Oniwara B. Ibrahim V. Ishola Balogun Fulani & Ors. (2009)

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CHIMA CENTUS NWEZE, J.C.A

The appellant herein was the petitioner at the Governorship and Legislative Houses Election Petition Tribunal, Ilorin, Kwara State [hereinafter referred to as the lower tribunal). He was, equally, a candidate in the election which the third-fifth respondents conducted on April 15, 2007. The electoral contest was for a seat into the Ilorin South Constituency of the Kwara State House of Assembly. He contested on the platform of the Democratic People’s Party [DPA].

On the said April 15, 2007, the third -fifth respondents declared and returned the first respondent in this appeal, a candidate who was sponsored by the second respondent, as the winner of the said election.

The appellant was dissatisfied with the outcome of the election, hence, his petition at the lower tribunal. Upon the settlement of the pleadings, the tribunal proceeded to the hearing and determination of the petition. It dismissed the petition. The appellant was displeased with the judgment of the lower tribunal.

He expressed his displeasure with the said judgment in his Notice and Grounds of Appeal from which he formulated the issues he has now placed before this court for determination. As required by the Rules of this court, the respondents joined issues with the appellant in their respective briefs of argument.

Incidentally, neither the respondents in this appeal [as respondents in the lower tribunal] nor the lower tribunal itself adverted to the competence of the petition. However, in his brief of argument before this court, the first respondent has raised a preliminary objection which, for the first time, seeks to interrogate the jurisdiction of the lower tribunal to hear and determine the petition, in the first place. For its bearing on the fortune of this appeal, I shall take liberty to set out the said objection:

PRELIMINARY OBJECTION

TAKE NOTICE that at or before the hearing of this appeal, the 1st Respondent shall raise a preliminary objection to the competence of this appeal in the manner appearing hereunder.

The petition, the subject of this appeal was filed outside 30 days mandatorily stipulated for the presentation of the petition.

When this matter came up for hearing, this court entreated the parties to address the issue of the lower tribunal’s competence to entertain the petition. The court’s specific entreaty was for further addresses on two issues, namely:

1. Whether the provisions of sections 1 and 15 (2) (a) of the Interpretation Act and Order 23 rule 1 of the Federal High Court (Civil Procedure) Rules are applicable in the computation of time for filing an election petition under section 141 of the Electoral Act, 2006.
2. Whether the decision in Yusuf v Obasanjo (2003) 16 NWLR (pt 849) 554 is binding on this court in the interpretation of section 141 of the Electoral Act, 2006.

The parties complied by filing additional briefs. We shall sum up their respective positions as expressed in the said additional briefs.

ISSUE I

Salman Jawondo, learned counsel for the appellant, marshaled reasons why the preliminary objection should be discountenanced. He reacted to the two issues separately. With regard to issue one, he anchored his disavowal of the gravamen of the objection on the applicability of sections 1 and 15(2)(a) of the Interpretation Act and Order 23 rule 1 of the Federal High Court (Civil Procedure) Rules 2000 to the interpretation of the Electoral Act 2006, including section 141 of the Act.

Learned counsel made a spirited attempt to demonstrate why both the Interpretation Act and the said provisions of the Federal High Court Rules should prevail in the interpretation of the Electoral Act. He prayed in aid several decisions and quoted copiously from the decision in Yusuf v Obasanjo (2003) 9-10 SC 53. He urged the court to dismiss the objection.