In The Court of Appeal
(Abuja Judicial Division)
On Thursday, the 19th day of February, 2009
Suit No: CA/A/EP/317/2007 (CON)
Before Their Lordships
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RABIU DANLAMI MUHAMMAD |
....... Justice, Court of Appeal |
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UWANI MUSA ABBA AJI |
....... Justice, Court of Appeal |
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MARY PETER ODILI |
....... Justice, Court of Appeal |
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ABDU ABOKI |
....... Justice, Court of Appeal |
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AYOBODE OLUJIMI LOKULO-SODIPE |
....... Justice, Court of Appeal |
Between
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1. MR. DAVID UMARU |
Appellants |
And
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1. DR. MUAZU BABANGIDA ALIYU |
Respondents |
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RATIO DECIDENDI |
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ACTION - CAUSE OF ACTION: When does a cause of action accrue |
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"A cause of action accrues on the date on which the event happened. See N.N.P.C. VS ABOULRAHMAN (20GB) 12 NWLR (PT.993) 202; and ELABANJO VS DAWODU (2006) 15 NWLR (PT.1000) 76." Per AJI, J.C.A.(Pp.44-45, paras.G-A) |
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COURT - JURISDICTION: The relationship between jurisdiction and competence of a court |
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"It is clear from several pronouncements of the Supreme Court and of this court that jurisdiction is very fundamental to adjudication by the courts or a Tribunal on the maters before them. It is most radical as it forms the foundation and/or cornerstone of all litigation. See NIGERGATE LIMITED VS NIGER STATE GOVERNMENT & 2 ORS (2008) ALL FWLR (PT.406) 1938 at 1965. Though there is the tendency to equate "jurisdiction of a court" with its "competence" as if the two mean one and the same thing, the authorities have clearly brought out the point that the "competence" of a court is the hand maiden of the "Court's jurisdiction" and the court must have both "jurisdiction" and "competence" to be properly seized of a cause or matter. A court is said to be "competent" where:- (i) It is properly constituted with respect to the number and qualification of its members. (ii) The subject matter of the action is within its jurisdiction; and there is no feature in the case which prevents the court from exercising its jurisdiction; (iii) The action is initiated by due process of law and (iv) Any condition precedent to the exercise of jurisdiction has been fulfilled. See the cases of DR. IME SAMPSON UMANAH VS OBONG (ARC.) VICTOR ATTAH & ORS (2007) ALL FWLR (PT.346) 402: SOKOTO STATE GOVERNMENT OF NIGERIA & ORS VS KAMDEX NIGERIA LIMITED (2007) ALL FWLR (PT.365) 469: COTECNA INTERNATIONAL LIMITED VS IVORY MERCHANT BANK LIMITED & ORS (2006) ALL FWLR (PART 315) 26 at 43: MADUKOLU VS NKEMDILIUM (1962) 2 NSCC 374 at 379-380: and IBEANU VS OGBEIDE (1994) 7 NWLR (PT.359) 697 at 709. The issue of jurisdictional competence equally received the attention of the Supreme Court in the case of MOBIL PRODUCING NIGERIA UNLIMITED vs LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY & ORS (2003) FWLR (PT.137) 1029. In the lead judgment delivered in the said ease, Ayoola, JSC; dwelling on "jurisdiction" recognized the tendency to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on the ascertainment of facts and stated that this leads to error. It is trite that the law recognizes both "jurisdiction as a matter of procedural law" and "jurisdiction as a matter of substantive law" and it would appear clear that while ''procedural jurisdiction" can be waived by a litigant, no litigant can however waive the issue of "jurisdiction as a matter of substantive law". See in this regard the case of JIKANTORO VS DANTORO (2004) ALL FWLR (Pt.216) 390. In the said case the Supreme Court stated the ready instance of waiver of procedural jurisdiction to be where a litigant submitted to the jurisdiction of the court where a writ was served outside jurisdiction without leave. The Electoral Act 2006 in Section 147(3) vests the court or Tribunal with the power to strike out an election petition on the ground that it is not in accordance with the provisions of Part IX thereof, or the provisions of the First Schedule to the said Act on the motion of a respondent. The challenge to the competence of the instant petition in as much as reliance is being placed on its being statute barred by virtue of the provision of Section 141 which falls within Part IX is a jurisdictional issue which can be raised at any time and cannot be defeated by paragraph 49(2) of the First Schedule to the Electoral Act as argued by the Appellants. We are fortified in our view with the decision of this Court in MUHAMMADU BUHARI & 2 ORS VS CHIEF DLUSEGUN A. OBASANJO & ORS 17 NWLR (PT.850) 423." Per AJI, J.C.A.(Pp.47-49, paras.C-G) |
