3PLR – HON. PATRICK OBAHIAGBON V. RASAQ BELLO OSAGIE & ORS.

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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HON. PATRICK OBAHIAGBON

V.

RASAQ BELLO OSAGIE & ORS.

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 21ST DAY OF MAY, 2009

CA/B/EPT/122/2008 (CONSOL.)

3PLR/2009/17 (CA)

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

HELEN MORONKEJI OGUNWUMIJU, JCA

ALI ABUBAKAR BABANDI GUMEL, JCA

CHIOMA EGONDU NWOSU-IHEME, JCA

 

BETWEEN

HON. PATRICK OBAHIAGBON – Appellant(s)

 

AND

1. RASAQ BELLO OSAGIE
2. ACTION CONGRESS (AC)
3. PEOPLES DEMOCRATIC PARTY
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION
5. RESIDENT ELECTORAL COMMISSIONER, EDO STATE
6. THE RETURNING OFFICER, OREDO FEDERAL CONSTITUENCY
7. WARD RETURNING OFFICER, WARD 1
8. WARD RETURNING OFFICER, WARD 2
9. WARD RETURNING OFFICER, WARD 3
10. WARD RETURNING OFFICER, WARD 4
11. WARD RETURNING OFFICER, WARD 5
12. WARD RETURNING OFFICER, WARD 6
13. WARD RETURNING OFFICER, WARD 7
14. WARD RETURNING OFFICER, WARD 8
15. WARD RETURNING OFFICER, WARD 9
16. WARD RETURNING OFFICER, WARD 1017. WARD RETURNING OFFICER, WARD 11
17. SUPERVISORY PRESSIDING OFFICER, WARD 3 Respondent(s)

 

MAIN ISSUES

 

1. PRACTICE AND PROCEDURE – JURISDICTION – ISSUE OF JURISDICTION: Whether or not it is unnecessary to consider arguments and decide other issues raised in the appeal after dealing with the issue of jurisdiction

“As the final Court in election matters other than the Presidential Election, the disposal of this issue would affect the appeal. Where an appeal is based on several grounds which include a ground raising issue challenging jurisdiction on a firm ground before the Court of Appeal sitting as a final Court in an Election Petition appeal, it is unnecessary to consider arguments and decide other issues raised in the appeal after dealing with the issue of jurisdiction.” Per C. E. NWOSU-IHEME, J.C.A.(P.12, paras. B-D)

 

2. PRACTICE AND PROCEDURE – JURISDICTION – ISSUE OF JURISDICTION: Whether or not the issue of jurisdiction must be decided as soon as it is raised and where courts lacks jurisdiction such trial will be a nullity

“It is trite that jurisdiction is a threshold issue which must be decided as soon as it is raised, and it may be raised at any stage of the proceedings and even on appeal. Where a Court lacks jurisdiction, no matter how well the trial is conducted, the trial would be a nullity.” Per C. E. NWOSU-IHEME, J.C.A.(P.11, paras. E-F)

 

3. INTERPRETATION OF STATUTE – PARA 49(2) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT 2006: Provisions of Para 49(2) of the first schedule to the Electoral Act 2006

“In any event Para 49(2) of the first schedule to the Electoral Act 2006 is quite clear and it is to the effect that any objection to the competence of an election petition particularly on the matter of content and form must be raised and disposed of timeously.”Per OGUNWUMIJU, J.C.A(P.17, para.G)

 

4. INTERPRETATION OF STATUTE – SECTION 141 OF THE ELECTORAL ACT 2006: Provisions of Section 141 of the Electorial Act 2006

“The 1st & 2nd Respondents on their part argued that since the last day was a Sunday regarded as a “work free day”, they were within the ambit of the law to have filed the Petition on Monday the 21st May 2007 the next working day. They also cited numerous authorities to buttress this stand. Section 141 of the Electoral Act 2006 provides as follows: “An Election Petition under this Act SHALL be presented within Thirty (30) days from the date the result of the election is declared.” (underlining mine for emphasis). All Counsel in this appeal conceded that the result was declared on the 21/4/07, hence the Respondents concentrated on the issue that since the last day fell on Sunday, a non working day, that the Petition filed on the 21st of May 2007 the following day was well within the Law.” Per C. E. NWOSU-IHEME, J.C.A.(Pp.12-13, paras. G-B)

 

5. INTERPRETATION OF STATUTE – SECTION 15 OF THE INTERPRETATION ACT: Provision of section 15(1) of the Interpretation Act

“S.15 of the Interpretation Act states as follows:- “15(1) A reference in an enactment to the time of day is a reference to the time, which is one hour in advance of Greenwich mean time (2) A reference in an enactment to a period of days shall be construed – (a) Where the period is reckoned from a particular event, as excluding the day on which the event occurs; (b) Where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday. (3) Where by an enactment any act is authorized or required to be done on a particular day and that day is a holiday, it shall be deemed to he duly done if it is done on the next following day which is not a holiday. (4) Where by an enactment any act is authorized or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period. (5) In this section “holiday” means a day which is a Sunday or a public holiday.” We must also remember that the above section is a general legislation on the subject of public holidays. The law is that special provisions in a statute relating to a matter overrides general provisions on the same matter in another statute or similar statute.”(Pp.24-25, paras. C-A)

