The Electoral Officer Bichi Federal Constituency & Ors V. Rtd. Captain Ahmed Haladu Bichi & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment)

This appeal is from the decision of the National Assembly Elections Tribunal (to be named Lower Tribunal after now) sitting at Kano, Kano State delivered on the 15/1/2008 in an election petition No. EP/KNS/HR/29/2007.

The petition filed by the 1st and 2nd Respondents questioned the declaration and return of the 3rd Respondent as the winner of the election conducted by the Appellants for a seat in the Bichi Federal Constituency for the House of Representatives. In its decision, the Lower tribunal upheld the position of the 1st and 2nd Respondents that the 3rd Respondent did not score a majority of lawful votes cast at the election and that the 1st Respondent scored the majority of the valid votes cast. The 1st Respondent was consequently declared and returned by the Lower tribunal as the winner of election in question.

Being aggrieved by that decision, the Appellants filed a Notice of Appeal against same.

In line with the practice in the court, briefs of argument were filed by learned counsel for the respective parties in which issues for determination were raised. The briefs were adopted and relied on by the learned counsel as their submissions in support of their respective positions in the appeal at the oral hearing on the 7/10/09 and judgment was reserved for delivery on the 10/12/09. However in the course of preparing the judgment, we observed that there was the need to invite learned counsel for the parties to address the court on the competence of the petition filed before the Lower tribunal and so the invitation was extended to learned counsel for the address on the 10/12/09.

The issue to be addressed by learned counsel was whether in view of the fact on the record that the result of the election in question was declared on the 21/4/07, the petition filed on the 21/5/07 was presented within the thirty (30) days period prescribed by Section 141 of the Electoral Act, 2006.

The issue was raised suo motu by the court as it relates or touches on the competence of the petition and thereby involving a question as to the jurisdiction of the Lower tribunal to entertain it.

The law is elementary that the issue questioning the jurisdiction of a court or tribunal can be raised at any stage of proceedings in a matter by either the parties or the court. It is therefore never too late in law to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration. MAGAJI V. MATARI (2000) 8 NWLR (PT.670) 722 at 735, AKEGBE V. ATAGA (1998) 1 NWLR (PT.534) 459 at 465, STATE V. ONAGORUWA (1992) 2 SCNJ 1, A.G, LAGOS V. DOSUNMU (1989) 3 NWLR (PT.111) 552.

The law is also settled that once the issue of jurisdiction arises or is raised, it should be considered and determined first in the proceedings before further steps are taken therein in order to avoid what might eventually turn out to be an exercise in futility if jurisdiction was absent. ONYEMA V. OPUTA (1987) 6 &CNJ 176, OKONKWO V, INEC (2006) 2 EPR, 94, OKOH UBI (2006) ALL FWLR (PT.328) 717.

An issue such as the one raised by the court on whether an action or a petition was filed or presented within the period limited by law is one which goes to the jurisdiction of the trial court or tribunal as the case may be. ARABELLA V. N.A.I.C. (2008) 32 WRN 1 at 26, EMIATOR V. N.A. (1999) 9 SCN3 52, (1999) 12 NWLR (PT.631) 363 at 372.

In the above premises, I intend to determine the issue first before dealing with the issues raised in the appeal, if necessary.

The submissions of the learned counsel for the Appellants, Mr. N.H. Auta on the issue are to the effect that since the result of the election was declare on 21/4/07, the petition filed on the 21/5/07 was presented on the 31st day thereafter and therefore outside the period of thirty (30) days limited by Section 141 of the Electoral Act 2006. He said the petition was in the circumstance, statute barred and the Lower tribunal had no jurisdiction to entertain it, relying on the decision in appeal No. CA/A/EP/317/07 and CA/A/EP/232/2008 delivered on 19/2/2009 (yet to be reported). We are urged by him to so hold and strike out the petition.

Mr. Nuraini Jimoh, the learned counsel for the 3rd Respondent addressed us next on the issue because the 3rd Respondent and Appellants were, all Respondents to the petition at the Lower tribunal and so have a common position on the issue which should be addressed for the 1st and 2nd Respondents to respond fully to the points raised therein.

The submissions by Mr. Jimoh were similar to that of learned counsel for the Appellants that the petition was filed outside the 30 days prescribed by Section 141 of the Electoral Act, 2006. According to him, all the results of the election tendered in evidence show that the results were declared on the 21/4/07 and specifically made reference to pages 63 – 69, 126 – 9, 148 – 150, 166 – 185, 188 – 195, 202, 209, 237 – 8, 272, 318 of Vol.1 and all the pages after page 617 of the Vol.2 of the printed record of the appeal to support the position. Furthermore, he said the petition did not challenge or raise the issue of the date of the declaration of the election result and so there are no pleadings that the result was declared on any other date. In addition, learned counsel referred to paragraph 5 of the 1st Respondent’s Reply to the petition, the statements on oath of Haruna Mato and Hashim Saleh Yar alamun at page 61 of Vol.1 of the record of appeal which he said was not challenged and which show that the result of the election was declared on the 21/4/07 as affirmed by the Lower tribunal at pp.339 of the record of appeal. It was the submission of the learned counsel that there was no appeal against the finding by the Lower tribunal. He then contended that the 30 days limited by Section 141 of the Electoral Act for the presentation of the petition lapsed on the 20/5/07 since the time started to run on the 21/4/07 when the result was declared. Learned counsel maintained that the petition was statute barred and relied specifically on cases No. 9, 10, 11, 18 – 23 on the list of authorities he filed on the 9/12/09. He said the fact that the last of the 30 days was a Sunday is not material because the day is not a public holiday under the Public Holidays Act, Cap.40 Laws of the Federation of Nigeria and that election petition being sisi generis under paragraph 25(2) of the 1st Schedule to the Electoral Act, Sunday and every public holiday is a working day. Cases No.3, 4 and 25 on the list of authorities were referred to and it was argued by learned counsel that the evidence of PW1 at page 444 of the record of appeal to the effect that the collation and declaration of the winner was on 22/4/07 is not supported by any pleadings and so goes to no issue. That the evidence cannot override the finding by the Lower tribunal and the results tendered in evidence to the effect that the result was declared on the 21/4/07. Finally cases No. 26 and 27 on the list of authorities were cited by learned counsel who urged us to strike out the petition for being statute barred. Mr. O.E.B. Offiong, the learned counsel who addressed the court on the issue for the 1st and 2nd Respondents said in his address that the main issues to be determined is/are (1) whether the petition was filed within the 30 days limited by Section 141 of the Electoral Act and (2) whether the National assembly intend to change the principle of law that stipulating that when the last day for the doing of an act under a statute falls on a Sunday or other non dies day, the act can be done on the next day when the offices of the court would open. He submitted that there are two (2) ways of proving the declaration of result of election, (1) that the question of the date of the declaration of the result is a matter of evidence adduced. The case of ANPP V. INEC (2004) 7 NWLR (PT.871) 16 at 51 paragraph C – F was cited on the point. Also that documentary evidence cannot be relied on unless it was tendered and admitted in evidence in the proceedings and reliance was placed on AGIBI V. ORIBE (2005) 8 NWLR (PT.926) 40 at 139-40 and SAMBO V. THE STATE (1993) 6 NWLR (PT300) 399 at 418. It was then contended that there was no evidence that the result of the election was declared on 21/4/07 because all the documents referred to by the learned counsel for the 3rd Respondent were not tendered and admitted in evidence in the proceedings.