3PLR – ADETUNJI AKANDE V. I.N.E.C & ORS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ADETUNJI AKANDE

V.

I.N.E.C & ORS

 

IN THE COURT OF APPEAL OF NIGERIA

ON TUESDAY, THE 19TH DAY OF APRIL, 2011

CA/I/EPT/NA/HR/5/2010

3PLR/2011/4 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

SIDI DAUDA BAGE, JCA

MODUPE FASANMI, JCA

JOSEPH SHAGBAOR IKYEGH, JCA

 

BETWEEN

ADETUNJI AKANDE – Appellant(s)

 

AND

I.N.E.C & 6 ORS – Respondent(s)

 

REPRESENTATION

Akeem Agbaje

Messrs. Bola Akinbobola – For Appellant

 

AND

Mr. K. Faokunla

Mr. W.A. Olajide – For Respondent

 

MAIN ISSUES

1. WORDS AND PHRASES – “SECRETARY”: Definition of “secretary” according to the First Schedule to the Electoral Act

”The “Secretary” of the Tribunal was defined in the interpretation section of the First Schedule to the Act to include the Registrar of the Court of Appeal in the following terms: “The secretary of an Election Tribunal established by the constitution or this Act and shall include the Registrar of the Court of Appeal or any officer or clerk acting for him.” Per Bage, J.C.A. (P. 30, Paras. D-F)

2. ELECTION PETITIONS – DUTY OF A PETITIONER: Duty of a petitioner that intends to institute an action against the result of an election

”The Court of Appeal followed the trend established by the Supreme Court in Olaiya Kupolati and anor v. Olusola Oke (2009) All FWLR (pt.486) 1858 at 1862, ratio 2 on the duty of a petitioner intending to challenge the result of an election to do so timeously and diligently. Also See:- Adisa v. Oyinlola (2000) 10 NWLR (pt.674) 116 at 202. Let me add only for the sake of emphasis that this court followed the principle established by Ahmed v. Kassim (supra) in Malah v. Kachala (1999) 3 NWLR (pt. 594) 309 at 313 Paragraph C thereof (referred). The court held as follows:- “It would appear that the 1st Respondent encountered administrative problems in the presentation of his petition. However, administrative difficulties cannot override the express provision of the law.” Per Bage, J.C.A. (P. 33, Paras. C-G)

 

3. PRACTICE AND PROCEDURE – COURT – ELECTION TRIBUNAL: Special nature, jurisdiction of an election tribunal and its distinction from civil proceedings

”An Election Petition is heard and determined by an appropriate Election Tribunal as usually provided by the Constitution. In the 1999 Constitution, such provision is made under Section 285 and the sixth schedule to the constitution. The procedure is largely governed by a law made specially to regulate the proceedings. The jurisdiction of an Election Tribunal to deal with Election Petition is of a very special nature different from that in an ordinary civil case. It is plain that the proceedings are special for which special provisions are made under the constitution. Election Petitions are distinct from the ordinary civil proceedings. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. See:-Benson V. Allison (1955-56) WRNLR 58; Emenue v. Nkerenwe (7966) 1 All NLR 63; Ige v. Olunloyo (1984) 1 SCNLR 158 which was decided on Application to amend the prayer sought in a petition, which Application was brought out after the time allowed for filing the petition. So an Election Petition is neither seen as civil proceeding in the ordinary sense nor, of course a criminal proceeding, it can be regarded as a proceeding sui generis. See:-Buhari v. Yusuf (2003) 6 SC (pt.11) 156.” Per Bage, J.C.A. (Pp. 30-31, Paras. G-F)

 

4. PRACTICE AND PROCEDURE – FILING OF COURT PROCESS: The issue of time to complete the filing of all processes relating to the hearing and determination of an election petition

”In Balogun v. Obumosu and Others (1999) 2 NWLR (Pt.592) 590 at 597, for instance, this Court dealing with a similar situation held per Pats – Acholonu, J.C.A., (later J.S.C, but now of blessed memory) that: “The issue of time to complete the filing of all processes relating to the hearing and determination of an election petition 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 consist the time of doing a particular act within a time frame work. In other words, it is the intention of the legislators that parties stick strictly to the times stated in the Decree. The court would not aid anyone who decided to sleep only to wake up when it is too late” Per Ikyegh, J.C.A (P. 35, paras. B-F)

 

5. ELECTION PETITIONS – FILING OUT OF TIME: Effect of filing an election petition out of time at the Election Tribunal

“Since the petitioner was out of time in filing the petition, the petition was incompetent and robbed the Tribunal of the jurisdiction to entertain it on the merits. See the case of Mrs. Patience Chibueze v. Ibeddiro and Others (1999) 3 NWLR (Pt. 594) 206.” Per Ikyegh, J.C.A. (Pp.35-36, Paras.F-A)

 

6. PRACTICE AND PROCEDURE – COURT – JURISDICTION: Conditions precedent for a court to assume jurisdiction on any proceedings