 

MAIN JUDGMENT

CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.: (Delivering the Leading Judgment):

This appeal is against the Judgment of the Governorship, and Legislative Houses Election Tribunal sitting in Benin, Edo State. The said Judgment was delivered on the 22nd of April 2008. The Appellant in Appeal NO.CA/B/EPT/122/08 Patrick Obahiagbon was the 3rd Respondent at the lower Tribunal. He was the Candidate of the Peoples Democratic Party (PDP) for Oredo Federal Constituency in Edo State held on the 21/4/07.

The 1st Respondent in the same appeal NO.CA/B/EPT/122/08 Rasak Bello Osagie was the Candidate of 2nd Respondent, the Action Congress (A.C.). The 3rd to the 18th Respondents in the appeal were the Independent National Electoral Commission, INEC, and its officials that conducted the said election.
At the conclusion of the elections, the Appellant was declared victorious and returned as elected. Dissatisfied with the declaration and return, the 1st & 2nd Respondents, as Petitioners in the lower tribunal, commenced proceedings by way of an Election Petition by which they questioned the election on two grounds namely:

1. “The 3rd Respondent was not duly elected by a majority of lawful votes cast at the election.
2. The election to the House of Representatives for Oredo Federal Constituency of Edo State, by the 1st Respondent on 21/4/07 was invalid by reason of corrupt practices;”

He then sought the following reliefs:

“(a)    That it be determined that the 3rd Respondent herein was not duly elected or did not score a majority of lawful votes cast at the House of Representative Election for Oredo Federal Constituency Conducted by the 1st Respondent on 21/4/07 and ought not to have been returned as the winner;

(b)     That it be determined that save for wards 8 and 12, the votes allegedly scored or credited to the 2nd and 3rd Respondents in all the other Wards in Oredo Federal Constituency are invalid on grounds of corrupt practices, fraud, ballot box stuffing and arbitrary allocation of votes and ought to be set aside

(c)     That it be determined that the Petitioners had the majority of lawful votes cast at the House of Representative Election held on 21/4/07 for Oredo Federal Constituency and the 1st Petitioner ought to have been returned or declared as winner by the 1st Respondent.

ALTERNATIVELY

(i)      That it be determined that the House of Representatives Election to Oredo Federal Constituency conducted by the 1st Respondent on 21/4/07 was substantially marred by corrupt practices and is liable to be annulled and the 3rd Respondent’s return as winner set aside;

(ii)     That it be determined that the 1st, 4th – 15th Respondents did not comply with the Electoral Act 2006 in the conduct of the House of Representative Election for Oredo Federal Constituency and the return of the 3rd Respondent as winner ought to be annulled and set aside. An order nullifying the House of Representative Election for Oredo Federal Constituency conducted by the 1st Respondent on 21/4/07 and directing the conduct of a fresh election in the constituency save for Wards 8 and 12.”

The Respondents filed their various replies to the Petition. Thereafter the Petition proceeded to trial, at the end of which the lower tribunal in its Judgment at page 921 of the record of appeal held that the Petitioners had proved their case
“After the deduction of the invalid votes, AC will be left with 3904 to PDP 2282. Premised on the above, we hereby hold that the Petitioners have made out a case which entitles them to a declaration that they have scored a majority of lawful votes cast at the election and ought to be returned or declared as the winner of the election. This tribunal hereby declares as follows;

(i)      the 3rd Respondent did not score the majority of lawful votes cast at the election. His election and return at the election is therefore invalid

(ii)     the 1st Petitioner scored majority of lawful votes cast at the election and is therefore declared winner of the election to the Oredo Federal Constituency.”

It then proceeded to nullify the election and return of the Appellant (3rd Respondent at the tribunal) and declared the 1st Respondent (1st Petitioner at the lower tribunal) as winner.

Dissatisfied with the Judgment, the Appellant appealed to this Court. In his original Notice of Appeal dated 5th day of May, 2008, and filed same day, the Appellant had three grounds of Appeal. Later, by the leave of this Court, brought four additional grounds, making it seven grounds of Appeal, from which he formulated, Three Issues for determination;

1. Whether their Lordships of the Election Tribunal acted lawfully and correctly in Law when they nullified the votes and election of the Appellant on ground of malpractices of excess votes.
2. Whether their Lordships of the Election Tribunal acted lawfully when they nullified 64,632 votes from the votes cast and Credited to the Appellant on the ground of recount of votes cast at the election, conducted by the Petitioners/Respondents’ Counsel without any order of the tribunal first sought and obtained in the proceedings and whether the final order of the Tribunal first sought and obtained in the proceedings and whether the final order issued by the tribunal is valid in Law.

iii.      Whether their Lordships of the Election Tribunal acted correctly in Law when they nullified the election of the Appellant on the ground of alleged malpractice of “excess votes” purportedly recorded by INEC officials in favour of the Appellants when these statutory and compulsory Respondent officials of INEC were neither joined, heard nor given opportunity of hearing by the tribunal before the decision thereof.

