HON. EKERE AFIA & ANOR v. HON. EMMANUEL E. EKPENYONG & ORS
(2011)LCN/4773(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of August, 2011
CA/C/NAEA/157/2011
RATIO
PRE-HEARING SESSION: WHETHER A MOTION CAN BE ALLOWED TO BE TAKEN BEFORE THE COMMENCEMENT OF PRE-HEARING SESSION
It is trite that no motion is allowed to be taken before the commencement of pre-hearing session unless leave of the Tribunal is granted after special circumstances to do so have been disclosed. PER JA’AFARU MIKA’ILU, JCA
ELECTION PETITION: WHETHER AN ELECTION PETITION CAN BE VALIDLY FILED ON THE NEXT WORKING DAY AFTER A HOLIDAY
It is undisputed that in this case the result of the election was declared on 10th day of April, 2011. Therefore the last day when the petition leading to the appeal was supposed to be filed was Sunday the 1st day of May, 2011 which was not on a working day and which by law is regarded as holiday. The following day 2nd day of May 2011 was declared a public holiday for the celebration of workers day by the Federal Government of Nigeria. The petition was filed on the next working day which was the 3rd day of May, 2011, the next available day. Paragraph 4 of the petitioner’s reply has made it clear as follows:- “The petitioners state that 21 days from 11/4/2011 end on Sunday 1st May, 2011 and the 2nd may, 2011 was a public day and work free day declared by the Federal Government of Nigeria for the celebration of workers.” It is clear, therefore, that the election petition in this case was properly and validly filed on the next working day after the 1st and 2nd days of May, 2011 which was the 3rd May, 2011. It is to be noted that section 285(5) of the 1999 constitution has provided that the election petition shall be filed within 21 days after the date of declaration of result in the computation of time within which to file an election petition in compliance with section 285 (5) of the 1999 constitution (as amended) the provision of the Interpretation Act is clearly applicable. Section 318 (4) of the 1999 constitution (as amended) has provided that Interpretation Act shall apply for the Purpose of interpreting the provisions of the constitution. Section 318 (4) of the 1999 constitution (as amended) provides the interpretation Act shall apply for the Purposes of interpreting the provisions of the constitution. Under section 150(1) (b) of the Interpretation Act it has been provided as follows:- “where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday” Section 15 (3) of the interpretation Act has also provided as follows:- “where by an enactment any act is required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on which is not a holiday” “Holiday” has been defined under section 15 (5) of the Interpretation Act as a day which is a Sunday as a public holiday. The combined effect of section 15(2), (b), 15 (3) and 15 (5) of the Interpretation Act the election petition herein which had Sunday May 1 as the last day was validly filed on May, 3rd since May 2nd was also a public holiday. The decision of the tribunal that only section 15 (4) of the Interpretation Act is applicable to the petition herein is erroneous. The provision of section 15(4) of the Interpretation Act that holidays shall not be reckoned to be port of the period of doing a thing if the period is less then six days. It is immaterial whether the holiday occurs at the beginning, middle or last day of the six-day period. This situation is inapplicable to the election petition herein since the number of days within which to file o petition is 21 days after the date of declaration of the result. It is to be noted that in a situation where the period is more thon six days, which situation is covered by the provisions of sections 15 (2) (b) and 15 (3) of the Interpretation Act, the last day of doing the act is immaterial. Where the last day is a holiday, then the act can be validly done at the next working day. This situation is applicable to the election petition filed by the appellants herein. ft is clearly not possible for the appellants to file their petition on a Sunday or a public holiday. It is not the fault of the petitioners that the last day of filing their petition was a Sunday and or a public holiday requiring them to file on that day and striking out their petition for this default, it will amount to punishing them for on act which is not their fault. It is, therefore, hereby held that the petition of the appellants was duly filed within the 21 days allowed by the constitution. PER JA’AFARU MIKA’ILU, JCA
TIME LIMIT: WHETHER ONCE A STATUTE HAS SET OUT A TIME LIMIT FOR THE PERFORMANCE OF AN ACT, THE ACT MUST BE TAKEN TO BE FULLY PERFORMED IF IT IS CARRIED OUT WITHIN THE LAST SECOND OF THE TIME LIMITED BY THE STATUTE