”It is trite that jurisdiction is the threshold of any decision of a court or tribunal, any action done or proceeded upon by a court or Tribunal as the case may be without jurisdiction will be null, void, and of no effect, no matter how well conducted. A court can only be competent if among other things all conditions precedent for its having jurisdiction are fulfilled. See:- Madukolu and Ors v. Nkemdilimi (1962) 1 All NLR 587 at 594, Bairamian F.J. (as he then was) stated the principles which have been accepted in successive cases. “A court is competent” he said”, when: – (1) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another and (2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and (3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.” See also: – Tukur v. Government of Gongola State (1989) 9 S.C. 1; Nigeria Deposit Insurance Corp, v. Okem Enterprises Ltd. (2004) 10 NWLR (pt. 880) 107; Ben Obi Nwabueze v. Justice Obi Okoye (1988) 4 NWLR (pt. 97) 644; Bronix Motors v. Wema Bank (1983) All NLR 272; Federal Republic of Nigeria v. Ifegwu (2003) 8 MJSC 36; Amerian Inter, Insurance Co. v. Ceekay Traders Ltd. (7987) 7 N.S.C.C. 132; Kalango and Ors v. Dokubo & Ors (2003) 15 WRN 32; Wema Bank v. C.L.I. Ltd (2002) 34 WRN 73” Per Bage, J.C.A. (Pp. 26-28, Paras. G-A)

 

7. INTERPRETATION OF STATUTE – RULE OF INTERPRETATION OF STATUTE: Whether the meaning and intention of Legislation must be collected from the plain and unambiguous expressions used therein

“In other words the tribunal means what is said that no order shall be made after the stipulated period. See:- Mallam M.K. Ahmed v. Alhaji Haruna Kassim (1958) FSC 51 at 52 wherein it was stated:- “The underlying principle is that the meaning and intention of Legislation must be collected from the plain and unambiguous expressions used there in rather than from any notions which may be entertained as to what is just or expedient. If a petitioner chooses to delay commencing his proceedings until the last moment he has only himself to blame if he finds himself out of time, and if a judge is not available at the court in whose Registry the motion is taken before the nearest available judge having jurisdiction to deal with the matter.” It is to be stated that the case Mallam M.K. Ahmed v. Alhaji Haruna Kassim (supra) above is in all fours with the present Appeal.” Per Bage, J.C.A. (P. 32, Paras. C-G)

 

MAIN JUDGMENT

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Governorship and Legislative Houses Election Tribunal, Ibadan, Oyo State (herein after referred to as the tribunal) delivered on 17th June 2010, striking out the Appellant’s petition for want of jurisdiction.

The Election challenged was a bye-election conducted for the Federal House of Representatives for Ibadan South West/Ibadan North West Federal Constituency by the 1st Respondent. At the conclusion of the election the 1st, 2nd, 4th and 5th Respondents declared the 3rd respondent who was the candidate of the People Democratic Party (PDP) as the winner. The Appellant was dissatisfied with the outcome of the election and filed a petition dated 14th November, 2009 before the tribunal seeking to be returned as the winner of the election or alternatively seeking the nullification of the said election for substantial non-compliance with provisions of the Electoral Act.

After due consideration of the various applications and the responses to them, the Tribunal at page 237 of the records concluded as follows:

“From all what has been said herein before we find and hold that the petition filed on 14/12/2009 was filed 31 days from the date of declaration of the result of the bye-election held 14/11/2009. The result is that there was no compliance with the provisions of Section 141 of the Act, thereby rendering the petition incompetent and liable to be struck out. Accordingly, Petition No. OY/NA/EPT/HR/01/2010 is hereby struck out for want of jurisdiction”.

 

The Appellant was dissatisfied with the decision and filed a notice of appeal dated 17th June, 2010 containing two grounds of appeal.
In the Appellant brief of argument 23/12/10 filed same date, but deemed filed on the 28/2/11, the sole issue formulated for determination is as follows:-

“Whether when an Election Petition Tribunal was not set up prior to the conduct of an election as required under Section 140 (3) of the Electoral Act 2006, The Election Tribunal can ignore the rules of the court in which the petition was presented and decided authorities applicable to such rules in the computation of time within which the petition must be filed”.

The 1st, 2nd, 4th and 5th Respondents in their joint brief of argument dated 24/1/11 and filed on the 25/1/11 also formulated a sole issue for determination as follows: –

“Whether the petitioner/Appellant filed his petition outside the 30 (thirty) days period prescribed by section 141 of the Electoral Act, 2006.”

The 3rd Respondent in his brief of argument dated and filed the 25/1/11 also formulated a sole issue for determination viz-

“Whether or not in the circumstances of this case, the Tribunal was right in striking out the petition of the Appellant”.

 

By a motion on Notice dated and filed the 7/3/11 the appellant had sought for an order of this court that this appeal be heard on only the briefs of Appellant, 1st, 2nd, 4th and 5th Respondents, and the 3rd Respondent. The 6th and 7th Respondents having failed to file their respective Briefs in the Appeal. The said motion was moved, and granted by this court on the 31/3/11.

In arguing the appeal based on the sole issue formulated for determination, learned counsel to the Appellant/petitioner listed out the argument of the Appellant at the Tribunal and then highlighted the reason by the Tribunal in its judgment, and submitted that the Tribunal failed to appreciate and properly considered the argument of the Appellant before it.