1. Whether the Petition of the 2nd Respondent was competent when it was filed outside the statutory period.

The Peoples Democratic Party (PDP) which was the 2nd Respondent at the lower Tribunal also appealed against the Judgment in appeal NO. CA/B/EPT/123/08 and therein raised issues for determination.

The Petitioners at the lower Tribunal (1st & 2nd Respondents herein) as well as INEC and its officials also filed their respective briefs:

Consequent on the orders of this Court, the two appeals were consolidated as one appeal. Issues were joined by parties and briefs were filed by Counsel.
Chief A.S. Awomolo SAN in his issue No.4 raised the issue of jurisdiction.
Wale Olanipekun SAN learned Counsel for the 1st & 2nd Respondents adopted the issues formulated by the Appellant for determination, C.O. Ihensekhien for the 4th – 18th Respondents adopted the same method concerning the issues for determination.

I will adopt the issues identified by the Appellant’s Counsel already set out above in the Consideration of this appeal. I will start with issue No.4, for the simple reason that it raised the issue of jurisdiction i.e. “Whether the Petition of the 2nd Respondent was competent when it was filed outside the statutory period.” It is trite that jurisdiction is a threshold issue which must be decided as soon as it is raised, and it may be raised at any stage of the proceedings and even on appeal. Where a Court lacks jurisdiction, no matter how well the trial is conducted, the trial would be a nullity. See CHIEF ELIGBE OMOKHAFE (2004) 12 SCNJ. Page 106.

ELABANJO V. DAWODU (2006) 6 SCNJ 204.

The issue of Jurisdiction will be considered and dealt with first, even though it is the 4th and last issue distilled for determination. The disposal of this issue one way or the other will affect the entire appeal. If I find that the issue of Jurisdiction is well within the Law, this Court will have no jurisdiction to go into the merit of this appeal. If on the other hand the issue of jurisdiction is misconceived, I will then go into the main appeal, and deal with the other issues for determination. As the final Court in election matters other than the Presidential Election, the disposal of this issue would affect the appeal. Where an appeal is based on several grounds which include a ground raising issue challenging jurisdiction on a firm ground before the Court of Appeal sitting as a final Court in an Election Petition appeal, it is unnecessary to consider arguments and decide other issues raised in the appeal after dealing with the issue of jurisdiction. See ALH. BARI BUDO NUHU V. ALH. ISOLA ARE OGELE (2003) 12 SCNJ. 158.

It is the case of the Appellants that the 1st Appellant was declared winner on the 21st of April 2007 the day the election was held. The 2nd Respondent filed the petition on the 21st of May 2007 i.e. on the 31st day, and therefore strayed from the 30 days provided for under Section 141 of the Electoral Act 2006. They cited several authorities to drive home this point.

The 1st & 2nd Respondents on their part argued that since the last day was a Sunday regarded as a “work free day”, they were within the ambit of the law to have filed the Petition on Monday the 21st May 2007 the next working day. They also cited numerous authorities to buttress this stand.

Section 141 of the Electoral Act 2006 provides as follows:

“An Election Petition under this Act SHALL be presented within Thirty (30) days from the date the result of the election is declared.” (underlining mine for emphasis).

All Counsel in this appeal conceded that the result was declared on the 21/4/07, hence the Respondents concentrated on the issue that since the last day fell on Sunday, a non working day, that the Petition filed on the 21st of May 2007 the following day was well within the Law.

To this end Exhibit 62 an earlier document by INEC form EC8A ii which bore 24th of April 2007 comes into play. Exhibit 62 is not the final document by INEC with which it declared the said result. The final document by INEC declaring the result is what is relevant for the purpose of interpreting Section 141 of the Electoral Act 2006 which provides for the date the result is declared.” If therefore the final document by INEC is in conflict with any of its earlier documents for the purpose of declaration of results of Candidates, the later document supersedes the former for the purpose of determining the day the result was declared in this matter.

I have carefully considered and studied the arguments and authorities in the briefs relied on by the parties.

There is no doubt that the said election was declared on the 21st of April 2007. It is also not in doubt that the Respondent filed his Petition at the lower tribunal on the 21st of May 2007 i.e. 31days after the declaration of the said result.
I am aware of the decision of this Court in CA/B/EPT/221/08 PATRICK IKHARAIALE & ANOR. V. THEOPHILUS OKOH & ORS. delivered on the 23rd of April, 2009, and other decisions of this Court on this issue. The facts and circumstances of that case are very similar to this. I have therefore decided not to go into details concerning arguments of Counsel, and detailed analysis of the issue of jurisdiction to avoid repetition. I see no cogent reason, or any reason whatsoever to depart from that Judgment.

