Introduction:
All over the Election petition Tribunals
constituted to question the validity of Elections into various offices in Nigeria,
the issue of competence of election petitions are being canvassed on the point,
among others, that such petitions were filed out of time. The regularity and
tenacity of contests bothering on election Petitions being filed out of time stem
from the fact that where the respondents succeed in establishing that an
election petition was filed out of time, the petition is liable to be struck
out as being incompetent which incompetence goes to rob the Election Petition
Tribunal of jurisdiction in the matter. Election Petition cases are by their
very nature sui generis and by this,
the general law which govern ordinary civil cases are either dispensed with or
modified in matters relating to election petitions.1
In Nigeria there are various provisions
in the Rules of the various courts allowing a party who is out of time in doing
a thing for which time is limited to seek an enlargement of time to do the act2.
However in election petition cases, time is of essence. For instance, Section
141 of the Electoral Act, 2006 provides that “An Election Petition under this Act shall be presented within 30 days
from the date the result of the election is declared”
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1. Paragraph 50 of the 1st
Schedule to the Electoral Act, 2006 which provides for the application of the
Federal High
Court {Civil Procedure} Rules,
2000 to proceedings of Election Petition Tribunals
2. Order
44 of the High Court (Civil Procedure) Rules of Anambra State,
2006; Order 7 Rule 10 Court of Appeal Rules, 2007
Section 141 of the Electoral Act, 2006 made
use of the word “shall” in limiting the time within which an election petition
must be presented. That makes it mandatory that a petition must be present within 30 days of the declaration of
result of the election. By the above provisions, the time of presenting any
election petition becomes of essence as any petition presented outside 30 days
after the result of the election has been declared is rendered incompetent by
the operation of time and therefore statute barred3.
Unfortunately, however, the Electoral Act,
2006 and its predecessors4 which made provisions for the filing of
election petitions within 30 days from the date the result of the election was
declared did not provide a guide as to the computation of the 30 days period
limited for filing election petitions. The short comings of the electoral
statutes in stating the meaning of the 30 days limited by them for filing
election petitions placed a burden on the judiciary to interpret and give
effect to the said provisions. However, it is humbly submitted that our courts,
particularly, the Court of Appeal left litigants in much confusion as to what
the law is on this all important subject matter as there are conflicting
judicial decisions on computation of
time for filing an election petition.
__________________________________________
3. Agbai
v. INEC (2008) 14 NWLR (pt. 1108) 417 at pp 430 – 434; Prince Chinedu Emeka v.
Joy Emordi (2004) 16 NWLR (pt. 900) 433 at 450.
4. See Section 132, Electoral Act,
2002
Statutory
provisions
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.
Order 23 of the Federal High Court (Civil
Procedure) Rules, 2000 provides that:
Where by any written law or any special order made by
the Court in the course of any proceedings, limited time from or after any date
or event is appointed or allowed for the doing of any act or the taking of any
proceeding, and the time is not limited by hours, the following rules shall
apply-
i.
The limited time
does not include the day of the happening of the event, but commences at the
beginning of the day next following.
ii.
The act or
proceeding shall be done or taken at latest on the last day of the limited
time;
iii.
Where the time is
less than five days, public holiday, Saturday or Sunday shall be reckoned as
part of the time.
iv.
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 nor being a public holiday, Saturday or Sunday.
The provisions of Order 23 of the Federal
High Court Rules, 2000 are on all fours with the provisions of Section 15
(2)(a) of the Interpretation Act,1990.
Interpretation
of the relevant statutory provisions by the courts
One major issue that always come up in the
contests regarding computation of time in election petitions is the import of
the words “shall be presented within 30 days from …” in S. 141 of the Electoral
Act, 2006 and other enactments similar to it.