It is to be made clear that once a statute has set out a time limit for the performance of an act, the act must be taken to be fully performed if it is carried out within the last second of the time limited by the statute. Refer to ALHAJI IBRAHIM IDRIS v. PRINCE ABUBAKAR AUDU (2005) 1 NWLR (pt 908) 612 at 652. PER JA’AFARU MIKA’ILU, JCA
DISSIMISAL IN LIMINE: REASON FOR THE COURTS BEING VERY CAUTIOUS AND SLOW IN STRIKING OUT OR DISMISSING CASES IN LIMINE
It is trite that a court of law leans in favour of deciding cases on the merit and will be very cautious and slow in striking out or dismissing a case in limine unless there is no other option. This is because such a course has a tendency of denying the plaintiff his right to be heard. This has been made clear by the apex court in HENRY STEPHENS ENG. CO. LTD v. S A. YAKUBU (NIG) LIMITED (2002) 10 NWLR (pt 829; 522 in the following words:- “Dismissal of a matter in limine is to be the greatest Punishment that a plaintiff can receive in the litigation process. By it, the plaintiff is shut away mid stream from the stream of litigation and he is in trouble. Therefore before the trial Judge dismisses an action, he must be very sure that he has no other option open to him…. The right to be heard is of fundamental and indispensable requirement of any judicial decision. See N.B.C.I Vs M.G.A. CO. LTD (1992) 2 NWLR (Pt 221) 71 (a) 85. J.A JOB v. GUARANTY TRUST BANK PLC (2004) 3 WRN 60 at 84. The Court of Appeal has further reiterated above position when it held as follows:- “To my mind, it is evident that our judicial system would never permit a plaintiff to be driven from the judgment seat in this way without any court having considered his right”. PER JA’AFARU MIKA’ILU, JCA
JUSTICES:
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. HON. EKERE AFIA
2. PEOPLES DEMOCRATIC PARTY (PDP) – Appellant(s)
AND
1. HON. EMMANUEL E. EKPENYONG
2. ACTION CONGRESS OF NIGERIA (ACN)
3. RESIDENT ELECTORAL COMMISSIONER AKWA IBOM STATE
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
JA’AFARU MIKA’ILU, JCA (Delivering the Leading Judgment): This is on appeal against the decision of the National Assembly/Legislative Houses Election Tribunal, Uyo (herein called the tribunal) delivered on 29th June, 2011. The tribunal in the said ruling made on order striking out the appellant’s petition among other orders. The reason given by the tribunal for striking out the petition is that the petition was filed outside the 21 days allowed by the Electoral Act, 2010 (as amended) for filing of a petition.
The undisputed facts are that the last day of 2nd day period allowed by the Electoral Act for the filing of this petition fell on a Sunday, the 1st day of May, 2011. The following day, the 2nd day of May, 2011 was a public holiday declared by the Federal Government of Nigeria to commemorate workers’ day. The petition was filed on the 3rd day of May, 2011, the next working day.
The endorsement of the Secretary of the Election Tribunal on the petition and the witnesses statements filed along with it show that the petition was filed on the 3rd day of May, 2011.
Briefs of argument have been filed and exchanged before this court.
It is to be noted that two notices of appeal have been filed by the appellants, The first notice of appeal is dated and filed on 4th day of July, 2011. The second notice of appeal was dated the 13th day of July, 2011 and was filed on the 15th day of July, 2011. Thus notice of appeal has 8 grounds of appeal.
The appellants are in this appeal relying on the 2nd Notice of Appeal dated 13th July, 2011 and filed on 15th July, 2011 together with the grounds of appeal therein and have abandoned the first Notice of Appeal in arguing the appeal.
As per the appellant’s brief of argument the following issues are framed for determination of this appeal based on the 2nd Notice
(i) Whether or not the objection leading to the striking out of the petition was competent, competently taken and determined by the Tribunal.
(ii) Whether or not the Electoral Tribunal was right in its decision that the Petition was statute barred.
(iii) Whether or not the Election Tribunal was right when it struck-out the name of the Resident Electoral Commissioner, Akwo Ibom State from the Petition.
It is to be noted that the 1st Respondent who has filed his brief has indicated that he is abiding by the three issues for determination formulated for determination by the appellants as above and relisted below:-
1. Whether or not the objection leading to the striking out of the petition was competent, competently taken and determined by the Tribunal.
(2) Whether or not the Election Tribunal was right in his decision that the Petition was statute barred.
(3) Whether or not the Election Tribunal was right when it struck-out the name of the Respondent Electoral Commissioner, Akwo Ibom State from the Petition.