Learned counsel submitted further that where the words used in a statute are clear and unambiguous, the court would adopt the plain meaning of the words used in the statute. The Provisions of paragraph 1 of the 1st schedule to the Electoral Act must be read in line with section 140 (2) (a) and (b) of the Electoral Act which defines a Tribunal and a court and which elections must be presented before a Tribunal and which one must be presented before a court.
Learned Counsel further submitted that, the reliance placed by the Tribunal on the definition in paragraph 1 of the schedule to the Electoral Act 2006, in the interpretation of statute, the schedule is part of the Act, and used in constraining provisions in the body of the Act. The provisions in the schedule will be construed in light of what is enacted in the Act and cannot override body of the statute. See: – Oputeh v. Ischida (1993) 3 NWLR (pt. 279) 34 at 58. Consequently, paragraph 1 of the schedule cannot take away the mandatory separation of a Tribunal and a court provided in section 140 (2) of the main Act. A schedule cannot override the plain words of a statute, because if there is any contradiction between the schedule and the enacting clause, the enacting clause prevails. See:- Awuse V. Odili (2004) All FWLR (pt, 272) 1611. The tribunal was in error to have relied on paragraph 1 of the first schedule to the electoral Act 2006 in support of its decision.

Learned Counsel further submitted that the Tribunal persisted in the error when it held at page 217 of the record of Appeal that Exhibit ‘A’ attached to the counter affidavit of the Appellant that if the petition was ready as at 30/11/2009 why was it not filed at the court of Appeal Registry when the provision of section 140 (1) and (2) makes the court of Appeal registry an incompetent Tribunal.
Learned Counsel further submitted that, the reason why the Tribunal fell into this error, is that it treated section 141 as an independent provision that was not contingent on the provisions of section 140 of the Electoral Act which is not correct. Section 140 (1) creates the right to present a petition against the declared result it cannot exist without the provision of section 140 (1) i.e. that if section 140 (1) did not create a right to challenge the declaration of the result there would be need to compute time or provide for time within which an Election petition must be presented. The Tribunal clearly did not avert its mind to this obvious logical position of the law.

Learned Counsel further submitted that, the Tribunal went further to hold that court of Appeal decisions on the computation of time for presenting a petition under section 141 of the Electoral Act; Sunday is not taken into account. The tribunal did not give due consideration to the argument of the Appellant before it. The Tribunal observed that “Perhaps Mr. Agbaje, being mindful of this did not direct much on this issue in his submissions” whereas the decided authorities were forcefully argued under a separate heading. See: – pages 177-180 of the record of Appeal.

Learned Counsel further submitted that, the Preliminary objection of the Respondent/Applicant in computing the time within which a petition must be presented, time starts to run from the day of the result was declared and that would mean that the 30th day is Sunday the 13th of December 2009. However, there are judgments that came to contrary decisions. See: – Daramola V. Aribisala (supra) Nweje JCA, made an attempt to provide an exhaustive consideration to the interpretation of section 141 of the Electoral Act.

Learned Counsel further submitted that a number were determined within a different time span (1999) and 2009) but they largely dealt with the similar provisions. As stated above trying to declare a Universal interpretation of section 141 is practically impossible and this was clearly demonstrated in the judgments of Salami J.C.A. (as he then was) now P.C.A. in the following cases Atipekbe V. Joe (1999) 6 NWLR (pt. 607) 428; Iyirhiaro V. Usoh (1999) 4 NWLR (Pt. 597) 41 at 51; Alatasha v. Asin (1999) 5 NWLR (pt 601) 32 at 44.

Learned Counsel further submitted that, what is clear is that there is no Unanimity in the mode of computation or whether Sunday is a public holiday. See: – also Action Congress v. Jang (2009) All FWLR (pt.467) 156 at 183. Given the conflicting state of decided authorities by court of Co-ordinate jurisdiction, it is not settled or clear cut, whether the date of the declaration of the result or Sunday’s should be included or excluded in the computation of the days within which a petition must be presented. It is settled law that where there are conflicting judgments by superior courts with equal jurisdiction over the subject matter in dispute and of binding authority on a lower court, a lower court is free to chose which of the decisions to follow. See: – Adegoke Motors v. Odesanya (1988) 2 NWLR (pt. 74)108 at 121.

Learned Counsel submitted further that, while the initial and obvious temptation will be to invite this court to rely and adopt on decisions that excluded the date the result was declared and Sunday if it falls on the last day, the petitioner would rather emphasis the fact that these decisions were reached given the peculiar facts of those cases. This is not to suggest that the fact would prevail over the clear provisions of statute, but that the entire provisions of the statute would be taken into consideration in applying a particular provision to an existing state of facts.

Learned Counsel further submitted that, the necessary conclusion to be reached from the decided authorities is that the interpretation will be dependent on the facts of each case. If section 140 (3) of the Electoral Act has been complied with, and a Tribunal had been set up 14 days before the Election, it becomes arguable whether only section 141 will be considered in isolation interpreting the intendment of the statue. But where, as in this case the Tribunal was not established and neither was a registry created. Recourse must be had to other sections of the Electoral Act (i.e. 140 (1) (2) (a) and (3) and paragraph 1 and 3 of the first schedule and the applicable rules of the registry at which the petition was presented. On courts taken facts of each case into consideration in interpreting statute and in applying previous decisions on interpretation of statute. See: – Kupolati v. Oke (2009) All FWLR (pt. 486) 1858.