One line of authorities have held on the
issue that by virtue of the said provisions in Section 141 of the Electoral
Act, 2006 and others like it, the 30 days allowed for the presentation of an
election petition starts running from the day the result of the election was
declared. Such decisions were seen in cases like Ogbebor vs. Danjuma;5 Alataha v. Asin;6. Action
Congress & anor vs. Jonan David Jang7. Ugbane Hussein8
It is trite law that where the words used in
the provisions of a statute are clear and unambiguous, a court must accord such
words used their ordinary and grammatical meaning without any colouration and
that the intention of the law maker can only be found in the words used by the
legislators in framing the provisions under consideration see Ladoja v. INEC.9
___________________________________________
5
(2003) 15 NWLR (pt. 843), 403 at 426 – 427 paras G – A;
6. (1999)
5 NWLR (pt. 601) 32
7. (2009) 4 NWLR (pt. 1132) 475 at 508
– 509 paras B – D.
8. (2009)
5 NWLR (pt. 1135) 530 at p. 544
9. (2007)
12 NWLR (pt. 1047) 119 at 187 para H
The case of interpretation of the provisions
of Section 141 of the Electoral Act, 2006 has unfortunately attracted an
entirely different approach to the detriment of litigants, their Counsel and
the generality of the Nigerian people who would have benefited from the
existence of certainty and stability in the laws on election petition. A
literal interpretation of the provisions in question seemed difficult as seen
in the conflicting decisions on time to file election petition.
The position of the
Supreme Court rightly followed in some other decisions.
In Alhaji
Muhammed Dikko Yusufu & Anor v Chief
Aremu Olusegun Obasanjo & Ors10. The result of the election was declared 22nd April, 2003,
The appellants filed their petition on 2nd of May, 2003, well within
time. Thereafter, the appellants brought an application to amend same on 22nd
of May, also within time. The application brought within time was fixed
for hearing on a date well outside time limited for filing election petitions
or making substantial amendments to same. The Court of Appeal considered the
application and held that it was time barred and rejected it. On further appeal
to the Supreme Court, the Supreme Court held on computation of time to file an
election petition as follows:
Section
132 of the Electoral Act, 2002 provides that an election petition may be
presented within 30 days
________________________________
10. (2003) 16 NWLR (pt. 847) 554 P 608
Paras G - H and 609 paras A – C see also Auto Imp. Exp v. Adebay (2002) 12 S.
C. (pt. 1) 158 at 163. where the Court held that: “It is common ground that the
decision of the Court of Appeal was delivered on the 1st of July, 1996. Accordingly,
in computing the period for the filing of the appeal against that judgment, the
date 1st July,
1996 on which the Court of Appeal delivered its judgment must be
excluded. Consequently, the calculation must commence on the 2nd of July, 1996 and
three months from that date would ordinarily end at the midnight of 1st October, 1996. See also
Afribank Nig. Plc v. Akwara (2006) All FWLR (pt. 404) 401 at 416.
from
the date the result of the election is declared”. Its not in dispute that the
Presidential election result in question was declared on 22nd April, 2003. The
petitioners in this case had 30 days within which to appeal against it. The 30 days will be calculated from 23rd
April to end on 22nd
May, 2003. Paragraph 50 of the First Schedule Electoral Act,
provides that subject to the express provisions of the Act, the Civil Procedure
Rules of the Federal High Court shall apply mutatis mutandis, in
relation to an election petition.
Order
XII Rule I of the said Rules provides inter alia.
“1. Whereby any
enactment or any order or rule of Court, any special order of the course (sec)
of the Court, 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 proceeding, and such time
is not limited by hours, the following rules shall apply.
a. The
limited time does not include the day of the date of or the happening of the
event, but commences at the beginning of the day next following that day;
b. The act or
proceedings must be done or taken at latest on the last day of the limited
time”.
Section
15(2)(a) of the Interpretation Act (Cap 192) Laws of the Federation of Nigeria,
1990 made similar provisions. See also Nnonye v. Anyichie (1989) 2 NWLR (pt. 101)
110 at pp 120- 121. The petition was filed on 2nd May well within
time. Any amendment to the petition must be made not later than 22nd
May which was the last day of the limited time.
It was stated Per Uwaifor JSC in the same
case that:
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 petition was filed on 21st May, 2003.
Reducing that to arithmetical details, since the result of the election was
declared on 22nd April, and the motion for amendment was filed on 21st May 2003,
the motion was presented within 30 days from the date of declaration of result
of the election.
