal No: CA/J/EP/GOV/244/2007].
Also citing Action Congress & Anor v Jang (supra), counsel submitted that an election petition arising from the April 21, 2007 election to the House of Representative [Ekiti North Federal Constituency 1 of Ekiti State of Nigeria] must be presented any time between April 21, 2007 and May 20, 2007. The period of 21st day of May to 30th of April, 2007 (both days inclusive) is ten days. The period: 1st of May, 2007 to 21st of May, 2007 (both day inclusive) is twenty one days 10 + 21 = 31.
Counsel submitted that the clear and unambiguous provision of section 141(supra) has completely obviated any reference to the Interpretation Act. He maintained that the court is bound to give the words used their ordinary meanings, Ogbebor v. Danjuma (supra) at 426 D – H; A.G., Ondo State v. A.G., Ekiti State (2001) 17 NWLR (pt. 743) 706, (2001) 10 SCNJ 117/146.
CONSIDERATION OF THE ARGUMENTS
Although most of the provisions of the Electoral Act, 2006 have been subjected to judicial interpretation, it would appear that section 141 of the Act has become an ubiquitous feature of most appeals emanating from decisions of election tribunals in recent times. Put differently, this section has continued to exercise the interpretative skills of this court to no end!
Indeed, due to the share volume of case law already built around the section, it may not be out of place to speak of the evolving jurisprudence of the computation requirements of section 141 of the Electoral Act!
Instructively, the weight of the majority of judicial opinions of this court elicited from appeals, where the main issues for determination turned squarely on the interpretation of section 141 (supra), preponderates in favour of the view that it is an autonomous or self-governing section whose provisions are clear and unambiguous. As such, it does not admit of any external aid for its interpretation.
Such judicial opinions from cases where the principal question for determination was narrowed down to the interpretation of the section can be found in reported and unreported decisions of this court. The reported ones include: Ekekegbo v. Fibererima (supra); Dgbebor v. Danjuma (supra); Action Congress & Anor v Jang (2009) 4 NWLR (pt 1132) 475; INEC v Hashidu (2009) 4 NWLR (pt 1130) 73; Tsumba v ltyomyima (2009) 9 WRN 200; Agbai v INEC (2009) All FWLR (pt 449) 594.
The unreported decisions include: Kamalia v Sherrif & ors [unreported Appeal No: CA/J/EP/GOV/244/2007]; Muraino Ayantola and Anor v Action Congress and Ors [Appeal No CA/IL/EP/SH/16/2008 unreported judgment delivered on July 18, 2008 per C.C. Nweze JCA]; Prince Kola Bukoye and ors v Action Congress and Anor [unreported judgment of this court delivered on July 18, 2008, per I.I. Agube JCA] etc.
Judicial opinions of this court which have taken the contrary view are few and far-in-between: Iyirhiaro v Usoh (supra); Atikpekpe v Joe (supra); Adefemi v Abegunde (supra); PDP v Haruna (2004). These latter cases favour the application of both the Interpretation Act and the above High Court Rules.
In my humble View, the autonomy of section 141 (supra) finds firm anchorage on the intendment of the law maker who designed the special enactment called the Electoral Act: an Act which brooks no dissipation of time! That explains why it erected an inexorable time frame: by calendaring the permissible period for consummating or accomplishing the process of presentation of an election petition. Thus, any petition presented outside that time frame is statute-barred, Agbai v INEC (2009) All FWLR (pt 449) 594,608-609; Balogun v Odumosu (1989) 2 NWLR (pt 582) 590,599.
One thing is implied in this intention of the lawmaker: the said time frame is sacrosanct or inviolable. Thus, any aggrieved person who intends to seek succour under its protective umbrage is under obligation to attend to the specified time frame with the finicality or fastidiousness of a stickler for time! The consequence is that courts lack the jurisdiction to favour any indolence or breach in this regard, see, for example, paragraph 43(1) of the first schedule to the Electoral Act which subordinates the court’s power to enlarge time to section 141 (supra), Agbai v INEC (supra) 594; Balogun v Odumosu (supra); Orubu v INEC (1988) 5 NWLR (pt.94) 323; Ogu v Ekweremadu (2006) 1 NWLR (pt 96) 255; Obasanya v Babafemi (2000) 15 NWLR (pt. 689) 1; Aregbosola v Oyinlola (2008) All FWLR (pt 436) 2018: Chime v Onyia (2009) 2 NWLR (pt 1124) 1, 37-38.
These decisions rest the logic of their ratiocinations on the principal plank that since election petitions are peculiar kinds of proceedings, time is of the essence in the interpretation of the provisions of the enactment governing such proceedings, namely, the Electoral Act.
What is more, the roots of the irrefragable premise of this logic are firmly embedded in constitutional jurisprudence. In the first place, it is the Constitution, the most fundamental law in Nigeria, which originated the idea of time frames in respect of the tenure of the elective political offices to which election matters are tied. Thus, for the effectuation of this irreversible constitutional time frame, the factor of expeditious disposal of election petitions makes it imperative that time must be reckoned with. Indeed, anything short of that may even amount to sabotage against the raison detre for inaugurating periodic elections into elective offices in a constitutional democracy such as ours, Maduako v Onyejiocha (2009) 5 NWLR (pt 1134) 259, 275; Khalil v Yar’ Adua (2003) 16 NWLR (pt.847) 446; Amgbare v Sylva (2007) 18 NWLR (pt.1065) 1.