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ELECTION PETITIONS - NATURE OF ELECTION PETITIONS: Consequence of the very special and different nature of an election petition |
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"The jurisdiction of an election Tribunal to deal with election petitions is of a very special nature different from that in ordinary civil cases. The procedure is largely governed by a law made specifically to regulate the proceedings. That is why the nature of election petition is unique or sui generis and that is why any interpretation that is unique to itself is preferred distinct from the general principles of laws relied upon by the learned senior counsel in the interpretation of Section 141 of the Electoral Act. See ONITIRI VSBENSON (1960) SCNLR 314; OYEKAN VS AKINJIDE (1965) NMLR 381 at 85 and BUHARI VS YUSUF (2003) FWLR (PT.174) 329 at 354-355. It is because of its uniqueness or sui generis nature that any 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. It is not therefore the function of the court to sympathize with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship. That is the function of the legislature. See KRAUS THOMPSON ORGANISATION VS NIPSS (2004) 7 NWLR (PT.901) 44. In IFEZUE VS. MBADUGHA (1984) 1 SCNLR 431, it was held per Aniagolu JSC, that:- "If there is nothing to modify, alter or qualify the language of a statute, it must be construed in the ordinary and natural meaning of the words and sentences used. .....The object of all interpretation is to discover the intention of the law makers which is deducible from the language used. Once the meaning is clear, the courts are to give effect to it. The courts are not to defeat the plain meaning of an enactment by an introduction of their own words into the enactment."Per AJI J.C.A.(Pp.42-43, paras.D-E) |
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COURT - PREVIOUS DECISION OF COURT: Whether courts can depart from decisions that have not been reached per-incuriam or without jurisdiction |
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"This court unlike the Supreme Court is bound by its decision and can only depart from its previous decision when new facts emerged to show that the previous decision was wrongly decided, or was decided per incuriam or that it was decided without jurisdiction. The cases referred to by the learned senior counsel only interpret the provisions of Section 141 of the Electoral Act, 2006 and were properly decided based on the clear and unambiguous provision of Section 141 of the Electoral Act. They were therefore decided on basic and acceptable rules of interpretation and not given per incuriam and were not decided without jurisdiction. A decision can be said to be per incuriam when it was wrongly decided based on a wrong principle of law or the judge or judges were ill informed about the applicable law. This has not been the position in the decisions referred to that this court is now called upon depart. No grounds therefore exist for departure in the circumstances of this case. As a general rule, the only cases in which decisions should be held to have been given per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some features of the decisions or some step in the reasoning on which it is based is found on that account to be demonstrably wrong."Per AJI, J.C.A.(Pp.38-39, paras.F-E) |
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INTERPRETATION OF STATUTE - SECTION 141 OF THE ELECTORAL ACT:Interpretation of Section 141 of the Electoral Act, 2006 |
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"It is now well settled that, the rule of interpretation of statutes is that plain and unambiguous words must be given their natural and grammatical meaning. In SHELL PETROLEUM DEVELOPMENT COMPANY (NiG) LTD VS F.B.I.R. (1996) 8 NWLR (PT.466) 256 at 286 the Supreme Court per Uwais CJC held, "...That if the words of a statue are plain, precise and unambiguous, they should be given their ordinary and natural meaning." Similarly, in ATTORNEY GENERAL ONDO STATE VS ATTORNEY GENERAL EKITI STATE, (2001) 17 NWLR (PT.743) 706, Kutigi JSC, (as he then was) stated:- "It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions (of an enactment) are clear and unambiguous effect must be given to them without resorting to any aid internal or external. It is the duty of the court to interpret the words