Learned Counsel submitted further that, this is not a situation in which the petitioner waited till the last day to file his petition. In paragraph 6 of the counter-affidavit to the Preliminary objection it was deposed that there was no Tribunal established prior to the conduct of the election and the petitioners political party All Nigeria People’s Party (ANPP) had to write letter Exhibit A. The Electoral Act 2006 has no provision to provide for a situation in which section 140 (3) has not been complied with. As stated above this is a lacuna in the Electoral Act 2006.

Learned Counsel, further submitted that, the issue before the Tribunal was not whether the meaning of section 141 was clear, but whether given the provisions of section 140 (1), (2) and (3) there was a competent Tribunal registry at which the Appellant could have presented his petition, the answer clearly is no.
Learned counsel further submitted that, since there was no competent Tribunal in existence at that time and a right has been created there had to be a remedy. That there was no Tribunal in existence and there were only two courts established under the constitution, the High Court and Court of Appeal and the High Court was on strike. The Court of Appeal provided the only option available. That, since these regular courts have their own rules which did not have a provision similar to paragraph 24 of the 1st schedule of the Electoral Act 2006 that provided for the registry to open on Saturday and Sunday, Saturday and Sunday must be excluded in the computation of section 141. In effect, all steps taken and processes filed by the Appellant prior to the establishment of the Tribunal must be governed by the rules of the Court in which it was filed.
Learned Counsel submitted further that, section 141 did not expressly state how the within 30 days must be computed. Interpretation of computation of the 30 days provision has been based on paragraph 24 of the 1st schedule of the Electoral Act which provides for hearing from day to day. See: – Kupolati v. Oke (supra); and Onyedebelu V. Mwaneri (2009) All FWLR (pt. 453) 1264 at 1293.

Learned Counsel further submitted that, the rules and procedure of the Election Tribunal can only bind that Tribunal and its registry but not any other court. In Onyedebelu (supra) at page 1294, the court of Appeal recognized that there was a lacunae and held that the entire provision of the statute must considered. The Tribunal inexplicably shied away from doing this and largely read section 141 in isolation.

In reply, learned counsel to the 1st, 2nd, 4th and 5th Respondents submitted that, by paragraph 11 of the petition, the petitioner agreed that the result of the Bye Election was declared on 14th November, 2009 and this fact is not in dispute between the parties and we also refer to paragraph 5 of the petitioner statement on oath and the attached form EC 8E (ii) as Exhibit A, which forms part of the petition, to show that the petitioner agreed that the result was declared on 14th November, 2009.

The petitioner’s petition was filed on the 14/12/09, and that is the 31st day from 14th November, 2009, the day the result was declared, both days inclusive.
Learned counsel further submitted that, the operative word in section 141 of the Electoral Act, 2006 is “from” which made the date the result was declared i.e. 14th November, 2009 inclusive of the days to be counted. The word “Within” makes it mandatory that the petition must be filed before the expiration of the thirty (30) days. See: – Action Congress v. Jang (2009) All FWLR (pt.467) 156 at 184. The petition ought to have been filed on or before the 13th December, 2009 which is the 30th day. See:- Emeje v. Positive (2009) All FWLR (pt. 467) 156 at 184. The petition ought to have been filed on or before the 13th December, 2009 which is the 30th day. See:- Emeje V. Positive (2009) All FWLR (pt. 452) 1056 at 1074 – 1075; Alataha v. Asin (1999) 5 NWLR (pt. 601) 32 at 44; Ogebor V. Danjuma (2003) 15 NWLR (pt. 843) 403 at 434 – 435; Ogbebor V. Danuma (2003) 15 NWLR (pt. 843) 403 at 434 – 435; Ekpo v. Calavar Local Government (1993) 3 NWLR (pt. 281) 324 at 339; Umaru V. Aliyu (2010) All FWLR (pt. 508) 329 at 361; Tsumba v. Itomyima (2009) 9 WRN, Pg. 200 at 214; Daramola v. Aribisala (2009) All FWLR (pt. 496) 1964 at 2004 – 2005.
Learned counsel further submitted that, it does not matter what time of the day on 14th November, 2009 that the result was declared See: – Action Congress v. Jang (supra). Also, that the provisions of the Act and Federal High court Rules will not apply to of section 141 of the Electoral Act, 2006, See: – Action Congree V. Jang (supra); Kupolati v. Oke (2009) All FWLR (pt. 486) 1858 at 1905; Tsumba v. Itomyima (supra); Ayantola v. Action Congress (2009) 18 WRN Pg. 141 at 171; Daramola v. Aribisala (supra) at Pg. 2000 – 2001.

Learned Counsel further submitted that, in view of the above submission that the interpretation Act- and Federal High Court (Civil Procedure) Rules 2000, will not apply to the provisions of the said section 141, the petitioner cannot be heard to argue that because 13th December, 2009 was a Sunday he will be justified to file on 14th December, 2009 which was a Monday, such a submission is erroneous in law See:- Kupolati v. Oke (supra) at pg. 1915 – 1917. Also the Petitioners’ submission that there was no Erection Tribunal established within the period provided for presenting the petition is of no moment and it is inapplicable to the circumstances of this case, as the establishment of an Election Tribunal appointment of Election Petition Tribunal/judges and composition thereof is different from the presentation of an election petition within 30 thirty days from the date of the result of the election is declared under section 141 of the Electoral Act, 2006. See: – paragraph 3 (1) of the first schedule of the Electoral Act, 2006.