It is to be noted that the reliefs claimed by the 3rd and 4th Respondents in the motion are as follows:-
1. AN ORDER granting 3rd and 4th Respondents/Applicants leave to enter appearance out of time.
2. AN ORDER deeming the reply filed along herewith as if filed upon leave of this Honorable Tribunal, and
3. AN ORDER striking out this petition on the 3rd day of May, 2011 without leave this Honorable Tribunal has no jurisdiction to entertain same.
It is to be made clear that the 3rd and 4th Respondents had no memorandum of Appearance before the tribunal therefore there was no basis upon which they could make application leading to the striking out of the petition and striking out the name of the 3rd Respondent. The Tribunal in this regard was wrong.
It is to be noted that the 3rd and 4th Respondents did not have a valid Reply to the petition as of the time they moved the motion leading to the time they moved the motion leading to the reliefs being appealed against. Since the 3rd and 4th Respondents had no Reply properly before the tribunal, therefore they had no foundation upon which to premise their objection. Paragraph 12 (5) of the First Schedule to Electoral Act provides as follows:-
“A Respondent who has on objection to the hearing of the petition shall file his reply and state therein, and the objection shall be heard along with the substantive petition.”
The 3rd and 4th Respondents had no reply or valid reply at the time the application was taken. The motion, as much as it was objection to the petition was not competent and was not competently taken by the tribunal. The objection was taken before the close of pleadings before pre-hearing session and before trial of the substantive petition. The application was not competent and the Election Tribunal had no jurisdiction to entertain it. This has been made bristle clear by paragraph 53 (5), of the 1st schedule to the Electoral Act which provides as follows:-
“An objection challenging the regularity or competence of on election petition shall be heard and determined after the close of pleadings.”
The fundamental aspect of this matter is that the application of the 3rd and 4th respondents, leading to the granting of the reliefs being appealed against is that it was not taken during pre-hearing session.
It is also a matter of concern that no leave of court was sought or obtained before the motion on notice which the ruling being complained of was premised. Moreso there are no special circumstances disclosed to take the application before pre-hearing session.
It is trite that no motion is allowed to be taken before the commencement of pre-hearing session unless leave of the Tribunal is granted after special circumstances to do so have been disclosed. Pleadings would not be deemed closed until the petitioners were given time to responds to the reply of the 3rd and 4th respondents which the tribunal only deemed as properly filed on the same day it took the motion the subject matter of this appeal. Paragraph 47 (1) of the first schedule to the Electoral Act has provided as follows:
“No motion shall be moved and all motions shall come up at the Pre-hearing session except in extreme circumstances with leave of the Tribunal or court”.
The above position of the law has been judicially affirmed by the Supreme court in the case of OKEREKE v. YARADUA (2008) 12 NWLR (pt 1100) 95.
Thus the application of the 3rd and 4th respondents leading to the ruling being appealed against was incompetent and pre-mature as the condition precedent to its being heard and determined was not fulfilled and the tribunal had no jurisdiction to entertain the some.
This issue is therefore resolved in favour of the appellants.
The next issue is whether or not the Election Tribunal was right in its decision that the election petition filed by the appellants was filed outside the period allowed by the constitution and the Electoral Act.
It is undisputed that in this case the result of the election was declared on 10th day of April, 2011. Therefore the last day when the petition leading to the appeal was supposed to be filed was Sunday the 1st day of May, 2011 which was not on a working day and which by law is regarded as holiday. The following day 2nd day of May 2011 was declared a public holiday for the celebration of workers day by the Federal Government of Nigeria. The petition was filed on the next working day which was the 3rd day of May, 2011, the next available day.
Paragraph 4 of the petitioner’s reply has made it clear as follows:-
“The petitioners state that 21 days from 11/4/2011 end on Sunday 1st May, 2011 and the 2nd may, 2011 was a public day and work free day declared by the Federal Government of Nigeria for the celebration of workers.”
It is clear, therefore, that the election petition in this case was properly and validly filed on the next working day after the 1st and 2nd days of May, 2011 which was the 3rd May, 2011.
It is to be noted that section 285(5) of the 1999 constitution has provided that the election petition shall be filed within 21 days after the date of declaration of result in the computation of time within which to file an election petition in compliance with section 285 (5) of the 1999 constitution (as amended) the provision of the Interpretation Act is clearly applicable. Section 318 (4) of the 1999 constitution (as amended) has provided that Interpretation Act shall apply for the Purpose of interpreting the provisions of the constitution.