of lawmakers as used." The words of a statute must be construed in accordance with the intent of the law maker. The primary duty of a court in the interpretation of a statutory provision is to give effect to the words used. See ROSSEK VS A.C.B. LTD (1993) 8 NWLR (PT.312) 382. Section 141 of the Electoral Act is plain, clear, simple and admit of no ambiguity and must therefore be given its ordinary, natural and grammatical meaning. The section simply states that an election petition presented under the Electoral Act shall be presented within thirty (30) days from the date the result of the election is declared. "From" in that provision connotes immediately without any delay. In other words, it means, the event will be reckoned from the stated period. Perhaps, if we may say, that is what gives the section it uniqueness as election matters are sui' generis. It simply means from the happening of the event and in the instant case, the declaration of the election result on the 15th April, 2007. The intention of the legislature is clear and it is that the computation must include the date on which the event happened and that is the declaration of result of the election and time will begin to run from that date and 30 days will include the date on which the declaration was made and in the instant case, the 15th April, 2007. There is no such contrary intention by the legislature as to exclude the date of the happening of the event and in this case the date of the declaration of result of the election. This is based on clear characteristic feature and uniqueness of election petitions. The words "from the date the election result was declared" makes the computation of time with the reference to the happening of the event. In fact this accords with the common sense approach as formulated by Chief Williams in his submission in AKEREDOLU VS AKINREMI's case (supra) and as endorsed by the Supreme Court, which inter alia stated that, where a period of time is prescribed by statute and that period is to be computed with reference to an event which had happened, then the question whether the computation must include or exclude the date on which the event happened, would depend on the true intention of the legislature. In the instant ease, the true intention of the legislature is clear and plain and it is that the computation of time must include the date on which the event happened and in this case the 15th April, 2007 when declaration of result of the election was made. Section 141 of the Electoral Act admits of no any other interpretation. The section cannot therefore be construed for the benefit of the person affected by the interpretation or to the detriment of the person affected by the interpretation. There is no such lacuna in the provision of Section 141 of the Act as to admit of a beneficial or detrimental interpretation with the view to excluding the date on which the event happened. There is in the circumstances no need to resort to the Interpretation Act or the Civil Procedure Rules of the Federal High Court in the interpretation of Section 141 of the Electoral Act. See AGBAI EMMANUEL AGBAI & ANOR VS INEC & ORS (2008) 14 NWLR (PT.1108) 1."Per AJI, J.C.A.(Pp. 39-42, paras. F-C) |
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ELECTION PETITIONS - STATUTE OF LIMITATION: When does time in which to file an election petition begin to run |
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"The time limit for presenting election petition is in the nature of statute of limitation and its intendment is to oust the jurisdiction of the Tribunal once the period prescribed is past. See LAMIDO VS TURAKI (1999) 4 NWLR (PT.600) 578. Time will therefore start to run when the results of the election are declared as the requirement for a valid presentation of election petition has become complete and everything a valid petition may be grounded on has come into existence. Therefore in determining whether an action is statute barred, it is important to determine when time began to run. In FADERE VS ATTORNEY GENERAL OYO STATE (1982) 4 SC 1 it was held; "Time therefore begins to run when there is in existence a person who can sue and another who can be sue and all facts have happened which are materials to be proved to entitle the plaintiff to succeed." Per AJI, J.C.A.(Pp.43-44, paras.G-D) |
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UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory and final decisions of the National Assembly, Governorship and Legislative Houses of Assembly Election Tribunal, Holden at Minna, Niger State as contained in the Ruling delivered on the 22nd day of October, 2007 and the final decision delivered on the 9th day of June, 2008.
On the 14th day of April, 2007, election was conducted by the Independent National Electoral Commission the 3rd Respondent herein into the office of the Governor of Niger State. The 1st Appellant David Umaru was sponsored by the 2nd Appellant, the All Nigeria Peoples Party (ANPP) to contest the said election. The 1st Respondent was also sponsored by the 2nd Respondent, the Peoples Democratic Party (PDP) to contest the election. Other political parties also sponsored candidates for the election, but for the purpose of this appeal, it is irrelevant to delve into their contest as they were never joined in the petition.
At the conclusion of the elections, the 3rd and 4th Respondents on the 15th day of April, 2007, declared and returned the 1st Respondent, Dr. Muazu Babangida Aliyu as the winner of the election having scored majority of lawful votes cast at the election. The Petitioners now Appellants were dissatisfied with the declaration and return of the 1st Respondent as the Governor Elect of Niger State, filed petition on the 15th day of May, 2007 before the National Assembly, Governorship/Legislative Houses Election Tribunal, Minna, Niger State, henceforth simply referred to as the Tribunal, upon the following three (3) main grounds:-
(I) That the 1st Respondent as at the date of the election being 1st April, 2007 was not qualified to be elected Governor of Niger State by reason of having failed to resign from Civil Service of the Federation 30 days to the date of the election contrary to Section 182(1)(9) of the Constitution of the Federal Republic of Nigeria, 1999.
(II) That 1st Respondent who contested on the platform of the 2nd Respondent for the Governorship election did not secure the majority of lawful votes cast at the election and that the 1st Petitioner/Appellant won the said election by majority of lawful votes cast and ought to have been returned.
(III) That the return and declaration of the result by 3rd and 4th Respondents in favour of the 1st Respondent was wrongful because the election was marred and vitiated by widespread~ massive and several electoral irregularities and or malpractices which are substantial non-compliance with the provisions of the 1999 Constitution and Electoral Act and extant regulations and same substantially affected the result of the elections.
The Petitioners/Appellants pray the Tribunal as follows:-
(A) That the results in all the polling units in the local government areas of Niger State mentioned above more particularly Bida, Agaie, Gbako, Edati, Lapai, Lavun, Mokwa, Katcha, Rijau, Magama, and Wushushi, be nullified by reason of the malpractices, noncompliances, irregularities and other electoral offences committed by the Respondents which marred the election in these areas.
(B) An Order of this Tribunal declaring the 1st Petitioner as the Governor Elect for Niger State at the election conducted on the 14h April, 2007 having secured the majority of lawful votes cast in the remaining Local Government, areas of Niger State and was therefore entitled to have been return as the winner of the election.
In the alternative:-
(C) An Order directing the Respondents more particularly the 3rd to 15th Respondents to conduct fresh election in all the polling units in the local government areas mentioned above.
(D) And for such further or other consequential orders necessary to give effect to the orders that the tribunal is empowered to make under the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
The Respondents joined issues with the Appellants by filling their respective replies in which they denied all the grounds of the petition and the matter proceeded to trial.
The 1st Appellant testified and called two witnesses, and tendered 3,500 Exhibits, mostly INEC documents. All the Respondents chose to rest their case on that of the Appellants. Written addresses were ordered. The 1st Respondent in his written address raised the issue of the competence of the petition on the ground that the petition was not filed within 30 days as required by Section 141 of the Electoral Act, 2006.
In a considered judgment delivered on the 9th day of June, 2008, the Tribunal dismissed both the issue on the competence of the petition and the petition itself. This is what the Tribunal held while dismissing the issue on competence of the petition at page 4007 of its judgment in volume X of the record of proceedings;
"As for us, we have no difficulty in resolving this apparent conflict between the two sets of the decision of the Court of Appeal presented to us, in favour of those which say that in computing time for a petitioner to file his petition, both the interpretation Act, and the Civil Procedure Rules of the Federal High Court apply and that the day of declaration of result must be excluded. We find support for this our view in the Supreme Court case of YUSUF VS OBASANJO (supra) cited by learned counsel to the 1st Petitioner in his reply address.