Section 141 of the Electoral Act, 2006 talked about the presentation of an Election petition within 30 (thirty) days while paragraph 3 (1) of the First schedule of the Electoral Act 2006, stated that the presentation of an election petition shall be made to the secretary. Paragraph 1 interpretation of the First schedule of the Electoral Act 2006 defined ‘Secretary’ which include the Registrar of the Court of Appeal or any officer or clerk acting for him.

Learned counsel submitted further that, the petitioner fails to present his petition within 30 days to the Registrar of the Court of Appeal or any other officer or clerk acting for him. The petitioner did not give any reason why his petition was not presented to the secretary i.e. the Registrar of the Court of Appeal or any officer or clerk acting for him within 30 days as stated under the said section 141 since it has not been shown by the petitioner that the Registrar of the Court of Appeal Ibadan or any officer or clerk acting for him were not in existence within the said 30 days. In effect therefore there is no lacuna in section 140 (3) and 141 respectively of the Electoral Act, 2006.

Learned counsel Submitted further that, the Exhibits ‘A’ and ‘B’ attached to the Counter-Affidavit of the petitioner did not state that the petitioner could not file his petition but only urge the president of the Court of Appeal to appoint the Election petition Tribunal/judges in Oyo State to look into the petition. See: – paragraph 3 of Exhibit ‘A’ while Exhibit ‘B’ only informed the presiding justice of the Court of Appeal, Ibadan Division that a petition has been filed in their Registry. The two exhibits are therefore inapplicable to the operation of section 141 of the Electoral Act, 2006.

Learned counsel further submitted that, it will be pedestrian for the counsel to the petitioner to have argued that the Court of Appeal Rules 2007 will be the applicable rules for the computation of time in this petition in view of the various recent decision of the Court of Appeal in Kupolati v. Oke (supra); Tsumba v. Homyinnz (supra) Ayantola V. Action Congress (supra) Action Congress V. Jang (supra) Daramola v. Aribisala (supra) which were the cases referred to in the main submission. The Court of Appeal Rules, 2007 will only apply to an appeal to the Court of Appeal from Election Tribunal. See: – paragraph 57 of the First schedule of the Electoral Act, 2006.

In his reply to the submissions of the learned counsel to the Appellant, learned counsel to the 3rd Respondent submitted that, any prospective petitioner who has taken the decision to file an election petition before a Tribunal has by so doing, avail himself of the right created by section 140 (1) and (2) of the Electoral Act, 2006.

Learned counsel submitted further that, the provisions of section 140 (3) is for constituting authority under section 285 of the constitution of the Federal Republic of Nigeria to constitute such panel for the Tribunal.

Section 140 (3) does in any way impose or curtail petitioner to file his petition and the court or tribunal over such grievances of the petitioner.
Learned Counsel further submitted that, section 141, Electoral Act, 2006 is a provision which directs the petitioner as to when petition could be presented validly before a competent tribunal. In essence, it is a provision that can stand on its own without wrecking any havoc whatsoever on the other provisions of the Electoral Act. It is therefore erroneous to contend as the Appellant’s counsel did that, section 141 has to be read alongside section 140 of the same Act.
Learned counsel submitted further that, the appellant contended that the Tribunal was wrong in relying on the plain and ordinary meaning of the wordings of the provisions of section 141 of the Electoral Act, 2006.

It is trite that in interpreting statutes whenever words are plain, precise and unambiguous, the court is to give such statutes their ordinary grammatical and natural meaning. See: – Maitsidau v. chidari (2008) 16 NWLR (pt. 1114) 553 at 575 paragraphs A-8. In the instant case, the wordings of section 141 Electoral Act 2006 are simple, plain, unambiguous, and precise, hence the Tribunal rightly rejected the call of the Appellant to make recourse to external aid i.e. interpretation Act, and instead go ahead to interprete the said provision literally and give the words their ordinary grammatical and natural meaning.

Learned counsel submitted further that, the Appellant equally argued that there are conflicting Court of Appeal decisions on whether or not the date of release of result of Election should be factored in while computing the 30 days period provided by section 141 of the Electoral Act 2006. This may be true; however, in such a situation the lower court and in the instant, the Tribunal has an unfettered discretion to choose which of the conflicting decisions of the Court of Appeal to follow. More importantly, however, the Appellant perhaps did not adverted his mind to the decision of the file court of the court of Appeal on the same issue which clearly settled this seeming contradictions by affirming the position that, the date of release of election result is inclusive in the 30 days period provided for filing an Election petition by section 141 of the Electoral Act, 2006. See: – Kumailia v. Sheriff (2008) All FWLR (pt. 437) 1032 at 1045 – 1046 paragraphs H – A; Akume v. Lim, (2008) 16 NWLR (pt. 1114) 490 at 506.
Learned counsel submitted further that, in the instant case there is no dispute as to the fact that the result of the Election under reference and the declaration of the 3rd Respondent was done on 14th November, 2009 and that the Appellant petition was presented to the secretary/Registrar at the Court of Appeal Registry Ibadan on the 14th day of December, 2009 a period of 31 days after the release of the election result. The consequence of such action is fatal and cannot be cured as such petition is liable to be struck out for want of jurisdiction as such a petition had been caught in the web of statutory limitation. See:- Balogun v. Odumosu (1999) 2 NWLR (pt. 592) 590; Elabanjo V. Dawodu (2006) All FWLR (pt 328) 604 at 659 paragraph. G.