In Bertrand
Nnonye v Chief D. N. Anyichie & ors11 it was held on
computation of time for filing election petitions per Uwaifo JCA (as he then
was) that:
But even assuming that the document filed on 13 January,
1988 were a petition, the learned Judge was in error to have held that it was
filed within time. The relevant paragraph 2 of the schedule 3 itself does not
take the date of the election, that is, 12 December, 1987 into account for the
computation of one month. So the computation starts from 13 December as the
first day. Therefore taking 31 days as a month, December being a month which
ends on 31st and calculating from 13 December, the last day for
filing the election petition was 12 January, 1988. The same result is achieved going by the
authorities. Under section 18 of the Interpretation Act, Laws of the Federal Republic
of Nigeria,
1964, “month” means a calendar month reckoned according to the Gregorian
calendar.
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11. (1989) 2 NWLR (pt. 101) 110 at p 120 para F- G, P 121, para A – F
Also under the Rules of Supreme Court, order 3 rule 1 of
England,
it means calendar month unless the context otherwise requires. In Radcliffe v.
Bartholomew (1892) 1 Q.B. 161, the question arose as to the interpretation to
be given to section 14 of the prevention of Cruelty to Animals Act which
enacted that “every complaint under the provisions of this Act shall be made
within one calendar month after the cause of such compliant shall arise”. It
was held that the day on which the alleged offence was committed was to be
excluded from the computation of the calendar months within which the compliant
was to be made and that the complaint which was laid on June, 30 in respect of
an alleged offence committed on May, 30 was within time. It would have been out
of time on May, 31.
In the case of the South Staffordshire Tramways Co. Ltd.
v. The Sickness and Accident Assurance Association Ltd. (1891)1 Q.B. 402 the
plaintiffs, a tramcar company, effected with the defendants an insurance
against “claims for personal injury in respect of accidents caused by vehicles
for twelve calendar months from November 24, 1887”, to the amount of £250 in
respect of any one accident. On November 24, 1888, one of the plaintiffs’ tramcars was
overturned, forty person were injured, and the plaintiffs became liable to pay
claims to the amount of £833. it was held that in order to calculate the period
of twelve calendar months, the November 24, 1887 was excluded and the date
November 24, 1888 was included. In the same way in the present case, 12
December, 1987 would be excluded but 12 January, 1988 would be included, being the last day in the one month allowed
after 12 December, 1987 to present an election petition under paragraph 2 of
schedule 3 to Decree No. 37, Local Government Elections Decree 187 and not 13
January, 1988 which was outside the one month. On the state of the authorities,
the election petition in suit No. AA/LGE.8/88 pending at the Amawbia/Awka High
Court at Awka is such as further proceedings therein should be stayed until the
determination of the appeal filed against the ruling of that Court dated 21
June, 1988 now pending in this Court.
Furthermore in the
case of Stewart v. Chapman12
it was held that:
where a period of time is specified to start coming to
the appropriate place running “from” a particular date, the specified date is
excluded in the computation of time, time begins to run from the following day.
In the case of Kamba V Bawa13, it was held by the court of
Appeal Jos Division that time started to run in an election petition which
result was declared on 13th April 2003 from 14th April,
2003. The court stated that:
There being no dispute by the parties that the result of
the election was declared on the 13th day of April 2003, the thirty
(30) days prescribed by section 132 of the electoral Act, 2002 within which the
petition must be
presented started to run from 14th April,
2003 to 13th day of May, 2003 see section 15(2) (a) of the
Interpretation Act.
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12. (1951) 2QB 792
13. (2005) 4 NWLR (pt 914) 43 at 78,
paragraph H
Doctrine
of stare decisis in Nigeria
There is no doubt that the sources of our laws
in Nigeria
include case law. Case law refers to the body of principles and rules of law
which, over the years, have been formulated or pronounced upon by the courts as
governing specific legal situations to an extent that they are recognized as
binding in such circumstances.