Somewhat propitiously, I have been opportune to ventilate my appreciation of the intendment of the draftsperson’s peculiar phraseology of the syntax employed in the section. Like in the present appeal, the question of computation of time for the presentation of an election petition was directly in issue in Muraino Ayantola and Anor v Action Congress and Ors (supra). In that case, I took the view that only the provision of section 141 (supra) should be considered in determining the question of computation of time. I adduced five reasons why this should be so.
In the first place, the invocation of the said Federal High Court Rules is made subject to the express provisions of the Electoral Act, Okereke v Yar’ Adua (2008) 6 NWLR (pt. 1082) 37, 50. Thus, it is the provision of the Act on the limitation that will be taken into account. We shall put this argument in context by reproducing the provisions of paragraph 50 of the first Schedule to the Electoral Act:
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 modification 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. [italics supplied]
The phrase “subject to” in the chapter or opening sentence of paragraph 50 (supra) is a drafting devise employed by legal draftsmen to indicate a limitation or qualification. In practical terms, therefore, the effect of this phrase is that it subordinates the provision of the Federal High Court Rules on the question of computation of time to the provisions of the Electoral Act. In this case, the relevant provision can be found in section 141.
Secondly, the above provision of section 141 is clear and unambiguous’. It is settled that in interpreting statutes that contain lucid, precise and unambiguous provisions, no interpretative guides are required. The court has only one duty, namely, to give effect to the ordinary meaning of the words employed in the statute. I now, most respectfully, invite Kutigi JSC (as he then was) to settle this point. In A.G. Ondo State v A.G. Ekiti State (2001) 10 SCNJ at pages 117 – 146, His Lordship intoned very categorically:
It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions are clear and unambiguous effect must be given to them without resorting to any aid internal or external. It is the duty of the court to interpret the words of the lawmakers as used.
Cases on this point are legion. They need not detain us here.
In the third place, the provision of the above Federal High Court Rules is a general provision on time limitation. On the other hand, section 141 is a specific provision on the time of presenting an election petition. It has long been established, both in England and Nigeria, that in a situation such as this, the applicable rule of interpretation should be that expressed in the old Latin maxim, generalibus specialia derogant [special provisions derogate from general provisions], see, Schroder v Major (1989) 2 SCNJ 210.
Fourthly, it is obvious that the provisions of the Rules are inconsistent with the requirement of the Act. Whereas the rule excludes “the day or the date of the happening of the event”, section 141 stipulates that an election petition “shall be presented within thirty (30) days from the date the result of the election is declared”. In the face of this inconsistency, the applicable enactment should be the provisions of the Act, see per Tobi JSC in Yusuf v Obasanjo (2003) 50 WRN 1, 20 line 45.
What is more, the truth is that the above provision of the Federal High Court Rules is a contingent prescription whose relevance in the computation of the time for filing election petitions must be viewed from the prism of the dynamics that dictated the elevation of election petitions to special proceedings. As Acholonu JCA (as he then was) noted in Balogun v Odumosu (1999) 2 NWLR (pt. 592) 590, 597:
The issue of time to complete filing of all processes relating to hearing and determination of an election was uppermost in the mind of the legislation. The enactment stretches itself further a field to do away with tardiness and waste of time and endeavoured to constrict the time of doing a particular act within a time-frame. In other words, it is the intention of the legislators that parties stick strictly to the times slated in the [Electoral] Decree. The court should not aid anyone who decides to sleep only to wake up when it is too late.
The expressive or eloquent rationale for the rule on interpreting lucid and unambiguous words of a statute must also be noted. The explanation of the rule is simple: words and expressions employed in a statute communicate the intention of the lawmaker. So, courts are enjoined to primarily employ the expressions used in a statute in a manner consistent with their popular usage or meaning. To this end, a Judge must be meticulous about the grammar or syntax which underscores the construction of the enactment.
Let me explain. This rule is not intended to convert every Judge into a Professor Chinua Achebe or Professor Wole Soyinka. No! However, against the background of his/her rigorous training in the arcane art of legal ratiocination, and the constancy of the utilisation of that training to the explication of the letters and intendment of the statute, he becomes an expert. Above all, it is a well-known fact that words are the tools which a Judge utilises in the application of his professional expertise. Hence, nobody can justifiably impugn his ability to construe the grammar and syntax in a statute. In effect, every Judge is an expert in the grammar and syntax of the language of statutes, see, Ugwu v Ararume (2007) 12 NWLR (pt. 1048) 367, 438.
It is on this premise that we shall turn to the grammar and syntax of section 141 of the Electoral Act (supra). I note that against the backdrop of the dynamics that dictated the elevation of election petitions to special proceedings, the two prepositions “within” and “from” in that section were deliberately employed to indicate the express delimitation of the time frame for the presentation of election petitions.
A reference to their lexical meanings will clarify this point. The preposition “from” is defined as a function word which is used to indicate a starting point; in reckoning or in a statement of limits, Webster’s Ninth New Collegiate Dictionary page 494. The second preposition “within” is also a function word. It is used to indicate the situation or circumstance in the limits or compass of [a thing or the happening of an event] or not beyond the limitation of[time], Webster’s Ninth New Collegiate Dictionary page 1355.