Learned counsel further submitted that, in a bid to justify the presentation of his petition 31 days after the release of the election result he is questioning, the Appellant said there was no tribunal in place and that, he made efforts to file his petition within time and in support of his claims that administrative bottle necks or problems was responsible for his non-compliance with the express provisions of section 141, Electoral Act, 2006 two (2) Exhibits were annexed to his counter affidavit to preliminary objection of the 3rd Respondent calling for the striking out of the petition. Exhibits ‘A’ and ‘B’, assuming without conceding that the Appellant had to contend with administrative problems, such administrative problems cannot override the clear substantive provisions of the law like section 141 Electoral Act, 2006. See: – Malah V. Kachala (1999) 3 NWLR (pt. 594) 309 at 373 paragraph C.

Learned counsel submitted further that, the issue of non-availability of Tribunal has no correlation with presentation of petition as all that is expected of the petitioner is to file his petition; the business of appointing panel members of the Tribunal is that of the President of the Court of Appeal. Paragraph 1 (3) of the sixth schedule made pursuant to section 285 of the 1999 Constitution of Federal Republic of Nigeria.

Learned counsel further submitted that, the appellant having presented his petition to the Registry of the Court of Appeal has agreed intoto that, the Registrar of the Court of Appeal also doubles as the secretary to the Election Petition Tribunal and in the absence of any evidence to show that the Registrar of the Court of Appeal was not in place for any period, the tribunal was therefore right in holding that the secretary of the Tribunal include the Registrar of the Court of Appeal.

Learned counsel submitted further that, on, the contention of the appellant that the last date of 30 days period statutory granted in the instant, falls on Sunday which according to the Appellant is a public holiday and that by virtue of the rules of practice of the Court of Appeal, the Registry of the court do not open on Sundays and this situation renders it imperative for him to file his petition the next day, a Monday 14th December 2010. The answer to this submission which is in the opposite See: – Kupolati v. Oke (2009) All FWLR (pt. 486) 1858 at 1917 paragraphs A-C as well as paragraphs C – F.

Learned counsel submitted further that the rationale for the above is found in the Lexical meaning of the two (2) key words in the provision of section 141 Electoral Act 2006 these words “FROM” and WITHIN the word FROM is defined as a function word is used to indicate a starting point. In reckoning or in a statement of limits See: – WEBSTERS NINTH NEW COLLEGIATE DICTIONARY Pg. 494. On the other hand, the second word “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.

A very convenient point for the consideration of this court, to the issues raised in this appeal is paragraph 4.4 of the Appellants brief of argument, where in the Appellant submitted as follows: –

“The Appellant will submit with the greatest respect that the issue before the Tribunal was not whether the meaning of section 141 was clear, but whether given the provisions of section 140 (1), (2) and (3) there was a competent Tribunal registry at which the Appellant could have presented his petition? The answer clearly in no.”

For the purposes of clarity, this court will reproduce section 140 (1) (2) and (3) of the Electoral Act 2006.

Section 140 (1): –

“No election and return at an election under this Act shall be questioned in any manner other than by petition complaining of an undue election or undue return (in this Act referred to as an “Election Petition) presented to the competent tribunal or court in accordance with the provisions of the Constitution or this Act and in which the person elected or returned is joined as a party.

(2)     In this section “Tribunal or Court” means: –

(a)     In the case of Presidential election, the Court of Appeal; and

(b)     In the case of any other elections under this Act, the Election Tribunal established under the Constitution or by this act

(3)     The Election Tribunal provided for under the Constitution and this Act shall be constituted not later than 14 days before the election.”

 

However, from the record before the court, the ruling of the tribunal of the 17th day of June 2010 was sequel to filing of two (2) separate motions on Notice by the learned counsel to the 1st, 2nd 4th and 5th Respondents, and that of the 3rd Respondent, each of which was challenging the competency of the petition and the power of the Tribunal to entertain same. Both motions contend in the main that the petitioner’s petition which was filed on the 14th December, 2009 was filed outside the thirty (30) days statutory period prescribed by section 141 of the Electoral Act 2006. That the petition is incompetent and therefore liable to be struck out. The main planks of the two motions are both jurisdictional in nature, and therefore the trial tribunal was under a duty to abet any action in respect of the petition and determine the issue of jurisdiction first. It is trite that jurisdiction is the threshold of any decision of a court or tribunal, any action done or proceeded upon by a court or Tribunal as the case may be without jurisdiction will be null, void, and of no effect, no matter how well conducted. A court can only be competent if among other things all conditions precedent for its having jurisdiction are fulfilled. See:- Madukolu and Ors v. Nkemdilimi (1962) 1 All NLR 587 at 594, Bairamian F.J. (as he then was) stated the principles which have been accepted in successive cases. “A court is competent” he said”, when: –

(1)     It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another and

(2)     The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3)     The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.”

