Fasakin Kayode Ajayi & Anor. V. Ajibade Sunday Owolabi & Ors (2009)

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JUMMAI HANNATU SANKEY, J.C.A,

Election into the Ekiti State House of Assembly seat for Ekiti West Constituency II was held on 28th April, 2007. The 1st Appellant was a candidate and he contested on the platform of 2nd Appellant, Action Congress, one of the registered parties in Nigeria. The 1st Respondent was also a candidate at the election and he contested on the platform of the 2nd Respondent, Peoples Democratic Party. At the conclusion of the election, the 3rd Respondent, INEC, declared the 1st Respondent winner having scored the highest votes at the election. The Appellants were dissatisfied with the results as declared and so filed a Petition at the Governorship and Legislative Houses Tribunal for Ekiti State on the 28th May, 2008.

Hearing in the Petition commenced before Panel 1 of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting at Ado-Ekiti. However, while the matter was still part-heard, it was transferred for hearing de-novo before Panel II, still sitting at Ado-Ekiti. After the exchange of pleadings, the 1st and 2nd Respondents filed a Preliminary Objection to the hearing of the Petition wherein they prayed the Tribunal to strike out the Petition on the ground of incompetence premised on the fact that it was presented outside the period of 30 days of the declaration of result as prescribed by Section 141 of the Electoral Act, 2006. After hearing arguments of Counsel on the objection, the Tribunal upheld the objection and, in a considered ruling delivered on the 2nd May, 2008, struck out the Petition on the ground that it was filed one day outside the mandatory period prescribed by Section 141 of the Electoral Act, 2006 and therefore incompetent.

Dissatisfied with this ruling, the Appellants appealed against same vide their Notice of Appeal dated 2nd May, 2008, wherein they complained on six grounds. Arising from these grounds, the Appellants distilled three issues for determination by this Court as follows:

1. Whether the Honourable Tribunal was right by his Lordships’ finding that the Interpretation Act was not applicable and/or cannot be applied to interpret Section 141 (sic) Electoral Act 2006 and thereby include the day of declaration of result in the counting of 30 days within which to file (sic) Petition.
2. Whether the Honourable Tribunal was not wrong by not following the decision of the Supreme Court in the case of YUSUF VS OBASANJO and , the Federal High Court (Civil Procedure) Rules 2000 while interpreting Section 141 of the electoral Act 2006 when the provision of the Electoral Act 2002 interpreted by the Supreme Court is ipsima verba of the provision of section 141 Electoral Act 2006.
3. Whether the Honourable Tribunal was not wrong by His Lordships’ finding that the Petition was filed one day out of time stipulated by section 141 Electoral Act 2006 when the last day falls on Sunday.

The 1st and 2nd Respondents formulated very nearly identical issues thus:

(i) Whether the lower Tribunal was right when it held that the provision of the Interpretation Act, Laws of Nigeria was not applicable to the provisions of Section 141 of the Electoral Act, 2006 in the computation of time for presentation/filing of Election Petition under the Act.

(ii) Whether the Honourable Tribunal was right by not following the decision of the Supreme Court in the case of Yusuf Vs Obasanjo and the Federal High Court (Civil Procedure) Rules 2000 in the computation of time for presentation/filing of Election Petition under the Act. .

(iii) Whether the Petition was properly struck out on the ground of want of jurisdiction by the lower Tribunal.

The 3rd – 75th Respondents, even though duly served through their Counsel, Mrs. Maureen Arinze, neither filed a Respondents’ Brief of Argument nor did they put in a personal appearance or indeed appearance by Counsel in response to the Appeal.

It appears to me that all three issues formulated by each of the parties appearing before the Court are basically the same as they zero in on:

(a) the applicability of the Interpretation Act in the construction of Section 141 of the Electoral Act;

(b) the applicability of the decision in Yusuf V Obasanjo (2003) 10 SCNJ 1 and the Federal High Court (Civil Procedure) Rules to compute time under Section 141 of the Electoral Act; and

(c) the propriety of striking out the Petition by the trial Tribunal.

To my mind, the issues are the same in the way 12 are to a dozen, or 20 to a score, (due apologies to Tobi, JSC in Yusuf V Obasanjo (Supra) at page 11). I shall however take the liberty to juxtapose the issues as follows: