In this article, Dr Ade Dawodu contends that ‘misunderstanding and misinterpretation’ of the law made Senator Heineken Lokpobiri to lose the Bayelsa State All Progressives Congress (APC) Governorship ticket.
By Ade Dawodu
The political cum legal drama of the recent Bayelsa State governorship election climaxed with the swearing in of Senator Duoye of the Peoples Democratic Party (PDP), who did not win the majority votes during the election.
Mr. David Lyon of the All Progressives Congress (APC) had been declared by the Independent Electoral Commission (INEC) as the winner of the election.
It was the Supreme Court decision in the pre-election cases of PDP v Biobarakuma Degi-Eremienyo & ors SC. 1/2020 (unreported) that deprived Mr. David Lyon of becoming the Governor of Bayelsa State.
But aside the case, Mr. Lyon of the APC would still not have been sworn in as Governor if the pre-election case of Senator Heineken Lokpobiri v APC Ors SC.35/2020 (unreported) had been decided on its facts and merit.
Rather, the Court of Appeal and the Supreme Court dismissed the case on the ground of being filed outside the time limit prescribed by Section 285(9)of the 1999 Constitution (as altered).
Section 285(9) of the Constitution provides: Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not more than 14 days from the date of the occurrence of the event, decision or section complained of in the suit.
The case of Senator Lokpobiri was that he won the majority votes in the APC primary election and that the declaration and nomination of Mr. Lyon as the APC governorship candidate was done in violation of relevant laws.
But in a preliminary objection brought pursuant to Section 285(9) of the Constitution, Mr. Lyon contended that the case was statute barred having been filed on September 18, 2019 which made it 15 days from September 4, 2019, the date of the primary election.
But the trial court made a significant finding of fact that the case was filed on September 17, 2019 and not September 18, 2019 in the words of the trial court
Contrary to the assertion by both Learned Counsel, the Originating Summons which commenced this suit was filed in the Registry of this Honourable Court on September 17, 2019.
That is the date on the originating process in the court’s file which took cognizance that the Originating Summons was filed alongside the Motion Ex-parte, Motion on Notice for substituted service and abridgement of time and affidavit of extreme urgency at 1.49pm on September 17 with Treasury Receipt Number – 1303-3440-4854.
The date, September 18, 2019 was endorsed on the service copies which the parties were served. It appears payment for the service copies was made on September 18, 2019 as a different treasury receipt number.
RRR-1803-3471-3939 is endorsed thereon. The negligent act of the Registrar of Court appears responsible for the irregularity.
However, it has since been held that litigants cannot suffer for the negligent acts of the Registrar of Court. In other words, a procedural irregularity will not vitiate a suit once it is shown that either party has not suffered a miscarriage of justice.
This significant finding of fact by the trial court that the Originating summons was filed on September 17, 2019 effectively established that Senator Lokpobiri’s cases was filed on the 13th day from September 4, 2019, the date of the primary election when the causes of action arose.
But the Court raised uncontested issues of composition of the Electoral Committee and the declaration of results by the Secretary instead of the Chairman; based on these issues, the Court concluded that no valid primary election was conducted and consequently nullified Mr. Lyon’s nomination
At the Court of Appeal, the issue turned on whether the 4th of September, 2019 is to be included or excluded in the computation of the 14 days period if the date is included.
Then it would mean the case was filed on the 15th day (outside time). But if the date is excluded, the implication is that it was filed on the 14th day (within time).
Generally, the interpretation of statutory provisions, including the computation of time within which to take any legal step, is governed by the Interpretation Act Section 1 of the Act provides that it shall apply to the provisions of any enactment except in so far as the contrary intention appears in the Act of the enactment in question.
Pursuant to Section 15(2)(a) of the Act, ‘a reference in an enactment to a period of days shall be construed where the period is reckoned from a particular event as excluding the day on which the event occurred’.
But relying on the Supreme Court case of Okechukwu v INEC (2014) 17 NWLR (pt.1436) 255, the Court of Appeal held that the Interpretation Act does not apply to the interpretation of Section 285(9) of the Constitution.
It therefore dismissed the suit as being statute barred having been filed outside the 14 days period in Okechukwu v INEC on which the Court of Appeal relied.
Ariwoola JSC, while conceding that the date of occurrence of the event is excluded in line with the Interpretation Act, pointed out, however, that the sui generis nature of election related matters in which time is of the essence, makes the Interpretation Act inapplicable to Section 285(9).
But there are preceding Supreme Court cases which held that the Interpretation Act applied to the computation of time in election cases and that the day of the event had to be excluded.
In the case of Yusuf v Obasanjo (2003) 16 NWLR (pt. 857) 554, the Supreme Court relied on section 15(2)(a) of the Interpretation Act in holding that the date of the occurrence of the event – declaration of Presidential election result – must be excluded in the computation of time within which to bring an election petition.