In dismissing the petition, the Tribunal held at page 4069 of volume X of the Record of Appeal thus;
"Having considered this petition very carefully, we hold that the election to the office of the Governor of Niger State held on the 14th day of April, 2007 was conducted in substantial compliance with the provisions of the Electoral Acts 2006 that the 1st Respondent was qualified to contest that election and was dully returned as the winner by a majority of lawful votes cast at the election. We consequently order that this petition be and is hereby dismissed."
Being dissatisfied with this judgment, the Appellants filed two Notices of Appeal. The first notice of appeal containing five grounds of appeal was filed on the 10th day of June, 2008. The second notice of appeal containing twenty-three grounds of appeal was filed on the 28th June, 2008. The Appellants, in their amended brief of argument deemed filed on the 28th day December, 2008 abandoned the first Notice of Appeal filed on the 10th June, 2008 and adopted the second Notice of Appeal filed on the 28th June, 2008 containing twenty-three grounds of appeal. This they are at liberty to do. See THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, AMORCH (NIG) VS HENRY O. AWONIYI & ORS (1994) 7 NWLR (PT.355) 154; and TUKUR VS GOVERNMENT OF GONGOLA STATE (1988) 1 NWLR (Pt.68) 39. An Appellant can validly withdraw one of two notices of appeal and then proceed to argue his appeal on the other remaining notice of appeal. Consequently, the Appellant's notice of appeal filed on the 10th June, 2008 is deemed abandon and accordingly struck out. From the grounds of appeal filed on the 28th June, 2008, the Appellants distilled ten issues for determination, as set at hereunder:-
1. Whether having regard to the state of the pleadings and the evidence led in the circumstances of the case the tribunal rightly held that the 1st Respondent was qualified under Section 182(1) (g) of the Constitution to contest the Governorship Election conducted in Niger State on the 14th of April, 2007? (Grounds 1-81 14).
2. Whether the tribunal acted upon legal principles in admitting Exhibits H1 and R2 which were not supported by any pleading. (Ground 9).
3. Whether the tribunal was right in rejecting the public service rules and the petitioners evidence based on it on the ground that they were not supported by pleadings.
(Ground 10).
4. Whether the evidence of the 1st petitioner and the testimony of PW1 were hearsay because they were not present when the duly certified Public documents testified upon were made (Ground 12).
5. Whether having regard to the lawful votes cast at the election, the tribunal ought not to have returned the 1st Appellant as the duly elected Governor of Niger State (Ground 13).
6. Whether the tribunal did not set up a different case for the Respondents by holding that paragraphs 5 and 6 of the petition was vague when the Respondents adequately joined issues on same. (Ground 15).
7. Whether the tribunal did not miscomprehend and misapply the decision in BUHARI v. OBASANJO in the light of the proviso to Section 144(2) of the Electoral Act 2006 which miscomprehension and misapplication occasioned serious miscarriage of justice (Ground 17).
8. Whether the tribunal was right in holding that there were no sufficient facts remaining to sustain the petition upon abandonment by the Appellants of averments dealing with criminal allegations (Ground 22).
9. Whether the evaluation of evidence by the tribunal is not perverse, not contrary to sound legal principles and ought not to be set aside having regard to the state of pleadings and evidence before it. (Ground 16).
10. Whether tribunal properly guided itself in determining which votes were valid and which were invalid, in deciding who scored majority of lawful votes on the basis of evidence adduced before the tribunal. (Grounds 11, 18, 19, 20, 21, 23).
The 1st and 2nd Respondents in their respective amended briefs of argument adopted the issues for determination as formulated by the Appellants. The 3rd-15th Respondents on their own part formulated only three issues for the determination of the appeal. They are as follows:-
(i) Whether the 1st Respondent was qualified to contest election into the office of Governor of Niger State held on the 14th day of April, 2007.
(ii) Whether the election of the 1st Respondent as Governor of Niger Slate on 14th April, 2007 was invalid by reason of corrupt practices and noncompliance with the provisions of the Electoral Act, 2007.