In the circumstance of this case, I hold that time began to run on the 21st of April 2007, the day the result was declared, and that time ended on the 20th of May 2007. The filing of the Petition on the 21st of May 2007, a day outside the statutory period has therefore resulted in fatal consequences on the Petitioner (1st Respondent herein). The Petition filed on the 21/5/07 having been filed on the 31st day has regrettably strayed outside the period stipulated by Section 141 of the 2006 Electoral Act. The fact that the last day fell on a Sunday does not hold water to justify this lapse.

The petition is statute barred and section 141 of the said Electoral Act does not permit extension of time.

If the Petition is statute barred, it means the lower tribunal lacked the competence to entertain the Petition. The trial and the subsequent Judgment is an exercise in futility no matter how well conducted.

The said decision is a nullity as well as the consequential orders.
The Petition filed by the 1st & 2nd Respondents at the Tribunal below on the 21st of May 2007 having been  struck out. I make no order as to costs.

HELEN MORONKEJI, OGUNWUMIJU, J.C.A: I have had the privilege of reading before now the judgment just delivered by my learned Sister CHIOMA EGONDU NWOSU-IHEME JCA. I am constrained to agree with the conclusion therein that this appeal be allowed. However, I cannot with the greatest respect agree with the reasoning leading up to that conclusion to wit that the lower Tribunal was bereft of jurisdiction, the petition being filed out of time. I will give my own humble views as it relates to the issue of jurisdiction anon.

The appellant had raised the issue of jurisdiction and posited that the petition at the lower tribunal was incompetent because it was statute barred being out of time by virtue of S.141 of the Electoral Act 2006. Chief Awomolo SAN for the appellant argued that since the election result was declared on 21st April 2007, the petitioned 1st respondent had only 30 days to file the petition and that time lapsed on 20th May 2007. The petition filed on Monday 21st May, on the 31st day was thus out of time. Chief Awomolo, SAN argued that the Interpretation Act, Public Holidays Act would not serve a dead petition as S.141 had been interpreted to exclude them by this court. He argued that where there are conflicting decisions of this Court on any matter, the decision of the full Court which is latter in time is presumed to represent the law. He argued that the decision of the full Court in several divisions of this Court is that no extraneous provisions would be used in the interpretation of S.141 of the Electoral Act. Learned Senior Counsel further argued that S.15(4) of the Public Holidays Act says Sundays can only be left out if the thing ought to be done within six days. He argued that the Tribunal relied on Exh. 77 and 78 which clearly indicate that the election result was declared on 21/4/07.

Chief Akpofure SAN for PDP argued that since the 1st and 2nd respondents conceded that they did not plead the date the result was declared, they have failed to plead an essential ingredient which gives the lower Tribunal jurisdiction. To enable the Tribunal assume jurisdiction, facts touching on S.141 must be pleaded.

Chief Wole Olanipekun SAN of counsel for the 1st and 2nd respondents argued that Sunday being a work free day, the respondents were right to file the petition on the next working day being Monday 21st of May 2007. He submitted that it is not the duty of this Court to fish into the record to determine the date the election result was declared. He submitted that there was no objection to the petition at the lower Tribunal and there has been no ground of appeal against the finding of the lower Tribunal on the date election result was declared. Learned Senior Counsel argued that in all the cases cited by appellant’s counsel, there is nowhere in which the Courts have decided that where the date ends on a public holiday or Sunday, the Interpretation Act would not apply. He argued that the defence of legal impossibility avails the 1st and 2nd Respondents who could not file a petition on a Sunday. He argued that when an obligation is given by law, impossibility of performance is a good defence. He cited Ebe v. C.O.P. (2008) 4 NWLR Pt.1076 Pg. 1076; Milard Delta v. Olu of Warri. (1997) 7 NWLR Pt. 513 pg. 450 He also cited Order 23(1)(d) of the Federal High Court Rules and Order 54(7) of the same Rules. He also contended that the Public Holidays Act had made Sunday a superior day and S.4 and S.6(3) of the Act make it applicable to Tribunals. He cited Agbai v. INEC (2008) 14 NWLR (pt. 1108) pg. 417 at 434, where this Court held that the petition which ought to have been filed on a Sunday was validly filed on the following day which was a Monday.