Taken together, these two prepositions employed in section 141 (supra) come to this: the thirty days’ period for the presentation of an election petition begins to count from the date of the declaration of the results. Above all, the presentation can only take place during the continuance of the thirty days starting from that date election results were declared.
In addition to those five reasons which I earlier offered, there is yet another reason for sustaining the views of the majority of this court on this point. For example, under section 15(2)(a) of the Interpretation Act, where a period is reckoned from a particular event, it excludes that day on which the event occurs.
Equally, under Order 23 Rule 1(a) of the Federal High Court (Civil Procedure) Rules (supra), the limited time does not include the day of the happening of the event. Rather, it commences at the beginning of the day next following that day. Instructively, the emphases on both provisions are on the word “day”.
On the contrary, section 141 of the Electoral Act is emphatic on the “date the result of the election is declared”. As is well known, the lawmaker is not known for extravagating or wasting words. Thus, the choice of the word “date” in the Electoral Act as opposed to the word “day” which the drafters of the Interpretation Act and the above High Court Rules opted for must not be overlooked. An examination of the divergences in their lexical usages will put this point in bold relief.
The Chambers 21st Dictionary [page 340] defines the word “day” as a noun which means inter alia (I) a period of 24 hours called the solar day during which the Earth rotates once on its axis with respect to the Sun … (2) the period of time from sunrise to sunset. (3) the period of time in any 24 hours normally spent doing something, especially working.
The same Dictionary [page 339] defines the word “date” as a noun which means the day of the month and/or the year, recorded by a number or series of numbers. What this comes to is that whereas the word “date” refers to a specific day of either a month or a year, the word “day” represents duration in time and space within twenty four hours!
There is yet another reason which the appellant’s counsel did not factor into his submissions. Although he cited section 1 of the Interpretation Act, it would appear that he did not pay due attention to the grammar and syntax of the provision. It provides inter alia:
This Act shall apply to the provisions of every enactment except in so far as the contrary intention appears in this Act or the enactment in question. [italics for emphasis]
Now, the preposition “except” in the above section [from the roots excipere- exceptus-] is a word of exclusion: it actually means “with the exclusion or exception of’. In effect, section I of the Interpretation Act (supra) embodies an exclusionary clause. By this exclusionary clause, the draftsman simply put it beyond any doubt that the Interpretation Act would be inapplicable to all other enactments of the National Assembly which evince intentions contrary to the Act. Put differently, the Interpretation Act excludes other enactments which evince contrary intentions from its ambit and application.
The question now is: how do we set this exclusionary provision in the context of the Electoral Act? In my humble view, the answer is not farfetched. The rationale of all binding authorities is that mutually-related provisions of an enactment must be conflated for a proper appreciation of the intendment of the draftsperson, that is, courts are enjoined to read all sections of an enactment holistically to be able to decipher its intendment, Adeleke and Ors v Oyo State House of Assembly and Drs (2006) 16 NWLR (pt 1006) 608; Tukur v Govt of Gongola State (1989) 4 NWLR (pt 91)517, 579.
Quite apart from the insights gained from our analysis of the syntax and grammar in section 141 of the Electoral Act above, a conflation of other mutually related provisions of the Act [that is, the Electoral Act] will reveal that it evinces a contrary intention to both the Interpretation Act and the above High Court Rules. A clear demonstration of the fact that proceedings under the Act are on a special class of their own can be seen from the emphasis on the expeditious disposal of matters in the tribunals, see, for example, paragraph 25 (2) of the first Schedule to the Act which permits hearing to be “continued on a Sunday or on a public Holiday if circumstances dictate”.
Indeed, because of this peculiar nature of election petitions, the Act prohibits indefinite adjournments or adjournments sine die by virtue of paragraph 25 (1) of the said first Schedule [Electoral Act]’ If any further evidence is required in proof of the assertion that proceedings under the Act are sui generis, reference will be made to section 148 of the Act which provides:
Without prejudice to the provisions of section 294(1) of the constitution of the Federal Republic of Nigeria 1999, an election petition and an appeal arising there from under this Act shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or Court [italics supplied].
All these provisions point to the intention of the draftsperson in elevating election matters into special proceedings. In other words, they point to the fact that the Electoral Act evinces a contrary intention to the Interpretation Act.
Having said all these, we now come to the factual situation presented at the lower tribunal. It is common ground that the said election results were declared on April 21, 2007 by form EC8E (1), exhibit “E” [page 26]. That prompted the submission of the first respondent’s counsel that an election petition arising from the said election of April 21, 2007, must be presented any time between 21st April 2007 and 20th day of May, 2007.
In his arithmetical calculation, whereas the period from the 21st day of May to 30th of April, 2007 (both days inclusive) would yield ten days, the period from the 1st of May, 2007 to 21st of May, 2007 (both day inclusive) would yield twenty days. He added up 10 + 21. That gave him the figure: 31.
I must confess that I need neither the mathematical wizardry of Professor Chike Obi nor to the breathtaking genius of Professor Awojobi to know that the above arithmetical calculation is unimpeachable. From all I have said above, the petition should have been presented within thirty days counting from April 21, when from exhibit E, the results were declared. I agree with Omotoso, learned counsel for the first respondent, that the thirty days’ period ended on May 20, 2007. In effect, the lower tribunal was right in striking out the petition which was filed outside the thirty days allowed by section 141 (supra). I, therefore, resolve this issue against the appellant.