The fact that laws could emanate from the
courts seem, (at least from the perspective of the lay person), to contradict
the principles of Separation of Powers which confine the judiciary to
interpretation of laws while the legislature makes laws. It is therefore
understood generally that the courts simply apply the laws as the situation
demands. However, while the judiciary do not make laws, the Judges are not
altogether, mindless robots, that are programmed to perform functions
mechanically. Where a legal problem arises for which there are no adequate
provisions in the existing laws, there has to be a way out, the courts are
encouraged in such situations to formulate fresh rules of law or extend the
existing ones to deal with such novel cases. Equally, it is one of the rules of
interpretation that legislative enactments should be interpreted ut res magis valeat quam pereat, that is
to say, that where an enactment is capable of double interpretation, the court
should adopt the interpretation that shall serve the purpose of the law rather
than the one that shall defeat it. It is in the interest of the public that, as
much as is possible, election petitions should be heard rather than be thrown
away14.
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14. Buhari v. Obsanjo (2003) 17 NWLR (pt.
843) 236; Balonwu v. Ikpeazu
The existence and
operation of case laws is grounded on the operation of the doctrine of judicial
precedents which itself depends on the hierarchy of courts. A precedent simply
means taking an earlier case or decision as a guide or basis to determine later
cases that are on similar facts. The doctrine of judicial precedent also called
stare decisis implies that not only
are judicial decisions binding on all the courts below the court that made the
decision, it is also binding on the same court that made the decision since
courts do hardly depart from their earlier decisions on similar issues except
for good reasons. This practice is considered necessary to secure the stability
and certainty of the legal system.
In the present
arrangements in the country, the Supreme Court of Nigeria is the highest court
in the land, beginning from 1963 when appeals stopped going from Nigeria
to the Privy Council15. Section 6(5) of the 1999 Constitution which
listed the courts in Nigeria in a hierarchy placed the Supreme Court as the
highest court in the land and went ahead in Section 287(1) to provide it in so
many words that the decision of the Supreme Court shall be enforced all over
the Federation on all authorities and persons and by courts with subordinate
jurisdiction to that of the Supreme Court.
Immediately below the Supreme Court of Nigeria in the hierarchy of
courts is the Court of Appeal. The Court of Appeal is bound to follow the
decisions of the Supreme Court which are not yet overruled and which do not
conflict with other decisions of the Supreme Court.
____________________________________
15. See Sections 6 (5), 287(1) 1999
Constitution, See also Akerodolu v.
Akinremi (1985) 2 NWLR (pt. 10) 787.
The Court of Appeal is in addition to that
bound by its own past decision16. The Court of Appeal, though made
up of several divisions is considered as one court, to the effect that every
decision of a competent panel in any division of the Court of Appeal is to be
treated as a decision of the court.17
In the case of Mohammed Dikko Yusuf v. Chief Aremu Olusegun Obasanjo18,
It was held by the Supreme Court that the 30 days time limited for filling
election petition starts to run from the next day after the result of the
election was declared. It is doubtful whether that decision of the Supreme
Court has been overruled or is in conflict with any other decision of the
Supreme Court.
With the greatest humility, it is a surprise
that the Court of Appeal has consistently ignored this decision of the Supreme
Court and has, in its several decisions to the contrary, held that time starts
to run, for purposes of filing election petitions, from the day the result of
the election was declared. It is trite law that on every issue on which a decision
of the Supreme Court exists, there is law on that subject matter which ought to
guide the Court of Appeal in its decisions on that subject matter. In the case
of Ganiyu Gbadamosi & anor v. State19.
_____________________________
16. See Fatola v. Mustapha (1985) 2 NWLR (pt. 8) 435, Bello v. N. B. N. Ltd18 (1992) 6
NWLR (pt. 213) 206.
17. See
Section 237 of the 1999 Constitution, see also Megwalu v. Megwalu (1996) 2 NWLR
(pt. 407) 104; Senate of the National Assembly v. Tony Momoh (1983) 4 NCLR 269.