Let me first of all say with the greatest respect that the issue of whether or not the petition was incompetent at the lower court because the petitioner did not disclose the date the petition was filed is irrelevant for the purposes of the determination of this appeal. This is an issue on which there is no ground of appeal and on which no issue has been distilled for determination. In any event Para 49(2) of the first schedule to the Electoral Act 2006 is quite clear and it is to the effect that any objection to the competence of an election petition particularly on the matter of content and form must be raised and disposed of timeously. See also Agagu v. Mimiko (2009) All FWLR Pt. 462 pg.1157-1158.
It is pertinent to note that copious recent authorities on this point by various divisions of this Court were cited by Chief Awomolo. They are all to the effect that no extraneous provisions can be deployed in the interpretation of S.141 of the Electoral Act. Chief Olanipekun in his oral argument sought to make a distinction between the interpretation of S. 141 with regard to when time starts to run as against when time terminates. His argument seems to me to be that – Yes, time starts to run on the day the election result was declared. This stand accords with the view that no extraneous provisions should be used in interpreting S. 141 of the Electoral Act 2006. As I will explain anon, all the relevant statutory provisions state that time starts to run the next day after an event has occurred. Learned Senior Counsel also argued on the other hand that an exception should be made and extraneous provisions applied where time terminates on a Sunday. I do not think with the greatest respect that I can agree with a tool of interpretation which in respect of some aspects of a section excludes the use of extraneous provisions and in other aspects of the same section of the law admits the use of extraneous provisions. The Interpretation Act, Public Holidays Act and Federal High Court Rules consist these extraneous provisions. The substance of Chief Olanipekun’s argument is that this panel is not bound by the doctrine of stare decisis since all the recent cases decided by the full panel of this Court were on the question of when time starts to run by virtue of S.141 of the Electoral Act 2006. My own humble understanding is that the ratio decidendi of these judgments is that S.141 being mandatory in nature by the use of the word “shall” and being clear and unambiguous does not tolerate the use of extraneous provisions in aid of its interpretation. That, in my humble view is the decision of the full Court in Jos, Kaduna and Abuja Divisions. I hold myself bound by the doctrine of stare decisis since the question for determination in these cases earlier decided by the full Court is the same question we have been asked to decide here – which is whether or not S.141 admits the use of extraneous provision in its interpretation.

Having said that, with all humility and respect to all concerned, the following are my humble views on the question of the interpretation of S.141 of the Electoral Act 2006.

S.141 of the Electoral Act 2006 provides as follows:

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

In 1999 and 2003, there were conflicting interpretation of similar provisions. In interpreting the provisions of S.132 of the Electoral Act 2002 which is in pari materia with S. 141 of the Electoral Act 2006, this court hitherto held in some cases that S.15(2) of the Interpretation Act and Order 23 Rule 1 of the Federal High Court Rules 2000 (both provisions are substantially the same) are applicable in the computation of time. See the following cases PDP V. HARUNA (2004) 16 NWLR Pt. 900 Pg. 597; GALANDU v. KAMA (2004) 15 NWLR Pt. 895 Pg. 31 at 60; AGOGU v. NNAMANI (2004) 15 NWLR Pt. 895 Pg. 134 at Pg. 150 – 151; KAMBA v. BAWA (2005) 4 NWLR Pt. 914 Pg. 43 at Pg. 78 – 79; AWUSE v. ODILI (2004) 8 NWLR Pt. 876 Pg. 481 at Pg. 505, IYIRHIARO v. USHO (1999) 4 NWLR Pt 597 Pg. 41.

However, this court in recent times held that neither the Interpretation Act nor the Federal High Court Rules are applicable to aid in the interpretation of S.141 of the Electoral Act 2006 and that the words in S.141 of the Electoral Act 2006 being clear and unambiguous must be adhered to without recourse to external aid.

Consequent on the above opinion, this court held that time starts to run on the date the election was declared and not the day after. See CA/J/EP/GOV/275/2007 AC & ANOR v. JONAH DAVID JANG & ORS; CA/J/EP/HA/30/2008 HON. TERSER TSUMBA v. KWANGINA OSBERU ITYOMYIMA; TERNGU TSEGBA v. AGBER VERSHINA TITUS CA/J/EP/HR/108/2008 & CA/J/EP/HR/108A/2008 delivered on 2/7/08; SENATOR ABU IBRAHIM & ANOR v. IBRAHIM SHEHU SHEMA CA/K/EP/GOV/98/2008; MR. DAVID UMARU & ANOR v. MUAZU BABANGIDA ALUJU & ANOR CA/A/EP/317/2007 AND CA/A/EP/232/2008 (consolidated) delivered on 19/2/08; HON. SANI SHA’ABARI & ANOR v. ALH. NAMADI SAMBO CA/K/EP/GOV/22/2008 delivered on 6/3/09; CA/K/EP/GOV/22/2008 delivered on 6/3/09; KUMALIA v. SHERIFF (2008) All FWLR Pt. 431 Pg. 1032; AKUME V. LIN (2008) 16 NWLR Pt. 1114 Pg. 490.

I must state that the basis of the above judgments has been the view that the Supreme Court’s decision in YUSUFU v. OBASANJO (2003) 16 NWLR Pt. 847 at pg. 532 to the effect that the Federal High Court Rules is applicable in interpreting the Electoral Act is obiter and thus not binding on this Court. With humility and respect, I beg to depart from this view. The Court of Appeal decision of the full Court was reported in (2003) 16 NWLR Pt. 847 at Pg. 532, while immediately after it on Pg. 554 the decision of the Supreme Court as a full Court was reported so that we can see clearly how the supreme court arrived at its decision to overrule the decision of the Court of Appeal. I do not quite agree that the Supreme Court decision in YUSUFU v. OBASANJO supra is not applicable to guide us in our interpretation of the section under review and that it dealt only with the issue of the time when an amendment can be effected to an election petition. Niki Tobi JSC in considering the arguments of learned counsel for both sides started by considering the applicable rules of court and legislations to be interpreted by the court, particularly the Interpretation Act, the First schedule to the Electoral Act and the Federal High Court Rules.