ISSUE 2
As shown above, counsel for the appellant argued Issues 1 and 2 together. Having disposed of the question of the applicability of the Interpretation Act and the above High Court Rules while considering the first issue, we shall now concentrate on the question of the applicability of the decision in Yusuf v Obasanjo (supra) to the matter before the lower tribunal. We had summarised the gist of the submissions of the appellant’s counsel on this issue above.
On his part, Omotoso, for the first respondent, took the view that the facts of Yusuf v Obasanjo (supra) are not the same with the facts of this case. He pointed out that in that case, the issue was on the time within which an amendment could be made to a petition whereas in the present case the issue is as to the time within which this petition was presented. He submitted that for a case to serve as a precedent under the doctrine of stare decisis, the facts or legal principles must be similar. In this case, we are faced with the time within which to present a petition, whereas in Yusuf v Obasanjo (supra) the court was concerned with the time for an amendment.
CONSIDERATION OF THE ARGUMENTS
Only recently, this division of the court was saddled with the task of determining what the ratio decidendi in Yusuf v Obasanjo (supra) could be said to be. That was in Kupolati and Anor v Oke and Ors [Appeal No CA/IL/EP/HA/12/2008, unreported judgment delivered on April 3, 2009]. In this appeal, we are, once more, required to determine the same question.
Just as in the earlier case, the appellant herein has put the question: whether the lower tribunal was right in not following the decision in the said Yusuf v Obasanjo (supra).
In concurrence with my learned brother Agube JCA, who wrote the leading judgement in the above appeal, I answered the question in the affirmative. I have no reason, in the present appeal, to depart from the eloquent reasoning on my noble Lord in that case. I, equally, have no justifiable reason for modifying my concurrence in that case. I shall adopt my position in that contribution as my judgment in this issue.
This issue, as I noted in Kupolati and Anor v Oke and Ors (supra), pokes into an aspect of a long-drawn debate in the epistemology of Jurisprudence and Legal Theory. The said debate in the literature of Jurisprudence orbits around the search for the meaning of ratio decidendi.
Somewhat, beneficially, the search has produced very robust and engaging disquisitions which are remarkable not only for the acuity of their premises and rigour of their logic, but also for the allurement of their syllogisms: Paton and Sawyer, “Ratio Decidendi and Obiter Dictum in Appellate Courts” (1947) 63 LQR 461, 481; Goodhart, Essays in Jurisprudence and the Common Law chapter I; Glanville Williams, Learning the Law 71; Dias and Hughes, Jurisprudence 74; Lord Lloyd of Hampstead, Introduction to Jurisprudence 375; C. K. Allen, Law in the Making (seventh edition) 259-260; Hood Phillips, A First Book of English Law (sixth edition) 202-203; Salmond, Jurisprudence 223, cited in P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd, 1984) 208; Rupert Cross, “The Ratio” in 20 MLR 124 – 126; A. G. Karibi-Whyte, “The Tyranny of Judicial Precedents”, in (1990) Vol.3 No.1 Cal. LJ; Odiase v Agho (1972) 1 All NLR 170, 176; Savanah Bank of Nigeria Ltd v P.A.S.T.A. Ltd (1987) 1 SC 198; 278 – 279; N.A.B Ltd v B. Eng (Nig) Ltd (1995) 8 NWLR (Pt 413) etc.
Although that should not delay us here, it is clear from the approach of the Supreme Court to the meaning of ratio decidendi that Professor A.V. Dicey could not have been correct when he classified Jurisprudence as “a word which stinks in the nostrils of a practising barrister” see, Curzon, Jurisprudence, (London: Macdonald and Evans, 1979) 13. As the effervescent question thrown up in the appellant’s second issue has demonstrated, Jurisprudence is not as abstruse as it is often presented. Surely, it is a living subject which permeates the entire gamut of our corpus juris and actually shapes, and will continue to shape, legal reasoning in Nigeria.
Against this background, I take the humble view that to be able to ascertain the ratio decidendi in Yusuf v Obasanjo, a decision which the appellant claimed the lower tribunal did not follow, it may not be out of place to first explore its meaning.
Now, the term ratio decidendi [plural: rationes decidendi] has not lent itself to a satisfactory definition, C. K. Allen, Law in the Making (supra) 259-260. It is not surprising, therefore, that the definitions proffered by Professors Hood Phillips and Karl Llewellyn have been subjected to scathing strictures. For Hood Phillips, “ratio is the reason for the decision or the principle of law on which the decision was based”, see, Hood Phillips, A First Book of English Law (supra) 202-203. Professor Karl Llewellyn argues that ratio decidendi is ”prima facie the rule of the case, since it is the ground upon which the court chose to rest its decision”, quoted in P.U. Umoh, Precedent in Nigerian Courts (supra) 207.
Professor Goodhart has punctured these definitions. In his Essays in Jurisprudence and the Common Law (supra), the distinguished jurisprudent contended that the ratio decidendi is neither the reason for the decision nor the principle of the law in the judgment.
Ironically, Goodhart’s definition of the term, which Professor Glanville Williams adapted, has received further qualification. Professor Glanville Williams, adapting Goodhart’s definition had presented the matter thus: “the ratio decidendi of a case can be defined as the material facts of the case plus the decision thereon”, Glanville Williams, Learning the Law (supra) 71, cited in P. U. Umoh, Precedent in Nigerian Courts (supra) 207. In their authoritative work, Jurisprudence, (supra) page 74, Dias and Hughes pointed out that:
Goodhart’s theory implies that it is the deciding Judge who decides what are the material facts and that these can be discovered by a perusal of the judgment.
