KOTUN LOOKMAN OLADIPO & ANOR V. ENITAN DOLAPO BADRU & ORS

Legalpedia Citation: (2015) Legalpedia (CA) 41966

In the Court of Appeal

Thu Nov 12, 2015

Suit Number: CA/L/EP/HR/1002/15

CORAM

TIJJANI ABUBAKAR    JUSTICE,  COURT OF APPEAL

PARTIES

KOTUN LOOKMAN OLADIPO

PEOPLES DEMOCRACTIC PARTY (PDP)

 

 

APPELLANTS

ENITAN DOLAPO BADRU

ALL PROGRESSIVE CONGRESS (APC)

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

 

RESPONDENTS

AREA(S) OF LAW

ELECTORAL LAW, RULE OF INTERPRETATION, CIVIL PROCEDURAL LAW, APPEALS, RULE OF STATUTORY INTERPRETATION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This appeal is against the Judgment of the National Assembly and State House of Assembly Election Petitions Tribunal Panel 1; Ikeja Lagos. The facts grounding the appeal are that, the Appellants were the Petitioners before the lower Tribunal, 1st Appellant was the Candidate sponsored by the 2nd Appellant to contest the National Assembly elections conducted by the 3rd Respondent for the Lagos Island 1 Federal constituency seat to the House of Representatives. At the conclusion of the said election, the 3rd Respondent declared the 1st Respondent winner. Appellant became aggrieved by the declaration and therefore made for the lower Tribunal challenging the return and declaration of the 1st Respondent as the winner and claimed declarative reliefs, executory orders. The petition went through full blown trial before the lower Tribunal, where parties called witnesses and at the close of trial and adoption of addresses, the lower Tribunal delivered its Judgment dismissing Appellants petition and affirming the declaration and return of the 1st Respondent by the 3rd Respondent as the winner of the said election. Again, the Petitioner became aggrieved by the Judgment of the lower Tribunal and filed an appeal to this Court.

 

HELD

Appeal Dismissed.

ISSUES

1. Whether the Trial Tribunal was right in its conclusion that the purpose of the Notice required under section 85(1) of the Electoral Act, 2010 (As amended) is to enable Inec attend and monitor the primaries of political parties in Order to perform its functions under section 86(1) of the Act.(Grounds 1, 4, 7, and 9 of the Notice of Appeal)?
2. Whether in view of the 2nd Respondents letters to the 3d Respondent dated 19/9/2014 (Exhibit R1) and 18/11/2014, (Exhibit P4), the Trial Tribunal was right to have held that the 2nd Respondent complied with the provisions of section 85(1) of the Electoral Act, 2010 (As amended) in the conduct of is primary elections which led to the emergence of the 1st Respondent as its candidate for the Lagos Island 1 Federal Constituency seat in the House of Representatives election held on 28th March, 2015. (Grounds 2, 3, 5, 6, 8, and 10 of the Notice of Appeal)?

 

RATIONES DECIDENDI

ELECTION PETITION – WHETHER OR NOT ELECTION PETITION IS THE SAME AS ORDINARY CIVIL PROCEEDINGS

It is therefore settled that election petition is not the same as ordinary civil proceedings. It is governed by special proceedings, purposely designed to meet the demands of the peculiar nature of elections which by reason of their importance to the well being of a democratic society are regarded with characteristic that places them over and above the normal day to day transactions between individuals which give rise to ordinary or general claims in Court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that can cause delay in the disposition of the substantive dispute. SEE: ORUBU Vs. INEC (1988) 5 NWLR (Pt. 94), and CHIME Vs. EZRA (2009) 2 NWLR (Pt. 1125) 263 at 430. PER – TIJJANI ABUBAKAR, JCA.

ELECTION TRIBUNAL – PURPOSE OF THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTION 2011

The provisions made under the Election Tribunal and Court Practice Direction 2011 are purpose made provisions designed to promote expeditious hearing and determination of matters arising from the conduct of elections, any failure to strictly comply with the provisions of the directions will strip the Court of jurisdiction to grant extension of time to regularize what has not been done as required by the practice direction, SEE; OKEREKE Vs. YAR’ ADUA (2008) ALL FWLR (Pt. 430) 616. PER – TIJJANI ABUBAKAR, JCA.

ELECTION PETITIONS – THE ESSENCE OF SETTING TIME LINES IN THE DETERMINATION OF ELECTION PETITIONS

The essence of setting time lines in the determination of election petitions is to obviate potential threat to the provisions of section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) dealing with time lines for hearing and determination of election Petitions, it is a case management provision set up to promote expeditious determination of petitions and keep parties in an election petition on their feet, parties must be vigilant, alert and alive as any perceived dereliction on the part of any of the parties resulting in non-compliance with the time lines as provided under the practice direction will be fatal to its case. SEE: IREK Vs. OKPECHI & OTHERS, CA/C/NAEA/151/2015 (UNREPORTED) a decision of this Court delivered on the 3rd day of September 2015. PER – TIJJANI ABUBAKAR, JCA.