18. (supra)
19. (1991)
9 NWLR (pt 266)465
The Court of Appeal ignored the decision of
the Federal Supreme Court in R v. Igwe
& Ors.20 and treated the issue of trial within trial as if
it was not part of our laws. The Supreme Court did not take kindly to such an
attitude of the Court of Appeal when the matter got to the Supreme Court on
further appeal.21 The Supreme Court had this to say, per Uche Omo JSC:
…I share the views of the learned Justices of the Court
of Appeal as to the problems surrounding this procedure; but secondly; that the
procedure is now very much part of law vide
R v Igwe (1960) SCNLR 158 that it can not be overlooked or decreed into
illegality by the Court of Appeal. The learned Justices of the court of Appeal
were with respect, very wrong to have done so in the face of decisions of this
court which has made this procedure mandatory, and part of the law.
The import of the decision of the Supreme
Court quoted above and which accords with the doctrine of judicial precedent is
that once the Supreme Court pronounces on any subject matter, there is a law on
that subject matter. Assuming, however, that the Supreme Court decision in Yusufu v. Obasanjo22 do not
exist, the Court of Appeal is yet bound by its own decision in Bertrand Nnonye v Chief D. N. Anyichie
& ors23
_____________________________
20. (1960) 5 FSC
21. See Gbadamosi & Anor v State (1992)
(supra) at pp497-498,paras G-C,
22. (supra)
23. (supra)
The Court of Appeal has not yet overruled
its said decision which it indeed followed in Kamba v Bawa24 and yet it went ahead to behave in
numerous other cases as if such a decision does not exist.
One may be tempted to argue, as is always
argued against the rule of stare decisis,
that the said decision of the Court of Appeal being archaic, may have been
overtaken by time and therefore do not afford solutions to modern problems.
That point may be a disadvantage in the application of the rules of judicial
precedent, yet departure from judicial decisions may not be justified on ground
of antiquity alone. In Okpala v. Okpu25,
Counsel described the decision of the Supreme Court that has lasted for three
decades as “archaic” and urged the court not to follow it.
The Supreme Court however, held that a case
does not lose its value as a judicial precedent merely on the ground of age, according
to the court26
As a matter of law, a case which has survived the test
of judicial precedent is recognized as stable, if decided by the highest court
of the land and will receive the adoration of the lower courts until overruled
by the highest court. But until it is overruled, it represents the state of the
law. In my humble view, the older a case, the maturer it is….
______________________________
24. (supra)
25. (1985) 3 NWLR (pt. 14) 217.
26.
at Page 219
It is therefore a surprise that the Court of
Appeal and Election Petition Tribunals under it are going about deciding the
question of computation of time for filling election petitions as if that
decision of the Supreme Court does not exist.
The
departure from judicial precedent
The Court of Appeal in interpreting the word
“within” in Ogbebor v. Danjuma27
held that Section 132 of the Electoral Act, 2002 provides in no uncertain terms
that:
… an election petition under this Act shall be presented
within thirty (30) days from the date the result of the election is declared”.
To my mind, the operative words therein are “shall be presented within (30)
thirty days” when used relative to time, the word “within” has been defined
variously as meaning any time before; at or before; at the end of; before the
expiration of; not beyond; not exceeding; and not later than see Black’s Law
Dictionary, 6th Ed. In other words, an election petition must be
presented any time before the expiration of 30 days or more concisely put, not
later than 30 days from the date the result of the election is declared.
It is interesting that in Ogbebor’s case
(supra), the Election Petition Tribunal had earlier relied upon the
Interpretation Act, 1990 to declare the election petition competent when it
held that time started running on the day following the day the result of the
election was declared.
_________________________________
27. (supra)
at page 432, paras D – E . The decision in Ogbebor v. Danjuma was
followed by the Court of Appeal, Benin Division in Silas Bounwe v. Resident
Electoral Commissioner, Delta State & ors (2006) 1 NLWR (pt. 961) 286
On appeal however, the Court of Appeal,
Benin Division overruled the election petition tribunal and held that:
The 30 days allowed for the presentation of the petition
starts running from the date the result was declared and that the petition was incompetent, the
tribunal lacks the jurisdiction to try the matter, it is simply as if no
petition was presented to it
In
Alataha V Asin28, what was under consideration was S. 82 of
Decree No. 36 of 1998 which provides that an election petition under it must be
presented with 14 (fourteen) days from the date the result of the election was
declared. The Court of Appeal, per Salami JCA stated:
The time therefore began to run in this case on 7th
December 1998 when Exhibit R1 was issued declaring the 1st
Respondent “as being the winner of the election”. The Time to sue was up on
that day because from that day the petitioners could present their petition
against the respondents as all the material facts required by them to prove
their case had happened …
With due humility, it cannot be reconciled that
cases such as the ones above were decided under the present state of our laws
and even of greater surprise are recent decisions such as the ones in
cases like Action
Congress & 2 ors v Jonah David Jang & 9 ors29 which was
decided in 2009.