Lord Lloyd of Hampstead aligns himself with this observation of the erudite jurisprudents, Lloyd, Introduction to Jurisprudence (supra) page 375.
This may well be so! However, I must hasten to observe that the above criticisms have no utilitarian value for us in Nigeria since we are bound by the approach adopted by the Supreme Court to this question. That approach would appear to be a blending of the views of Hood Phillips and the definition of Goodhart, as adapted by Glanville Williams. Karibi-Whyte JSC in Savanah Bank of Nigeria Ltd v P.A.S.T.A. Ltd (1987) 1 SC 198, 278- 279, for example, offered the following invaluable guides:
In determining the ratio decidendi of a case, it is safer to consider the claim before the court and the issue which the court was called upon to decide. Thus, the reasons given by the court for deciding the claim before it is the ratio decidendi which the court is obliged to follow in subsequent cases and will not lightly depart from unless to avoid the perpetuation of errors … Accordingly, opinions in the judgment which are not part of the material facts even where relevant to the determination of the case do not constitute part of the ratio decidendi and are not binding … [italics for emphasis]
As noted earlier, for Professor Hood Phillips, “ratio is the reason for the decision or the principle of law on which the decision was based”. In N.A.B Ltd v B. Eng (Nig) Ltd (1995) 8 NWLR (Pt 413), the Supreme Court endorsed the definition when it held that:
” It is the principle of law upon which a particular case is decided that is binding. And the principle is called the ratio decidendi … ”
The key to the resolution of the question which the appellants posed in their second issue must, therefore, be located in the context of the above guidelines. In the Savanah Bank case (supra), for example, Karibi-Whyte JSC enjoined us to “consider the claim before the court and the issue which the court was called upon to decide”.
So, what was the issue in Yusuf v Obasanjo? In the Law Reports [(2003) 16 NWLR (pt 847) at page 596 paragraph D; (2003) 50 WRN 1, 15 paragraph 5], Tobi JSC delineated the contours of the issues in that case thus:
“It appears to me that all the issues formulated by the parties are basically the same as they zero on the amendments sought by the appellants and the subsequent decision of the tribunal”. [italics supplied].
To put the issue before the court beyond any doubt, the erudite and cerebral Justice of the Supreme Court, indeed, adopted the pedagogical approach of a practised and veteran teacher [in passing, I must note that His Lordship distinguished himself in this regard as he took a professorial chair in Law]. Hear him:
The cynosure of this appeal is paragraph 14 of the first schedule to the Electoral Act, 2002. 11is the first line. It is also the bottom line. The appeal clearly zeros on the construction this Court will place on it in view of the centrality and importance of the paragraph, [italics supplied] [pages 605- 606]
His Lordship’s choice of the word “cynosure” is instructive. The New Webster’s Dictionary of the English Language (International Edition) (New York: Lexicon International Publishers Guild Group, 1995) 239 defines the word to mean “a strong centre of interest and attention”.
It was as if the learned Law Lord anticipated the divergent interpretations which His leading judgment and the erudite contributions of his eminently distinguished brethren in Yusuf v Obasanjo would elicit subsequently. That probably dictated his choice of the word “cynosure” to demonstrate that the question of the interpretation of paragraph 14 of the first Schedule to the Electoral Act 2002 was the centre of interest and attention of the Supreme Court in that case.
Put simply, therefore, the pivot of the matter before the court was the issue of limitation of time for amendment of election petitions [as contained in the First Schedule to the Electoral Act, 2002, paragraph 14 (1) and (2), in pari materia with paragraph 14 (1) and (2) of the First Schedule to the Electoral Act, 2006]. In effect, in ascertaining the ratio decidendi in Yusuf v Obasanjo (supra), the search must be delimited to that issue upon which Tobi JSC resolved the appeal.
Before then, however, one other point must be addressed. I shall, most respectfully, invite Wali JSC to take the point. In Idise and Ors v Williams International Ltd (1995) 1 NWLR (pt 370) 142, 150, His Lordship explained that:
Issues for determination based on a ground of appeal from a concurring judgement which is different from the leading judgement can only be obiter dicta … [a] concurring judgement … which differs from the lead judgement.. .[amounts] to obiter dicta [and] are not valid…
In Abacha and Ors v Fawehinmi (2000) All NLR 351, Achike JSC, in obvious elaboration of the above terse statement of the law, posed the question: “One may then ask: what is the judgment of the court?” The distinguished Justice of the Supreme Court answered the question thus:
Where a single Judge presides, the situation does not admit of any difficulty; the judgment of that court is what may be discerned as the ratio decidendi or rationes decidendi of that case in contrast to the passing remarks, otherwise referred to as obiter dictum or obiter dicta made by the court in the course of preparing the judgment.
His Lordship continued:
The problem … arises when three Justices … or five Justices … preside over a case or an appeal wherein one of the Justices is assigned the responsibility to write the leading judgment and others, under the mandatory provision of the Constitution, are obliged to render either their concurring or dissenting judgments. In such a situation, it is the leading judgment that is, in legal circles, regarded as the judgment of the court.