We must remember that the time limited for filing a petition is the same time for filing an amendment to it. Thus any amendment must be filed within the time allowed to file a petition. The Supreme Court then had to decide in arriving at the consideration of the issue submitted for their Lordships for determination whether time to file an amendment to a petition/time to file a petition had lapsed. Niki Tobi JSC had this to say at pg. 608-609 of the NWLR pt. 847.
“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 to 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 30 days from the date of declaration of the election. This interpretation is in conformity with the provisions of Order, 12 Rule. 1 of the Federal High Court (Civil Procedure) 1976 which provides in part as follows………”

This is in pari materia with Order 23 Rule 1 of the 2000 Federal High Court Rules. Also Uwaifo JSC held the same view at pg. 629-630 paragraphs D-B
“It is not in dispute that the presidential election result in question was declared on 22nd April 2003. The petitioner in this case had 30 days within which to appeal against it. The 30 days would be calculated from the 23rd April to end on the 22nd May 2003……………..”

It is clear that the Supreme Court used the Federal High Court Rules similar to the same provisions in the Interpretation Act to compute time. The Court of Appeal ordinarily by the rule of stare decisis is bound to follow the decision of the Supreme Court. See PROFESSOR A. D. OLUTOLA v. UNIVERSITY OF ILORIN (2004) 12 SCNJ 1; CHIEF ALIU ABU v. CHIEF ODUGBO (2001) 7 SCNJ 262. Let us even assume that the decision of the Supreme Court is not binding being obiter, can the Court of appeal not be persuaded by it? I think this court should have been persuaded by the judgment of the Supreme Court. Let me give other reasons why I am persuaded.

In this case, all parties are ad idem that the election was held on 21st April 2007and the results declared on the same 21st of April 2007. All counsel also concede that time started to run on 21st April 2007. The question is that in this case when did time run out for presentation of the petition? 1st & 2nd Respondents’ counsel had argued that since the 30th day was a Sunday and regarded as a public holiday or a work free day by the provisions of S. 15 of the Interpretation Act and the Public Holiday Act, then the next following day to the 30th day which in this case is May 21st is the last day and thus the petition was validly filed on that day. Is there a window of opportunity provided by the Electoral Act 2006 or any other relevant legislation for the business of the court or Tribunal to be conducted on a Sunday? It is important to read some relevant legislation along with certain sections of the Electoral Act 2006 and the Public Holidays Act cited by 1st & 2nd Respondents’ counsel to determine what constitutes 30 days and the purpose of the legislators.

Let us take a glimpse of the Interpretation Act. The Interpretation Act is a constitutional provision by virtue of S.318(4) of the 1999 Constitution. Let us remember that S.1 of the Act stipulates that it is applicable to all legislation unless the contrary is stipulated in the said legislation. Thus there must be an express rather than an inferred intention to exclude the Interpretation Act.

S.15 of the Interpretation Act states as follows:-

“15(1) A reference in an enactment to the time of day is a reference to the time, which is one hour in advance of Greenwich mean time

(2)     A reference in an enactment to a period of days shall be construed –

(a)     Where the period is reckoned from a particular event, as excluding the day on which the event occurs;

(b)     Where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday.

(3)     Where by an enactment any act is authorized or required to be done on a particular day and that day is a holiday, it shall be deemed to he duly done if it is done on the next following day which is not a holiday.

(4)     Where by an enactment any act is authorized or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period.

(5)     In this section “holiday” means a day which is a Sunday or a public holiday.”

We must also remember that the above section is a general legislation on the subject of public holidays. The law is that special provisions in a statute relating to a matter overrides general provisions on the same matter in another statute or similar statute. See ATT. GEN. OGUN v. ATT. GEN. FEDERATION (2002) 12 SCNJ 191; FRN v. P.N. OLLOH (2002) 4 SCNJ 423.

The special legislation on public holidays is the Public Holidays Act. Let me restate S. 4 thereof:

“No person shall be compellable to do any act on a day appointed by or under the provisions of this Act to be kept as a public holiday which he would not be compelled to do on a Sunday.”

It states in S. 6 as follows

“6. (1) Notwithstanding any of the foregoing provisions of this act, the Director-General of a ministry or the held 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.

(2)     In this section, the “appropriate authority” means –

(a)     with respect to any Ministry or Department of the Government of the Federation, the Minister for Internal Affairs; and

(b)     with respect to my Ministry or Department of the Government of a State, the State Commissioner charged with responsibility for matters relating to public holidays.

(3)     In this section, references to Department include references to any court or tribunal set up pursuant to any written law or any other public institution the emoluments of whose employees are paid out of the Consolidated Revenue Fund of the Federation of a State or any other public fund of the Federation of a State and reference to members of the armed forces of the Federation and the Nigeria Police Force.”