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28. (1999) 5 NWLR (pt. 601) 32 at page 43,
paras D – E; Boni Haruna v. Modibo (2004) 16 NWLR (pt. 900).
29. (2009) 4 NWLR (pt. 1132) 475 at 508 –
509 paras B –D.
Very instructive are the views expressed by
Hon. Justice Nwali Sylvester Ngwuta who delivered the lead judgment of the
Court of Appeal in the case of Action
Congress & 2 ors V Jonah David Jang & 9 ors30. The
learned Justices of the court of Appeal stated inter alia that:
Based on the above and the essence of time in the
disposal of electoral matters, I have come to the conclusion that the use of
the word “from” in S. 141 the Electoral Act, 2006 means from the day, and
includes part thereof, the result of the election was declared. The 30 days
period stipulated in S. 141 of the Electoral Act started from 18th
April, 2006 on which the result was declared without prejudice to the time the
result was actually declared in so far as it was declared within the 24 hours
of the day in question. In the context of S141 of the Electoral Act, 2006 the
word “within” contemplates the purport of the word “from” in the said section
of the electoral Act.
The word “within” means that an election petition
arising from the April 14th 2007 election to the office of Governor
of Plateau state of Nigeria must be presented any time between the 16th
day of April, 2007 and 15th day of May 2007, 30 days from 16/4/07 on
which the result was declared and inclusive of both dates. The trial Tribunal
was right to have held that the petition was filed out of time but having
determined that it has no jurisdiction same should have struck it out rather
than being dismissed.
______________________________________
30. (Supra)
Subject to the substitution of order of dismissal with
order for striking out, I resolve issue one in favour of the respondent. The
election Petition presented on 16/5/07
against the result declared on 16/4/07
is statute barred, having been filed outside and not within the 30days period
from the date of declaration of the result of the election.
The Court of Appeal, Jos Division, still
proceeding in the perpetuation of the confusion in this area of the law, held inter alia in the case of Barr. Mohammed Umaru Kumaila V Senator Ali
Modu Sherif & ors31 that:
In the circumstances, we hold that time began to run on
15th April, 2007 i.e the day the result of the Governorship election
was declared. It is not in dispute that the result of the election was declared
on the 15th day of April, 2007. It is also common ground that the
petition was presented on 16th May, 2007. Since the Petition was
filed on 16th may, 2007, the petition was filed 2 days outside the
mandatory period stipulated by section 141 of the Electoral Act, 2006. The
petition is therefore statute or time barred
__________________________________
31. (Unreported judgment) delivered in
CA/J/EP/Gov/24X/2007 on 21/1/2008..
The same Court of Appeal, Jos Division, in
yet another leading judgment delivered by Nwali Sylvester Ngwuta in INEC & 13 ors v Alhaji Abubakar Hashidu
& Alhaji Mohammed Danjuma Goje32 held inter alia:
In view of the above, I accept the argument of the
learned silk for the cross appellants that the petition No EPT/GN/Gov/1/2007
presented on the 15th day of May 2007 was presented after the
expiration of the 30 days period prescribed in section 141 of the Electoral
Act, 2006. It is statute – barred and Ipso facto incompetent.
It is doubtful whether the attention of the
Court of Appeal Jos Division was drawn to the earlier decision of the same
Division of the Court of Appeal in the case of Kamba V Bawa33 which decision is totally different from
the later decisions. The court of Appeal Jos Division would have reviewed that
authority and expressly overruled itself as required by the doctrine of stare decisis. The court regrettably did
not follow that procedure in its later decision even though the decisions were
made by a full court of 5 Justices.