See also: – Tukur v. Government of Gongola State (1989) 9 S.C. 1; Nigeria Deposit Insurance Corp, v. Okem Enterprises Ltd. (2004) 10 NWLR (pt. 880) 107; Ben Obi Nwabueze v. Justice Obi Okoye (1988) 4 NWLR (pt. 97) 644; Bronix Motors v. Wema Bank (1983) All NLR 272; Federal Republic of Nigeria v. Ifegwu (2003) 8 MJSC 36; Amerian Inter, Insurance Co. v. Ceekay Traders Ltd. (7987) 7 N.S.C.C. 132; Kalango and Ors v. Dokubo & Ors (2003) 15 WRN 32; Wema Bank v. C.L.I. Ltd (2002) 34 WRN 73.

The Appellant was therefore wrong in his submission at paragraph 4.4. of his brief of argument to the effect that the issue before the Tribunal was not whether the meaning of section 141 was clear but whether given the provisions of section 140 (1), (2) and (3) there was a competent Tribunal registry at which the Appellant could have presented his petition. The issue of jurisdiction takes precedence and must be determined first, therefore the consideration of the effect of section 141 of the Electoral Act 2006 to petition as rightly done by the trial tribunal was right as it raised jurisdictional question and must be determined first. It is only after the due consideration of section 141 of the Electoral Act as raised in the Respondents motions that the trial tribunal can be allowed to give consideration to section 140 (1), (2) and (3) of the Electoral Act 2006.

The Appellant had submitted that the issue before the tribunal was not whether the meaning of section 141 of the Electoral Act 2006 was clear. This court in view of that, therefore will not join the teaming controversies on its interpretation. Suffice however is to say that the decision of the tribunal in its ruling of the 17th of June 2010, which is the subject of this appeal, is based on the Tribunals interpretation of section 141. It thus becomes in escapable that the provision of section 141 must be at the front burner in the determination of this appeal.

Section 141 of the Electoral Act 2006 provides: –

“An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”

From the record before this court, on the 14th November, 2009, the 1st Respondent conducted a bye-election for the Ibadan South West, Ibadan North West Federal constituency. It declared the result of the election on 14th November, 2009. The Appellant as petitioner challenged this declaration made by the 1st Respondent in favour of the 3rd Respondent at the National Assembly Election Petition Tribunal (here in after called “The Tribunal) sitting in Ibadan vide a petition filed on 14th December, 2009. By the two (2) separate motions of the 1st, 2nd, 4th and 5th Respondents and that of the 3rd Respondent. It was contended that the said petition could not be adjudicated upon having filed outside the 30 days period provided for the presentation of election petition by section 141 of the Electoral Act, 2006. The Appellant in this appeal however availed himself of the provisions of section 140 (1), (2) and (3) enumerated earlier or, in this judgment, that his failure to meet the mandatory 30 days prescribed by the Electoral Act section 141 was the absence of a Registry as a Tribunal was not constituted by the Honourable President of the Court of Appeal in accordance with his powers under section 285 of the constitution of the Federal Republic of Nigeria 1999. The Appellant however by Exhibit – ‘B’ attached to his counter-affidavit, presented the petition 31 days after the release of the result of the Election, at the Court of Appeal Registry and the petition was duly accepted. The Appellant had argued that the affect of his action or steps taken prior to the establishment of the Tribunal must be governed by the rules of the court in which it was filed. This position of the Appellant cannot be correct. The provisions of paragraph 3(1) of the First Schedule to the Electoral Act, 2006 clearly state before whom the petition should be presented to wit:-
“The presentation of an Election Petition under this Act shall be made by the petitioner (or petitioners if more than one) in person, or by his solicitor, if any named at the foot of the el petition to the secretary, and the secretary shall give a receipt”.

The “Secretary” of the Tribunal was defined in the interpretation section of the First Schedule to the Act to include the Registrar of the Court of Appeal in the following terms:

“The secretary of an Election Tribunal established by the constitution or this Act and shall include the Registrar of the Court of Appeal or any officer or clerk acting for him”.

It is clear that the Appellant has not established a nexus between the limitation period for filing his petition 31 days after the release of the election result, and the Registry, he went to file his petition which was duly received at the Court of Appeal. An Election Petition is heard and determined by an appropriate Election Tribunal as usually provided by the Constitution. In the 1999 Constitution, such provision is made under Section 285 and the sixth schedule to the constitution. The procedure is largely governed by a law made specially to regulate the proceedings. The jurisdiction of an Election Tribunal to deal with Election Petition is of a very special nature different from that in an ordinary civil case. It is plain that the proceedings are special for which special provisions are made under the constitution. Election Petitions are distinct from the ordinary civil proceedings. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. See:-Benson V. Allison (1955-56) WRNLR 58; Emenue v. Nkerenwe (7966) 1 All NLR 63; Ige v. Olunloyo (1984) 1 SCNLR 158 which was decided on Application to amend the prayer sought in a petition, which Application was brought out after the time allowed for filing the petition. So an Election Petition is neither seen as civil proceeding in the ordinary sense nor, of course a criminal proceeding, it can be regarded as a proceeding sui generis. See:-Buhari v. Yusuf (2003) 6 SC (pt.11) 156. In view of the above therefore, it is absolutely wrong for the petitioner to lay claim that filing his petition 31 days after the declaration of the results of the election at the Court of Appeal Registry, the rules of the Court of Appeal shall govern the filing of his petition. His petition is bound and must follow the provisions of the Electoral Act 2006. He is bound, and the filing of his petition must be within the 30 days period prescribed under section 141 of the Electoral Act 2006.