Section 318 (4) of the 1999 constitution (as amended) provides the interpretation Act shall apply for the Purposes of interpreting the provisions of the constitution.
Under section 150(1) (b) of the Interpretation Act it has been provided as follows:-
“where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday”
Section 15 (3) of the interpretation Act has also provided as follows:-
“where by an enactment any act is required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on which is not a holiday”
“Holiday” has been defined under section 15 (5) of the Interpretation Act as a day which is a Sunday as a public holiday.
The combined effect of section 15(2), (b), 15 (3) and 15 (5) of the Interpretation Act the election petition herein which had Sunday May 1 as the last day was validly filed on May, 3rd since May 2nd was also a public holiday. The decision of the tribunal that only section 15 (4) of the Interpretation Act is applicable to the petition herein is erroneous.
The provision of section 15(4) of the Interpretation Act that holidays shall not be reckoned to be port of the period of doing a thing if the period is less then six days. It is immaterial whether the holiday occurs at the beginning, middle or last day of the six-day period. This situation is inapplicable to the election petition herein since the number of days within which to file o petition is 21 days after the date of declaration of the result.
It is to be noted that in a situation where the period is more thon six days, which situation is covered by the provisions of sections 15 (2) (b) and 15 (3) of the Interpretation Act, the last day of doing the act is immaterial. Where the last day is a holiday, then the act can be validly done at the next working day. This situation is applicable to the election petition filed by the appellants herein. ft is clearly not possible for the appellants to file their petition on a Sunday or a public holiday. It is not the fault of the petitioners that the last day of filing their petition was a Sunday and or a public holiday requiring them to file on that day and striking out their petition for this default, it will amount to punishing them for on act which is not their fault.
It is, therefore, hereby held that the petition of the appellants was duly filed within the 21 days allowed by the constitution. This issue is resolved in favour of the appellants.
It is to be made clear that once a statute has set out a time limit for the performance of an act, the act must be taken to be fully performed if it is carried out within the last second of the time limited by the statute. Refer to ALHAJI IBRAHIM IDRIS v. PRINCE ABUBAKAR AUDU (2005) 1 NWLR (pt 908) 612 at 652.
In this case the last second limited time for filing of the present petition is 3rd May, 2011.
In considering the provisions of sections 15 (2) and 15 (3) of the Interpretation Act the Supreme Court in AUTO IMPORT EXPORT Vs. J.A.A. ADEBAYO & 2 ORS (2002) 18 NWLR (pt 799) 554 stated as follows:-
“In the light of all the above, it is plain that the mid-night of the 1st October, 1996 was ordinarily the last date the prescribed period of three months within which the Appellant was entitled to appeal as of right against the relevant decision of the Court of Appeal in question would have, ended.
However, the said 1st day of October, 1996 was a dies non”.
Accordingly, having regard to the above provisions of the law, the three month period prescribed by law within which the Appellant should have filed his appeal competently as of right must in all circumstances of the case end at mid-night of the next working day.”
It is trite that a court of law leans in favour of deciding cases on the merit and will be very cautious and slow in striking out or dismissing a case in limine unless there is no other option. This is because such a course has a tendency of denying the plaintiff his right to be heard. This has been made clear by the apex court in HENRY STEPHENS ENG. CO. LTD v. S A. YAKUBU (NIG) LIMITED (2002) 10 NWLR (pt 829; 522 in the following words:-
“Dismissal of a matter in limine is to be the greatest Punishment that a plaintiff can receive in the litigation process. By it, the plaintiff is shut away mid stream from the stream of litigation and he is in trouble. Therefore before the trial Judge dismisses an action, he must be very sure that he has no other option open to him…. The right to be heard is of fundamental and indispensable requirement of any judicial decision. See N.B.C.I Vs M.G.A. CO. LTD (1992) 2 NWLR (Pt 221) 71 (a) 85. J.A JOB v. GUARANTY TRUST BANK PLC (2004) 3 WRN 60 at 84. The Court of Appeal has further reiterated above position when it held as follows:-
“To my mind, it is evident that our judicial system would never permit a plaintiff to be driven from the judgment seat in this way without any court having considered his right”.