From the above, the Tribunal can be compelled by the relevant authorities to sit on Sunday whereas by S.4 of the Act, a non public officer cannot be compelled to conduct business with the tribunal.

Paragraph 50 of the first schedule to the Electoral Act 2006 provides that subject to the “express provision” of the Electoral Act, the Federal High Court Rules shall be applied. Or. 23 r. 1 of the Federal High Court Rules 2000 states as follows:-
“Where by any written law or any special order made by the court in the course of any proceedings, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceedings and the time is not limited by hours, the following rules shall apply-

(a)     the limited time does not include the day of the happening of the event, but commences at the beginning of the day next following that day;

(b)     the act or proceeding shall be done or taken at least on the last day of the limited time;

(c)     where the time limited is less than five days, public holiday, Saturday or Sunday shall be reckoned as part of the time.

(d)     when the time expires on a public holiday, Saturday or Sunday the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards not being a public holiday, Saturday or Sunday.

Paragraph 25 of the 1st Schedule to the Electoral Act states as follows:-

25(1)          After the hearing of an election petition has begun, if the inquiry cannot be continued on the ensuring day or, if that day is a Sunday or a public holiday, on the day following the same, the hearing shall not be adjourned sine die but to a definite day to be announced before the rising of the Tribunal or Court and notice of the day to which the hearing is adjourned shall forthwith be posted by the Secretary on the notice board.

(2)     The hearing may be continued on a Saturday on a public holiday if circumstances dictate.

Paragraph 25 does not state that the registry of the Tribunal can be open for business on Saturday, public holiday or Sunday nor does it say that hearing can be conducted on a Sunday. See Iloka v. Utomi (1999) 2 NWLR Pt. 592 Pg. 583. The combined effect of S.15(5) of the Interpretation Act, Order 23 Rule 1(d) of the Federal High Court Rules, paragraph 25 of the First Schedule to the Electoral Act and the impression garnered from all these legislations is that no business can be conducted on a Sunday or public holiday. Indeed in Milard Delta v. Olu of Warri (1997) 7 NWLR Pt. 513 Pg. 450, the Court held that on days known as dies non juridicus, no legal business can be conducted such as Sundays and public holidays.

I have set out the above provisions as it affects the Electoral Act to show that we cannot interpret the S.141 in splendid isolation. The canon of interpretation is that the entire legislation must be considered as a whole rather than construing a part of it in isolation. See Chief Ojukwu v. Chief Obasanjo (2004) 7 SCNJ 33, River State v. Specialist Consult (2005) 2 SCNJ 34
S. 2 of the Public Holidays Act gives the President of the Federal Republic of Nigeria or the Governor of a State the powers to appoint any day as a public holiday. Since the executive is mandated to declare unscheduled public holidays, which can be declared at anytime what then happens? There is a rebuttable presumption that the registry of the election petition tribunal would not be open on a public holiday or for that matter on a Sunday which is ordinarily a work free day.

Can we in our interpretation of the Electoral Act abridge the rights of a petitioner? If we take the view that the litigant has deliberately put himself in jeopardy by waiting till the last day to file a petition when the last day then falls on a Sunday or a public holiday and he deserves the outcome of his lethargy, would we be right in depriving him of the 30 days given to him by law, thus abridging his rights?

Let us even take the position conceded by the 1st and 2nd Respondents’ counsel that time may be computed from the date the election was declared. The phrase “within 30 days” even though it means before the end of 30 days is a general phrase used for computing time in most of the rules of court and other legislation. All these other legislation make it clear that the phrase “within ………….. days” takes cognizance of S.15(1)(b) of the Interpretation Act or Federal High Court Rules Order 23 Rule 1(d) which stipulate that where time to do an act expires on a public holiday or Sunday it can be validly done the following day. In the Court of Appeal Rules, 2007, Order 3 Rule 9 states that the Registry is open from 8.am – 1p.m., except on Saturdays and Sundays or Public Holidays. The word “shall” being employed by the section makes it a mandatory provision in the normal course of events. In my humble view, it does not on its own infer an intention to exclude the Interpretation Act or the Federal High Court Rules.

In determining the object or meaning of a statute the intention imputed to a statute must accord with convenience, reason, justice and legal principles. The fact that Sunday is a work free day is the norm in all common law jurisdictions and so stipulated in all relevant legislations. It would be absurd to ask the petitioner who is ready to present his petition on the last day allowed to him by law to go away because the last day is a public holiday or a Sunday. The law does not recognize the intervening public holidays or Sunday within the 30 days but recognizes that where the time allowed terminates on a Sunday, the process can be validly filed the following day. The law does not expect a litigant to do an impossibility.