The point of jurisprudential interest and of considerable interest in this appeal is the relationship of the bindingness of the ratio decidendi or rationes decidendi contained in the leading judgment on the one hand, and the other concurring judgments, on the other hand. Are they at par or are some superior to others?
The jurisprudence and practice of law in this country appears to be tolerably clear: it is the ratio or the rationale contained in the leading judgment that constitutes or constitute the authority for which the case stands. All other expressions contained in the concurring judgments, particularly those not addressed in the leading judgment are obiter dictum or dicta. [italics supplied]
Although Achike JSC made this postulation in his dissenting judgment in the above case, His Lordship’s opinion represents the correct position of the Law in Nigeria for as Karibi-Whyte JSC held in Savannah Bank (supra) at pages 278-279:
“opinions in the judgment which are not part of the material facts even where relevant to the determination of the case do not constitute part of the ratio decidendi and are not binding … ”
The position, therefore, is that it is the judgement of Tobi JSC on the pivotal issue of limitation of time for amendment of election petitions [as contained in the First Schedule to the Electoral Act, 2002] that constitutes the judgment of the Supreme Court in Yusuf v Obasanjo (supra).
His said leading judgement spans pages 12 – 37 [2003] 50 WRN]. His Lordship made reference to the issue of “presentation” in three places only, namely, pages 23; 25 and 26. Yet, all the three references were tied to the interpretation of paragraph.14 (2). An intimate reading of those pages will reveal that His Lordship was not concerned with the question of the commencement date relevant for the determination of the limitation period for the presentation of an election petition. Indeed, he could not have been concerned with that question since he had observed that:
“all the issues formulated by the parties are basically the same as they zero on the amendments sought by the appellants and the subsequent decision of the tribunal” [2003 50 WRN at 15].
We now invite attention to the relevant pages to demonstrate how His Lordship resolved the issue which he aptly described as the “cynosure of the appeal”. At page 23, Tobi JSC said:
The most important provision for the purpose of this appeal is paragraph 14(2). The sub-paragraph makes a cross reference to a non-existent section 154. It is non-existent because the Act stops at section 153. The lower court rightly held that section 154 referred to in paragraph 14 (2) should read section 132 as it that section that provides for time within which an election petition shall be presented. [italics supplied]
Having identified the embarrassing lacuna in paragraph 14(2) which made a cross reference to a non-existent section 154, he reasoned that only recourse to section 132 could make up the hiatus in the said paragraph [that is, 14 (2)].
That was how section 132 came to feature in the judgment. He presented it thus:
The courts should have found themselves in a helpless or hopeless situation if there was no section 132 to bail them out in the interpretation of paragraph 14 (2) …. A joint interpretation of paragraph 14 (2) of the first Schedule [ J and section 132 thereof, places restrictions on the part of a petitioner in the amendment of his petition …. The meat of it all is that substantial amendments will not be allowed, after the expiration of the period of thirty days, following the presentation of the petition [italics supplied, see 2003 WRN at page 24]
After making up this lacuna in paragraph 14 (2) by reading the said paragraph in conjunction with section 132, His Lordship was then in a position to tackle the issue of the limitation period for the amendment of petitions. He declared:
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 the petition was filed on 21st May, 2003 … Reducing that arithmetical detail, 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 declaration of the election [italics supplied]
Finally, at page 26, His Lordship made reference to the words “filed” and “presented” against the background of the comparative provisions in paragraph 14(2) dealing with amendments read in conjunction with section 132 which he graciously read into the paragraph:
Section 132 uses the word ‘presented’. In my humble view, the word in the context means ‘filed’. Paragraph 14 (2) (a) uses the same word, but in the continuous sense of ‘presenting’. In other words, section 132 provides that an election petition under the Act shall be filed within thirty days from the date the result of the result of the election is declared. Similar interpretation arises in respect of the ‘presenting’ in paragraph 14(2)(a) of the first Schedule to the Act
I have deliberately undertaken this extensive analysis of the approach of His Lordship Tobi JSC in the leading judgment in the said case to underscore the importance of the issue he addressed in the judgement, namely, the issue of the limitation period for the amendment of petitions in paragraph 14(2) (a) which he graphically described not only as “the cynosure of the appeal”, but also as the “first line … and the bottom line” [3003 50 WRN page 22].
Kutigi JSC (as he then was) also circumscribed his contribution to this narrow issue of the limitation of time for amendment. At page 38 [2003 50WRN], he agreed:
… with the tribunal that Section 132 read with paragraph 14(2) of the first schedule to the Act means that substantial amendments will not be allowed after the expiration of the period of thirty (30) days .from the date the result of the election is declared. But I have stated above that both the petition and the motion to amend the petition were filed within time [italics mine].
Kastina-Alu JSC, also confined himself to the issue of the time for bringing an application for amendment by virtue of paragraph 14 (2) [2003 50 WRN at 42].