Also in Ezeigwe v Nwawulu (2014) 4 NWLR (pt.1183) 159, which also turned on the computation of time within which to file an election petition, the immediate past Chief Justice of Nigeria.
Onnoghen, JSC (as he then was) referred to Section 15(2)(a) of the Interpretation Act and held that ‘the law is now settled that in calculating or computing time stipulated by statute, generally the first day of the period will be excluded from the reckoning’.
While the Supreme Court relied on the Interpretation Act as authority for its decisions in the preceding cases of Yusuf v Obasanjo and Ezeigwu v Nwawulu, it did not cite any law other than the sui generis nature of election related matters as the basis why the Interpretation Act should not apply in the latter cases of Okechukwu v INEC, including the similar case of PDP v INEC (2014) 17 NWLR (Pt. 1437) 525.
When Senator Lokpobiri’s case got to the Supreme Court, the apex court agreed with the judgment of the lower court and held that the provision in Section 285(9) of the Constitution does not admit of any elongation of time beyond 14 days.
But the issue is not about elongation of the 14 days period rather. It is about when the period should start to count. Okoro JSC conceded that Section 318(4) of the Constitution incorporates the applicability of the Interpretation Act in the interpretation of the provisions of the Constitution, but held that where provisions are generally applicable, such general provisions must give way to specific provisions.
But the Interpretation Act does not provide any general or alternative period of time within which to file pre-election cases.
What it provides is the interpretation as to when any period of time provided in any statute, including the constitution, should start to count.
Since it is conceded by the Supreme Court that the Interpretation Act applies to the constitution, under what law did the Court exclude its application with respect to Section 285(9) of the Constitution in particular?
By virtue of Section 1 of the Interpretation Act, it shall apply to the provisions of any enactment except in so far as the contrary intention appears in the Act or the enactment under consideration.
Neither the provisions of the Interpretation Act nor the provisions of the constitution exclude section 285(9) of the constitution from the ambit of the International Act
In the absence of any exclusionary statutory or constitutional provision to that effect, the Supreme Court lacks the jurisdiction to exclude Section 285(9) of the Constitution from the provisions of the Interpretation Act.
The situation would be different if there was no applicable law relating to the interpretation of the section. In such situation, the Supreme Court could validly fill the gap by deciding to exclude the day of the event from the computation of time in light of the special nature of election cases being time bound. But no such gap exists as the Interpretation Act adequately covers the field.
The Interpretation Act is a colonial legislation that was received into our laws, and its original provision on the exclusion of the day of the event remains the law till date in the United Kingdom. English court have continued to apply it as they have done since the 19th Century case of Radcliffe v Bartholomew (1892) 1 QB 161, through the 20th Century in Marren v Dawson Bentley and Co. Ltd (1961) 2 AII ER 270, and up till this 21st Century in Mathew v Sedman (2019)EWCA Civ 475.
In all these cases and others it was consistently held that the day on which the cause of action arose is excluded from computation when calculating the limitation period. The only exception is where there is a particular statute to the contrary.
There is no statute that currently excludes the day of the event from the computation of the 14 days period within which to file pre-election cases as provided in Section 285(9) of the Constitution.
Thus, it is a misinterpretation of the law by the Supreme Court that denied Senator Lokpobiri justice at the end of a long journey.
In addition to constitutional misinterpretation, the Supreme Court did not comply with the provisions of the Constitution in hearing and deciding the cases.
From the lead judgment of Okoro, JSC, the sole issue on appeal involved the interpretation of Sections 318(4) and 285(9) of the Constitution, which under Section 234 of the Constitution is to be heard and decided by a panel of seven Justices of the Supreme Court. But in the case, only five Justice heard and decided the appeal.
This is curious because in the most recent case on the interpretation of the provisions of sections 250(2) and 253 of the Constitution in Udeogu v FRN and Ors SE.622C/2019 (unreported), otherwise referred to as Orji Uzor Kalu’s case, a panel of seven Justices of the Supreme Court held and decide the case.
So, in Senator’s Lokpobriri’s case, the Court was not properly constitution as regards the mandatory numbers of Justices.
On the authority of the Supreme Court’s decision in Madukolu v Nkemdilim (1962) LPELR-24023, the judgement can be considered a nullity even if the court held otherwise in favour of Senator Lokpobiri.
In conclusion, justice was not served in the Senator Lokpobiti’ case from the trial court up to the Supreme as a result of a misunderstanding and misinterpretation of the law.
But beyond Senator Lokpobiri’s cases, the Supreme Court should look out for similar future case to clarify the law on the interpretation of Section 285(9) of the Constitution.
Most importantly, whenever the opportunity offers itself and the Supreme Court is invited to correctly clarify the interpretation of Section 285(9) of the Constitution, it must do so with a full panel of seven justices.
- Dr. Dawodu, formerly Senior Lecturer at the Leads School of Law, Leeds Beckett University, United Kingdom, writes from England.
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