The law will not give a right with one hand to take it with the other hand. That is why there are copious legislation quoted above to ensure that peradventure the time stipulated terminates on a public holiday or Sunday, the litigant is not deprived of his full entitlement. A construction that would lead to absurdity or manifest injustice should be avoided where some other construction is available. See CHARLES OKIKE v. THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2005) 4 SCNJ 212. It clearly stands to reason that in computing 30 days, where the 30th day falls on a public holiday the petition can be filed on the day following the public holiday. Any legislation taking away a right given by common law or statute must do so in clear unambiguous words. ONUOHA KALU v. THE STATE (1998) 12 SCNJ 1.

For example, in Iloka v. Utomi (1999) 2 NWLR Pt. 592 Pg. 583, this Court excluded the application of the Interpretation Act and the Public Holidays Act because S.86(2) of Decree 36 of 1998 provides expressly that “appeals to the Constitutional Court on an election petition shall be brought within seven days notwithstanding the provisions of any other enactment to the contrary.” (Underlining mine). Thus the statute expressly excluded the application of the Interpretation Act as anticipated in S. 1 of the said Act. That is quite different from the provisions of S.141 where the bland and common phrase “within 30 days” was used without any attempt to exclude any other provision.
I must say that I was torn between taking a liberal view or the literal view of the interpretation of the provisions of S.141 of the Electoral Act 2006. This is more so because of the seemingly majority view of my esteemed and learned brothers that a literal view would be apt. Obviously a literal view would mean that “within 30 days” would mean no more and no less, whereas a liberal view would take into consideration applicable legislation and the justice of the case that would not negate the right of access to courts by the litigant. The law gives the litigant 30days. In my humble view the litigant’s 30 should be sacrosanct. I would not have denied the litigant the right to any minute of the 30 days provided by law. This opinion is based on the need to do substantial social justice particularly in election petition matters. See Awuse v Odili at pg 521-522, the full court, Coram: RD Mohammed JCA, P.O Aderemi JCA, (at he then was) Amiru Sanusi JCA, A.G. Oduyemi JCA, and D.A. Adeniji where Aderemi JCA (as he then was) held as follows: “A Court of law which is also a court of justice must always realize that where by according a literal meaning to the provision if a statute it will result in some ambiguity or injustice, the court may seek internal aid within the body of the stature itself or external aid from statutes which are in pari materia in order to resolve the ambiguity or to avoid doing injustice in the matter”

To shortchange a litigant of the 30 days provided by statute on the excuse that having waited till the last day at his peril to file a petition, he should suffer and his access to justice denied in my view could not have been the intention of the lawmakers. In essence I agree with the views of Chief Wole Olanipekun on the jurisdiction of the lower court to hear the petition.

The ideology and the rationale driving the judiciary in our delicate task of ensuring the nurturing and survival of our fledging democracy is the will to do sound social justice. I am fortified in this view by the obiter of Pats- Acholonu JSC in YUSUFU v. OBASANJO (2003) 16 NWLR Pt. 847 Pg. 554 at Pg. 640 where he stated as follows:-

As much as possible but more particular in an election petition case involving a quest for an adjudication in respect as to the competence of the election, it must be stressed that every minute matter should be given due consideration so that in a desire to handle the matter expeditiously there may not be a tendency to be over technical in our approach. A wide berth has to be given to the parties and as much as possible it shall be encouraged that such election matters be canvassed on their merits except where there is obvious and manifest irregularity or glaring incompetence which no Court by any stretch of imagination can cause to be restructured. I therefore agree with the opinion in the leading judgment. While on this, it may be considered desirable for Courts to endeavour to explore all reasonable possibilities of not adopting methods that might short-circuit a hearing on mere technicality or narrow constructions in an election petition matter in a developing country like ours and with the nature of our democracy sitting on tender hooks, we cannot be overly careful. To do otherwise may give an ungainly impression erroneously held that the judiciary is part of the political problems when in actual fact, generally speaking it has never been. Let us avoid giving vent to cynicism.” (Underlining Mine)

As I said earlier in this judgment, I agree that the appeal be allowed based on my adherence to the doctrine of stare decisis. In spite of my humble but strong views as stated above, I will not succumb to judicial rascality by arriving at a conclusion contrary to the judgment of the full Court. There must be certainty in the law. See Usman Vs. Umoru (1992) 7 NWLR Pt. 254) Pg 377 at pg. 399. In that case Ogundare, JSC was emphatic on the circumstances wherein this court may depart from its previous decisions. This case does not fall within the categories enunciated. The lower Tribunal must know which law to administer. Appeal Allowed. I abide by all consequential orders.

ALI ABUBAKAR BABANDI GUMEL, J.C.A: I agree.

Appearances

1. S. Awomolo SAN,;
   J.O. Baiyeghea SAN,
   P.O. Ugbogbo,
   El-Utayo Fatore For Appellant

AND

Chief Wale Olanipekun SAN;
Ken Mozia,
Kabir Akingbolu,
E.I. Usoh;
M.O. Bello Osagie
Chief E.L. Akpofure SAN;
L.O. Egboyi;
K.O. Olarewaju (Miss),
Chief C.O. Ihensekhien,
Ayi Obaseki For Respondent