Interestingly, Uwaifo JSC acknowledged that section 132 was cited in connection with the question of the main issue of amendment. At page 46, His Lordship observed that:
The court below was duly addressed… on section 132 of the Act and paragraph 14 (2) of the first schedule thereto in connection with the amendment made [italics supplied]
Still on the same page 46, His Lordship, after citing section 22 of the Supreme Court Act which vests the court with jurisdiction to make orders and take decisions in appropriate circumstances, explained that it was in the light of the said section that the court:
… decided to resolve the issue [of joinder] and also to consider what aspect of the amendments sought ought to be allowed in view of the decision reached on the meaning of paragraph 14(2) [supra] [italics supplied]
Admittedly, His Lordship made pronouncements on the question of computation of time, [pages 43 – 44]. However, this must not be taken outside the canvass of the main issue the court was called upon to consider, that is, the issue of limitation of time for amendment. To show that His Lordship’s reference to the question of computation of time stipulated in section 132 was tied to the issue of the limitation of time for amendment before the court, we show quote him in extenso:
I have already stated that the necessary papers containing the amendments made to the petition were before the tribunal within the 30 days’ time limited by section 132 of the Act for presenting an election petition. What then does paragraph 14 (2) (a) [supra] connote? ..
It seems to me necessary that in the construction of [the said paragraph], the question should be asked: who is it that is expected to make an amendment to an election petition? I think it is the person who presented the election petition, i.e. the petitioner. He makes the amendment by introducing all facts or alterations he considers proper or necessary. He does so by indicating this in the court process which he files in court for the purpose of the amendment he has made.
All that the said paragraph 14(2) (a) requires him is to do so, that is to say, make the amendment within the time limited by section 132 of the Act for presenting an election petition. It is the court or tribunal that makes the amendment. Its function is to consider the amendment made within time to the petition. In the course of doing so, it is up to the tribunal to grant or refuse the amendment so made by the petitioner. That is when it brings to bear on the motion its judicial power to consider the merits of the amendment. [page 45 italics supplied]
Edozie JSC’s contribution also points to the fact that the court was, indeed, only confronted with the issue of amendment. He introduced his contribution thus:
This is an interlocutory appeal … in respect of an application on notice by the petitioners for the amendment of their presidential election petition [page 47 italics supplied]
Like the leading judgment, His Lordship considered the lone issue in the appellants’ brief “adequate for the determination of the appeal”.
He continued:
“it seems to me that the main grouse of the appellants is the refusal of the lower court to grant the amendment … ” [italics supplied page 48].
True, indeed, his reference to section 132 was in relation to the lacuna in paragraph 14 (2) which made a cross reference to a non-existent section 154 [page 50]. What is more, the isolated statement he made on computation of time in the said section 132 was still in relation to the main issue of the limitation of time for amendment. After reckoning the thirty days’ limitation period stipulated in section 132, Edozie ISC located the said limitation period in the context of the issue of amendment:
It follows that the motion for amendment filed on 21st April, 2003 was within the stipulated period. Had the motion been taken and considered on the date it was filed … the reason given by the court below for refusal to consider the amendment for joinder could not have arisen. Since the appellants filed their application for amendment within time, they ought not to be penalized for the hearing of the application outside the 30 days period, a matter which is entirely at the discretion of the court. I am, therefore, of the view that the court below was in error to have refused to consider on its merits the appellants’ amendment for joinder. ..on the ground that it was substantial and was caught by the limitation period
With profound respect, therefore, to the learned counsel for the appellant, he read the expositions of Uwaifo and Edozie JJSC on section 132 [in pari materia with section 141 of the Electoral Act, 2006] out of the context in which their Lordships made their illuminating contributions to the narrow issue of the limitation of time for amendment in paragraph 14(2)(a) supplemented with section 132 which was addressed in Tobi JSC’s judgment.
In any event, as already noted above, the law is as stated by Karibi-Whyte JSC in Savannah Bank (supra) at pages 278-279: “opinions in the judgement which are not part of the material facts even where relevant to the determination of the case do not constitute part of the ratio decidendi and are not binding … ”
In all, since Tobi JSC’s judgement was concerned only with the issue of the limitation of time for amendments, I do not see how the lower tribunal could, justifiably, be pilloried for not anchoring its judgement on that case. The decision in the case [that is, Yusuf v Obasanjo] was inapplicable to the issue before the lower tribunal. After all, the ratio decidendi of cases eventuates from their material facts. In the words of Tobi JSC in Onyia v State (2009) All FWLR (pt 450) 625, 640: “cases are decided on their facts and ratio decidendi is based on the facts of the case before the court. A ratio cannot be determined outside the facts of the case”.
I, therefore, find no merit in the complaint of the appellant in this regard. I, equally, resolve this issue against him.
ISSUE 3
The appellant framed his third issue in the alternative in the event of the collapse of the first and second issues. That issue was formulated thus:
Whether the Honourable Tribunal was not wrong by His Lordships’ finding that the petition was filed one day out of time stipulated by Section 141 Electoral Act 2006 when the last day falls on Sunday
When this matter came up for hearing on February 25, 2009, this court suo motu raised the issue of the applicability of section 6 of the Public Holidays’ Act Cap P40, Laws of the Federation, 2004. The court granted the parties time to react to the issue which it framed thus:
Whether in view of section 6 [supra] it would be proper to discount Sunday as a working day for the purpose of filing election petition processes.
Expectedly, in his further address on this point, the appellant’s counsel submitted that Saturdays and Sundays are dies non juridicus. He took the view that by the provision of section 6 (supra), the lower tribunal or its registry could only perform their duties on Saturdays and Sundays if and only if there was a directive by the President of the Court of Appeal to that effect.
According to him, there is nothing in the Election Tribunal and Court Practice Directions issued by the President of the Court tending to suggest that Sunday is a working day such that the Secretary of the lower tribunal could carry on the activities of the registry on Sunday. Counsel urged the court to take judicial notice of section IS (5) of the Interpretation Act in considering Sunday a public holiday.