(iii) Whether the 1st Respondent was duly returned as winner of the election to the office of the Governor of Niger State by a majority of lawful votes cast at the said election.
The 1st Respondent filed his notice of Cross-Appeal on the 25th day of June, 2008 containing a lone ground of appeal and formulated a alone issue for determination, to wit;-
"Whether the election Petition filed on the 15th day of May, 2007 in respect of the Governorship Election held on the 14th April, 2007 is competent having regard to the provisions of Section 141 of the Electoral Act."
The Appellants/Cross Respondents seemed to have adopted the one issue formulated by the 1st Respondent/Cross Appellant.
In the 3rd Cross Respondent's brief, Rotimi Ojo, Esq., formulated this one issue for determination:-
Whether the 1st and 2nd Respondents complied with the provisions of Section 141 of the Electoral Act, 2006 in filling the petition.
The 4th-15th Cross Respondents also formulated a lone issue to wit:-
"Whether the Election Petition filed on the 15th May, 2007 is competent having been filed outside the thirty (30) days period prescribed by the Electoral Act, 2006?"
At the hearing of the appeal on the 14th January, 2009, learned senior counsel for the Appellants, Chief Ahamba, SAN, adopted his brief of argument in respect to the interlocutory Appeal No: CA/A/EP/317/2007, filed on the 23rd November, 2007 and urged the court to allow the appeal.
Ayodele, SAN, for the 1st Respondent adopted and relied on the 1st Respondent's brief in the interlocutory appeal dated 7th December, 2007 and filed on the 10th December, 2007 in its entirety and urged the court to disallow the appeal and dismiss same. The 2nd Respondent's Counsel Rotimi Ojo Esq., adopted the 2nd Respondent's brief dated the 11th January, 2008, but abandoned the preliminary objection and urged the court to disallow the appeal and dismiss same. Dr. S. S. Ameh, SAN, for the 3rd to 15th Respondents adopted the brief of argument he filed on the 14th January, 2008 and urged the court to allow the appeal.
With respect to the main appeal, No.CA/A/A/EP/232/2008, the learned senior counsel for the Appellants, Chief Ahamba, SAN, adopted the Appellants' Amended brief of argument deemed properly filed on the 11th December, 2008 by order of this court granted on the same day. He also relied on the Appellants' Reply brief to the 1st Respondent's brief filed on the 4th November, 2008. In respect of the 2nd Respondents brief of argument, Chief Ahamba, SAN, adopted the Appellants' reply brief in respect of same filed on the 4th November, 2008. In respect of the 3rd - 15th Respondents Amended brief of argument, he adopted the reply thereto filed on the 4th November, 2008.
With respect to the cross appeal, the learned senior counsel for the Appellant adopted and relied on the Appellants' Cross Respondents' brief of argument filed on the 16th November, 2008 and deemed properly filed on the 17th December, 2008. He adopted all the processes filed and urged the court to allow the appeal and dismiss the cross appeal.
The 1st Respondent filed an amended brief of argument dated 9th January, 2009 but deemed properly filed on the 14th January, 2009, in response to the Appellant's amended brief of argument and urged the court to dismiss the appeal.
On the cross appeal, learned senior counsel adopted and relied on the Cross Appellant's brief dated 9th January, 2009 and deemed properly filed on the 14th January, 2009 and urged the court to allow the cross-appeal.
Rotimi Ojo, Esq., for the 2nd Respondent adopted and relied on the 2nd Respondent's amended brief of argument dated 8th January, 2009 and filed on the 9th January, 2009 but deemed properly filed on the 14th January, 2009. He also relied on a preliminary objection founded on ground 9 of the amended notice of appeal. The learned counsel, urged the court to strike out ground 9 of the grounds of appeal founded on the admissibility of Exhibits R1 and R2 and to also dismiss, the appeal.
The 3rd Cross Respondent, adopted its brief of argument filed on the 31st October, 2008 and urged the court on the authority of HABU IBRAHIM VS IBRAHIM SHEHU SHEMA, unreported delivered on the 7th January, 2009 in appeal NO.CA/K/EP/G