The Electoral Act considers joinder of person like the Resident electoral Commissioner to the petition. It does not forbid it. Thus section 144 (c) of the Electoral Act provides that where other official of the commission has been made Respondent to a petition, a legal practitioner employed by the commission shall represent such official. This decision clearly envisages the joinder of the Resident Electoral Commissioner.
It is to be made clear that the provision of paragraph 51(1) of the First Schedule to the Electoral Act cannot derogate from the above provision being a subsidiary legislation. In any case paragraph 51 (1) of the First Schedule does not prescribe the striking out of the name of the resident Electoral commissioner. The provision of section 137 (1) of the Electoral Act also does not prescribe the penalty of striking out for the joinder of any of the INEC officials joined to the petition. This issue is resolved in favour of the appellants.
In the final conclusion I am of the view that this appeal has merit and I allow it for the following reasons.
(i) The application leading to the grant of the reliefs which are being appealed herein was not competent and the Electoral Tribunal lacked jurisdiction to entertain same;
(ii) It is not in dispute that the last day for filing of this petition was a Sunday and that the following day, Monday, was declared a public holiday by the Federal Government.
(iii) The Applicable section of the interpretation Act is section 15 (2) and (3).
(iv) Section 15 (4) of the interpretation Act does not apply to this petition because the time provided for filing a petition is more thon six (6) days. It is only when the period provided for doing an act is not more thon six (6) days that section 15(4) applies.
(v) the petition was filed within time as envisaged by the constitution and the Interpretation Act; and
(vi) the name of the Resident Electoral Commissioner, Akwo Ibom State was wrongly struck out by the Election Tribunal.
Thus the appeal has merit and it is hereby allowed. The proceedings and decision of the Tribunal are hereby set aside. It is remitted to election tribunal for hearing on the merit. No order as to costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading while in draft form, the leading judgment just delivered by my learned brother, Ja’faru Mika,ilu, JCA. I agree with his review, reasoning and conclusion reached therein to the effect that the appeal is meritorious and it should be allowed. It is accordingly allowed by me. I also abide by the consequential orders made in the leading judgment, including the order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read before now the lead judgment of my learned brother Ja’afaru Mikatlu, JCA just delivered. I am in agreement with the conclusion arrived at, that the appeal is resoundingly meritorious based on the issue of the time of filing the petition.
Let me say the following however as my way of complimenting my learned brother. The facts of the case at the Tribunal are not in anyway disputed. The election under contention at the Tribunal was held on 9th April, 2011 and on 10th April 2011 the result was declared. Following the unambiguous but clearly set out provision of Section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the appellants who intended to challenge the result of the election had 21 days to do so from the 10th April, 2011 when the result was declared and by ordinary calendar reading of the 21 days the petition ought to be filed not later than 1st May, 2011 by excluding the day of the declaration.
It is not disputed that the 1st day of May, 2011 was a Sunday, and a work free day, while the following day, 2nd May, 2011 was declared a public holiday being the workers day and the first opportunity available to the appellants was the next working day which is 3rd May, 2011 and that was when he filed the petition at the Tribunal.
To successfully drive the appellants from the seat of justice by preventing him from filing his petition and having the same heard by the Tribunal, the respondents need to convince this court that the doors of the Tribunal were open on the two days that were work free days or that the petitioner otherwise had the opportunity of filing the petition before the 3rd May, 2011 but they have failed to do so.
Section 318 (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) makes the Interpretation Act applicable in interpretation of provisions of the constitution. It is clear from section 15 (3) of that Act that where by an enactment any act is authorized or required to be done on a particular day which becomes a holiday, the act is to be duly done on the next following day which is not a holiday. That provision is more apposite here than Section 15 (4) canvassed by the Respondents but which provides for an act to be done within 6 days.
I see the case of Auto-Import Export vs. Adebayo (2002) 18 NWLR (Pt.799) 554 cited in the lead judgment is illuminating and instructive enough on the issue.
The respondents having failed to adduce the desired concrete cogent and convincing evidence required to prevent the appellants from enjoying the right of hearing guaranteed to him by Section 36 of the constitution of the Federal Republic of Nigeria, 1999.
For this reason and the more elaborate ones contained in the lead judgment of Mika’ilu, JCA, I too allow the appeal with the consequential order in the lead judgment.
Appearances
LATEEF O. FAGBEMI, ESQ. SAN, For Appellant
AND
SAMUEL IKPO ESQ. For Respondent
