Adewole O. Adewunmi & Anor V. Ayodeji Adebayo Joseph & 2 Ors

Court Of Appeal, Lagos Division – November, 2015

Legalpedia Electronic Citation LER[2015]CA/L/EP/HR/1001/15

 

Areas of Law: 

APPEAL, ELECTORAL LAW, INTERPRETATION OF STATUTE, PRACTICE AND PROCEDURE

 

Summary of Facts

The Petitioner/1st Appellant was the candidate of the 2nd Appellant Peoples Democratic Party (PDP) while the 1st Respondent was the candidate of the 2nd Respondent, the All Progressive Congress (APC) at an election into the House of Representatives in respect of the Apapa Federal Constituency. At the end of the election, the 3rd Respondent (INEC) declared the 1st Respondent winner of the election having scored the highest number of vote in the election. Dissatisfied with the declaration and return, the Appellants filed a petition at the National and State Houses of Assembly Election Petition Tribunal,(Panel 1)Ikeja, Lagos, challenging the return of the 1st Respondent on the ground that he was not qualified to contest the election by virtue of section 138(1)(a) of the Electoral Act, 2010(as amended). The Appellants contended that the 2nd Respondent conducted its Primaries for the House of Representative without giving the 3rd Respondent a fresh notice as required by section 85(1) of the Electoral Act after rescheduling the date for the primaries and sought reliefs that the 1st Respondent did not participate in the said election as the notice of the Party’s Primaries fell short of the period required by section 85 (1) of the Electoral Act, 2010(as amended), an order nullifying the said election on grounds of non-qualification among others. At the conclusion of the trial, the Tribunal dismissed the petition hence this appeal at the instance of the Appellants.

 

Held

Appeal Dismissed

 

Issues For Determination

• Whether the tribunal can make any findings of fact on the alleged invalid sponsorship of the 1st respondent by the 2nd respondent (ground 1 of the notice to affirm judgment on other grounds)
• Whether the fact that the petitioners did not ask for a re-run of the election as one of the reliefs they are seeking is fatal to their case. (Ground 2 of the notice to affirm the judgment on other grounds)
• The decision of the lower Tribunal dismissing the Petition be affirmed because there is material on record showing that the Petitioners/Appellants admitted that the 1st Respondent was the candidate sponsored by the 2nd Respondent
• The decision of the lower Tribunal dismissing the Petition be affirmed for failure by the Petitioners to ask for a re-run of the election conducted on the 28th of March 2015 into the Apapa Federal Constituency of the House of Representatives and thereby rendering the Petition incompetent.

 

Rationes

APPEAL FROM AN ELECTION TRIBUNAL – TIME FRAME FOR HEARING AN APPEAL FROM AN ELECTION TRIBUNAL

“By Section 285 (7) of the 1999 Constitution (as amended) an appeal from a decision of the Electoral Tribunal must be heard and disposed of within 60 days of the date of the delivery of judgment by the Tribunal. In other to manage the 60 days, the time limit prescribed in the Practice Directions must be adhered to strictly.” PER C.E. IYIZOBA, J.C.A

 

NULLIFICATION OF ELECTION – DUTY OF AN ELECTION TRIBUNAL ON THE NULLIFICATION OF AN ELECTION

“It is necessary to point out that by Section 140(2) of the Electoral Act (as amended), where an election is nullified on the ground that the person who obtained the highest number of votes was not qualified to contest the election, the tribunal shall not declare the person with the second highest votes as elected but shall order a fresh election. PER C.E. IYIZOBA, J.C.A 

 

CONDUCT OF PRIMARY ELECTION – WHETHER THE PRESENCE OF THE INDEPENDENT ELECTORAL COMMISSION OFFICIALS CAN SAVE PRIMARIES CONDUCTED DESPITE THE NON-COMPLIANCE OF POLITICAL PARTIES WITH SECTION 85(1) OF THE ELECTORAL ACT

“If a political party did not comply with Section 85(1) and did not give the 21 days notice at all or sufficient notice, the fact that INEC officials nonetheless attended and observed the primaries ought to save the primaries from being declared a nullity. This view is with respect completely misconceived. Section 85(1) is a clear and unambiguous provision”. PER C.E. IYIZOBA, J.C.A

 

LITERAL RULE – THE LITERAL RULE OF INTERPRETATION REQUIRES THAT WORDS USED IN A STATUTE SHOULD BE GIVEN THEIR ORDINARY AND NATURAL MEANING

“The primary rule of construction is the literal construction which requires that we give the words used in the statute, and only those words, their ordinary and natural meaning, omitting no words and adding none. Nwakire v C.O.P. (1992) NWLR (Pt. 241) 289 per Nnaemeka-Agu JSC. See also PDP VS INEC (2014) 17 NWLR (PT 1437) PAGE 525 @ 558 C-D cited by appellants’ counsel where the court observed:

“The cardinal principle in the interpretation of statutes is that the meaning of a statute or legislation must be derived from the plain and unambiguous expressions or words used therein rather than from any notion that may be entertained as to what is just and expedient. The literal rule of interpretation is always preferable unless it would lead to absurdity and inconsistency with the provisions of the statute as a whole.”

See also Dangana Vs Usman (2013) 6 NWLR (PT 1349) 50 @ 80-81 H-B also cited by Appellants’ counsel where the apex court observed:

“Furthermore, where the words of a statute are clear, unambiguous and unequivocally express the intention of the lawmakers, effect must be given to them irrespective of whether that produces a harsh or inconvenient result.” PER C.E. IYIZOBA, J.C.A

 

CONDUCT OF PRIMARY ELECTION – REQUIREMENT OF SECTION 85 (1) OF THE ELECTORAL ACT ON THE CONDUCT OF PRIMARY ELECTION BY A POLITICAL PARTY

“Section 85(1) requires that a political party shall give INEC 21 days Notice before the date of its primary election. There is nothing in the section which dispenses with the requirement of 21 days notice if INEC officials attended and observed the primary elections. It trite from decided cases of the apex Court that failure to give the requisite notice renders the primary election invalid, null and void. See Amaechi Vs. INEC (2008) 1 MJSC 1-25 Page 1 At Page 44;Hon. Aidoko All Usman Atai And Anor. Vs. Ocheja Emmanuel Dangana & 3 Ors.INEC LAW REPORT (2012) VOL. 1 523 @ 541. Where for example, there is collusion between some unscrupulous INEC officials and the political party giving rise to some INEC officials attending to observe the primary election in the absence of the requisite notice, the primary election will non the less be declared a nullity. The 21 days notice is sacrosanct and must be complied with.”PER C.E. IYIZOBA, J.C.A

 

Statutes Referred To:

Constitution of the Federal Republic of Nigeria 1999 (as amended)

Court of Appeal Election Tribunal and Court Practice Directions 2011

Electoral Act, 2010 (as amended)