ELECTION PETITIONS – EFFECT OF FAILURE TO COMPLY WITH THE PROVISIONS OF THE TIME LINES SET OUT IN RULE 12 OF THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTION 2011

Finally, having said so much on this point, I am of the view that the moment there is failure to comply with the provisions of the time lines set out in Rule 12 of the Election Tribunal and Court Practice Direction 2011, which gives Respondent five days within which to file his brief of argument, he is effectively and permanently shut out from filing his brief and this Court has no jurisdiction to extend time for him to do so. As rightly submitted by learned Counsel for the Appellants Chief Ahonaruogho, 1st Respondents brief having been filed outside the time provided by Rule 12 of the Election Petition and Court Practice Direction 2011 is incompetent and therefore liable to be struck-out. It is hereby struck out, I also order that 1st Respondents issues for determination be and are hereby struck out. PER – TIJJANI ABUBAKAR, JCA.

 

DEFINITION OF TERMS – DEFINITION OF NOTICE

Blacks law dictionary page 1090 Eighth edition defines “NOTICE”, 1. As legal notification by law or agreement, or imparted by operation of law as a result of some fact (such as the cognizance, actual or constructive of an existing right or title…. A person has notice of a fact or condition if that person (1) has actual knowledge of it, (2) has received information about it, (3) has reason to know about it, (4) knows about a related fact, or (5) is considered as having been able to ascertain it by checking an official filing or recording. 2. The condition of being so notified, whether or not actual awareness exists, 3. A written or printed announcement. PER – TIJJANI ABUBAKAR, JCA.

DEFINITION OF TERMS – DEFINITION OF SCHEDULE

On the other hand the word “SCHEDULE” means: A written list or inventory, esp., a statement that is attached to a document and that gives a detailed showing of the matters referred to in the document. PER – TIJJANI ABUBAKAR, JCA.

DEFINITION OF TERMS – DEFINITION OF REVISED AND RESCHEDULED

The said exhibit carries the following words “REVISED” “RESCHEDULED”. These two words featured prominently in the letter of the 2nd Respondent to the 3rd Respondent dated 18th November 2014. I had recourse to dictionary.com, where “revised” has the following meaning assigned to it, “to amend or alter, to revise ones opinion, to alter something already written or printed in order to make corrections, improve, or update, while “Rescheduled” is defined as ” to schedule for another or later time, (interesting enough, dictionary.com gave the following instance ” to reschedule a baseball game because of rain). PER – TIJJANI ABUBAKAR, JCA.

RECORD OF APPEAL – HOW A RECORD OF APPEAL SHOULD BE CONSIDERED

Record of appeal must be considered wholistically to avoid doing violence to the contents and injustice to the Judge and the Court. SEE; CHIEF ADEBISI ADEGBUYI Vs. APC & 2 OTHERS, LER (2014) SC. 257/2012. PER – TIJJANI ABUBAKAR, JCA.

STATUTORY INTERPRETATION – WHETHER OR NOT THE PROVISIONS OF SECTION 85 (1) OF THE ELECTORAL ACT ADMITS ANY COMPLEX INTERPRETATION

The provisions of section 85(1) of the Act do not admit of any complex interpretation, or importation of any meaning outside the natural and ordinary meaning of the wordings of the section. The wordings of the section are plain and unambiguous, and must be given their ordinary meaning the cardinal principle of interpretation of statutes is that the meaning of a statute must be derived from the plain and unambiguous expressions or words used therein. PER – TIJJANI ABUBAKAR, JCA.

STATUTORY INTERPRETATION – THE POSITION OF THE LAW WHERE THE WORDS OF A STATUTE ARE CLEAR AND UNAMBIGUOUS

I am in total agreement with learned Counsel for the Appellants when he relied on the decision in DANGANA Vs. USMAN (2013) 6 NWLR (Pt. 1349) 50 at 80-81, to emphasize the settled position of the law that where the words of a statute are clear and unambiguous and unequivocally express the intention of the lawmaker effect must be given to them irrespective of whether so doing shall produce harsh or inconvenient result, it is therefore a gross misconception on the part of the Tribunal to hold that attendance by INEC will cure any failure to serve 21 days notice, the law is settled on endless judicial decisions that failure to give notice as required by section85(l) of the Electoral Act will have the effect of invalidating primary elections, SEE: AMAECHI Vs. INEC (2008) 1 MJSC 1-25 at 44. PER – TIJJANI ABUBAKAR, JCA

ELECTION PETITION – WHETHER OR NOT THE 21 DAYS NOTICE REQUIRED BY SECTION 85 (1) OF THE ELECTORAL ACT IS SANCROSANCT

I agree with learned Counsel Chief Ahonaruogho for the appellants that the 21 days notice required by section 85(1) of the Act is sacrosanct, any attempt to alter the meaning of the law will constitute potential danger to the established sui generis position of election petitions, such interpretation by the lower Tribunal must not therefore be accepted as the correct position of the law. The fact that the lower Tribunal came to erroneous conclusion in its interpretation of the section will not alter the conclusion reached by the lower tribunal since I have already held the view that the 2nd Respondent complied with the provisions of section 85(1) of the Act, and the declaration and return of the 1st Respondent by the 3rd Respondent is proper, resolution of this issue in favor of the Appellants does not in anyway affect the outcome of the election. Issue number One is resolved in favor of the Appellants. PER – TIJJANI ABUBAKAR, JCA

CASES CITED

STATUTES REFERRED TO

Court of Appeal Rules 2011

Electoral Act 2010 (as amended)

Election Tribunal and Court Practice Direction 2011

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

 

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