Furthermore, it is doubtful whether the
Court of Appeal had adverted its mind to the provisions of paragraph 50 of the
1st Schedule to the Electoral Act, 2006 which expressly referred to
the Federal High Court (Civil Procedure) Rules, 2000 for matters of
__________________________________
32. (Unreported
judgment) delivered on 15/06/2008
in CA/J/EP/GOV/317/2009: INEC & 13 ORS v. Alhaji Abubakar Hashidu &
Alhaji Mohamed Danjuma Goje See particularly
page 13.
33. (supra)
procedure in election petitions as well as
the provisions of Section 15 (2) of the Interpretation Act, 1990 which laws agree with each other in
their provisions that time on this issue starts to run from the day after the
day the result of the election was declared.
If the Court of Appeal was not aware of the
provisions of Order 23 of the Federal High Court (Civil Procedure) Rules, 2000
and the Interpretation Act, then it has, with respect, fallen into a pardonable
error in law. If, however, the Court of Appeal was aware of the provisions of
Order 23 of the Federal High Court Rules and the Interpretation Act and yet
ignored them in interpreting the provisions of Sections 132 of the Electoral
Act, 2002 and Sections 141 of the Electoral Act, 2006 in those cases then it is
doubtful whether the court has not deliberately allowed itself to grope in the
dark on a matter on which both the Electoral Acts, 2002 and 2006, the Federal
High Court Rules, 2000, the Interpretation Act, 1990 and Supreme Court
decisions have made clear and unambiguous provisions.
It is submitted respectfully that the
decision of the Court of Appeal in Kamba
v. Bawa34 and Bertrand Nnonye
v Chief D. N. Anyichie & ors35 which are in accord with the
decision of the Supreme Court in Yusufu
v. Obasanjo36 and English authority of Stewart v. Chapman are
correct interpretations of Section 141 of the Electoral Act, 2006 relying on
the provision of Order 23 of the Federal High Court Rules, 2000 (now
__________________________________
34. (Supra)
35. (Supra)
36. (Supra)
Order 48 of the Federal High Court (Civil
Procedure) Rules, 2009), as well as Section 15(2)(a) of the Interpretation Act.
The other conflicting authorities seem to have discarded the reference made in
paragraph 50 of the 1st Schedule to the same Electoral Act, 2006 to
the Federal High Court (Civil Procedure) Rules for matters of procedure in
election petition proceedings.
It is gratifying to note however, that the
National Assembly of the Federation, on realizing this seeming departure from
the law, brought in an amendment to clarify the position. The Electoral Act,
2011 provides in Section 134 that:
134 (1) An
election petition shall be filed within 21 days after the date
of the declaration of results of the
election...
A perusal of the entire Section 134 of the
Electoral Act, 2011 will reveal that the entire provision is aimed at ensuring
a timely presentation of election petition (within 21 days rather than the 30
days in the Electoral Act, 2006) as well as ensure an accelerated hearing and
determination of election petitions and appeals. However, Section 134(1) of the
Electoral Act, 2011 is commendable for its clarity and precision in limiting
the time provided for presentation of petitions to the extent that it states
clearly that time starts running for the purpose of filing election petitions
from the next day after the declaration of result of the election. However, the
problems created by the conflict in the interpretation of the provisions
limiting time for filing election petitions is capable of being extended to
other provisions limiting time for taking steps such as amendment and others,
in election petitions. The need therefore remains compelling that the Court of
Appeal should overrule its decisions that are conflicting with both the
enactments and Supreme Court authorities on computation of time. Bringing
clarity into this area of the law shall save the harrowing experience suffered
by both counsel and litigants each time petitions are struck out on account of
non-compliance with time provisions.
CONCLUSION
As a matter of public policy, there ought to
be the tendency to hear election petitions on their merit rather than allow
them to be defeated on mere technicalities. In the long run, it is in the
interest of the public that elections are conducted in compliance with the
relevant laws. Statutes bothering on
computation of time ought to be construed liberally so as to allow litigants
have assess to court to ventilate their claims rather than shut them out on a
strict construction of such statutes.