Also at the time the Appellant filed his petition after the expiration of 30 days from the declaration of the result of the election to the House of Representatives to which the petition relates are clear and unequivocal, capable of one meaning held by the Tribunal. In other words the tribunal means what is said that no order shall be made after the stipulated period. See:- Mallam M.K. Ahmed v. Alhaji Haruna Kassim (1958) FSC 51 at 52 wherein it was stated:-
“The underlying principle is that the meaning and intention of Legislation must be collected from the plain and unambiguous expressions used there in rather than from any notions which may be entertained as to what is just or expedient. If a petitioner chooses to delay commencing his proceedings until the last moment he has only himself to blame if he finds himself out of time, and if a judge is not available at the court in whose Registry the motion is taken before the nearest available judge having jurisdiction to deal with the matter.”
It is to be stated that the case Mallam M.K. Ahmed v. Alhaji Haruna Kassim (supra) above is in all fours with the present Appeal. The Appellant had 30 days from the date of the declaration of result; filed his petition only on the 30th day which fell unto a Sunday, when the Registry of Court of Appeal could not be open, filed the petition on the 31st day, a Monday, has only himself to blame. The Supreme Court in more recent time followed its previous decision in Ahmed v. Kassim (supra) See:- Elabajo v. Dawodu (2006) All FWLR part (327) 604 at 609 ratio 3; Odubeko v. Fowler (1993) 7 NWLR (pt.308) 637; Ekeogu v. Aliri (1991) 3 NWLR (pt. 179) 258; Sanda v. Kukawa LG. (1991) 2 NWLR (pt.174) 379.

The Court of Appeal followed the trend established by the Supreme Court in Olaiya Kupolati and anor v. Olusola Oke (2009) All FWLR (pt.486) 1858 at 1862, ratio 2 on the duty of a petitioner intending to challenge the result of an election to do so timeously and diligently. Also See:- Adisa v. Oyinlola (2000) 10 NWLR (pt.674) 116 at 202.

Let me add only for the sake of emphasis that this court followed the principle established by Ahmed v. Kassim (supra) in Malah v. Kachala (1999) 3 NWLR (pt. 594) 309 at 313 Paragraph C thereof (referred). The court held as follows:-

“It would appear that the 1st Respondent encountered administrative problems in the presentation of his petition. However, administrative difficulties cannot override the express provision of the law”.

 

I must state here that I find no reason to disturb the decision of the Tribunal in the circumstances of this case. The sole issue for the determination is accordingly resolved against the Appellant.

In conclusion, the appeal lacks merit and is hereby dismissed. The ruling delivered by the National Assembly Election Tribunal, Oyo State string at Ibadan in petition No. OY/NAEPT/HR/1/2009 delivered on the 17th of June, 2010 striking out the Appellant’s Petition for want of jurisdiction is hereby affirmed by this court. There shall be costs assessed at N30,000.00 against the Appellant in favour of the 3rd Respondent.

MODUPE FASANMI, J.C.A.: I had the advantage of reading in advance the leading judgment of my learned brother, S. D. Bage, J. C. A, just delivered.
I agree entirely with the reasoning and conclusion reached therein.
The appeal lacks merit and I also dismiss same. I abide by all the consequential orders made in the lead judgment including cost.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother, Bage, J.C.A., traversed all the material areas of the appeal in the lucid judgment prepared by him which I had the honour of perusing in advance. I would adopt same as mine with these very few words.

Election petition matters are in a special class of their own or sui generic and are dictated by urgency or expeditious time frame. They are time bound. An intending petitioner must, therefore, not tarry with the time allocated for the doing of an act in respect of the petition. Because time cannot be extended for the doing of certain things, like the filing of an election Petition.

So the adage that a stitch in time saves nine is apposite to the timing of the taking of certain steps in an election petition. In Balogun v. Obumosu and Others (1999) 2 NWLR (Pt.592) 590 at 597, for instance, this Court dealing with a similar situation held per Pats – Acholonu, J.C.A., (later J.S.C, but now of blessed memory) that:

“The issue of time to complete the filing of all processes relating to the hearing and determination of an election petition was uppermost in the mind of the legislation. The enactment stretches itself further afield to do away with tardiness and waste of time, and endeavoured to consist the time of doing a particular act within a time frame work. In other words, it is the intention of the legislators that parties stick strictly to the times stated in the Decree. The court would not aid anyone who decided to sleep only to wake up when it is too late.” (My emphasis)

Since the petitioner was out of time in filing the petition, the petition was incompetent and robbed the Tribunal of the jurisdiction to entertain it on the merits. See the case of Mrs. Patience Chibueze v. Ibeddiro and Others (1999) 3 NWLR (Pt. 594) 206.

It is for the above reasons and the fuller reasons given by my learned brother, Bage, J.C.A., in the judgment just delivered that I too find no merit in the appeal and hereby dismiss it and abide by the consequential orders contained in the said judgment.