Bamidele Omotoso, learned counsel for the first respondent, observed that under the Schedule to the Public Holidays’ Act, Sunday is not listed as a public holiday. Indeed, section 1 specifically stipulates that the days in the Schedule shall be kept as public holidays in Nigeria. He, therefore, took the view that Sunday is not a public holiday under the Act.
He pointed out that the Interpretation Act is not intended to apply to any enactment with a contrary intention. As such, he maintained that Sunday cannot be excluded in the computation of time of the thirty days for the presentation of election petitions as stipulated by section 141 of the Electoral Act, citing the special character of election petitions proceedings as proceedings that are sui generis.
CONSIDERATION OF THE ARGUMENTS
In the Latin days of the Law, days exempt from court proceedings were referred to as dies non juridicus, for convenience often abbreviated to dies non. Such days were almost always public holidays.
In Nigeria, there is an enactment that specifies days to be observed as public holidays. It is known as the Public Holidays Act. It is in Chapter P40, Laws of the Federation of Nigeria, 2004. It is a short enactment of only seven sections and a schedule.
In all, the Act specifically itemises ten such days to be so observed as public holidays. They are: New Year’s Day; Good Friday; Easter Monday; Workers’ Day (1st May); Democracy Day (29th May); National Day (1st October); Christmas Day; such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of Id el Fitr; such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of Id-el Kabir and such day as the Minister may declare to be a public holiday in celebration of the birthday of the Prophet Muhammed (Id el Maulud), see, section 1 and the Schedule. Under the Act, those days are work-free days, see, section 2(3).
Now, counsel for the appellant had contended in paragraph 2.02 of his address dated February 26, 2009, that “Saturday, Sunday or public holiday are non dies, they are not working days in Nigeria within the realm of the Public Service”.
With due respect, not only is this contention unsupportable having regard to the above provision, pursuant to section 6 of the Act if it is in the interest of the public service or if the convenience of the public demands it, public servants and public officers can even work on Saturdays, Sundays and Public Holidays. Section 6 provides thus:
(1) Notwithstanding any of the foregoing provisions of this Act, the Permanent Secretary of a Ministry or the head of any Government Department may, unless otherwise ordered by the appropriate authority, if the interest of the public service or the convenience of the public demand it, require all or any of the persons serving in his Ministry or Department, as the case may be, to perform on a Saturday, Sunday or public holiday such of their duties as he may deem necessary
Under section 6 (3), references to Department include references to any court or tribunal set up pursuant to any enactment.
Appellant’s counsel in reaction to this provision took the view that this section cannot be invoked in the determination of this issue. According to him, the tribunal or its registry can only perform their duties on a Saturday, Sunday or public holiday when the President of the Court of Appeal issues a directive to that effect.
From all indications, this submission even overlooks one major fact. Since electoral justice may be compared to the vein which conveys the life-blood that sustains the heartbeat of our democratic experiment, Orubu v NEC (1988) 5 NWLR (pt 94) 323, 347, public interest demands that election petitions should be dealt with expeditiously. In his anxiety to satiate the public interest, the law maker, in paragraph 25(2) of the first Schedule to the Electoral Act, even provides that hearing of petitions may be “continued on a Sunday or on a public Holiday if circumstances dictate”. Thus, the lower tribunal did not require any further administrative directives from the President of this Court to continue with the business of the tribunal if the circumstances dictated that it should do so.
Surprisingly, learned counsel found no conflict between section 15(5) of the Interpretation Act, Order 23 Rule 1 of the above High Court Rules and the Public Holidays Act. This is rather strange. In the first place, as shown above where there are general provisions on any matter and specific provisions on that same matter , the applicable rule of interpretation should be that expressed in the old Latin maxim, generalibus specialia derogant [special provisions derogate from general provisions], see, Schroder v Major (1989) 2 SCNJ 210. In this case, the Public Holidays Act is the enactment that specifically deals with the subject of public holidays in Nigeria. The draftsperson, in his wisdom, itemised the days to be observed as public holidays. This, we have pointed out before.
Above all, counsel’s reliance on the Interpretation Act is even weak-kneed: it elides any consideration of the import of the exclusionary clause in the Interpretation Act. Again, as we have said before now: section 1 of the Interpretation Act (supra) embodies an exclusionary clause. By that exclusionary clause, the draftsperson simply put it beyond any doubt that the Interpretation Act would be inapplicable to all other enactments of the National Assembly which evince intentions contrary to the Act. Put differently, the Interpretation Act excludes other enactments which evince contrary intentions from its ambit and application.
The short answer to this issue, therefore, is that under section 1 and the Schedule to the Public Holidays Act (supra), Sunday is not listed as one of the days to be observed as a public holiday. In the computation of the time for the presentation of an election petition under section 141 of the Electoral Act (supra), Sunday will, therefore, not be reckoned with as a public holiday and cannot be discounted in the said computation of time, Ugbane v Hussain (2009) 5 NWLR (pt.1135) 530, 544.
This settles this issue. It also settles this appeal. In all, I find no merit in this appeal. I, hereby, enter an order dismissing it. Parties are to bear their costs.
JUMMAI HANNATU SANKEY, J.C.A: I agree.
IGNATIUS IGWE AGUBE, J.C.A: I agree.
