DR. (SIR) UCHE EZELIORA & ANOR V. TONY ONE WEEK MUONAGOR & ORS (2011)

DR. (SIR) UCHE EZELIORA & ANOR V. TONY ONE WEEK MUONAGOR & ORS

(2011)LCN/4867(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 1st day of November, 2011

CA/E/EPT/32/2011

RATIO

RULE OF INTERPRETATION OF STATUTE: REASON FOR EMPLOYING THE LITERAL INTERPRETATION IN INTERPRETING THE PROVISIONS OF A STATUTE

Thus it is a fundamental principle in the interpretation of statutes that except when it is impossible, a literal interpretation should be employed. This is because the real meaning and intention of a statute must be gathered from the plain and unambiguous expression used therein. See OYEGUN V. NZERIBE (2010) All FWLR Pt.516) 425. Indeed in the case of NYAME V. FEDERAL REPUBLIC OF NIGERIA (2010) All FWLR (Pt. 527) 618, the Supreme Court dwelling on how plain and unambiguous provisions of statutes are to be interpreted stated per Adekeye, JSC; at page 662 thus: – “In the interpretation of the provision of a statute or constitution, where the language used is plain and unambiguous, effect must of necessity be given to its plain and ordinary meaning. It is that clear and unambiguous language best conveys the intention of the lawmaker. The lawmaker must be taken to have intended the meaning expressed in such clear and unambiguous language and the court will not be at liberty to go outside the very provision in an attempt to ascertain the intendment and purpose of the provision. The obvious duty of the court in such a situation therefore is not the determination of what the lawmaker meant, but the meaning of the plain language used which best expresses his intention…” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

ELECTION PETITION: WHEN DOES THE PETITIONERS TIME TO FILE A REPLY BEGIN TO RUN

The Petitioners time to file a reply will not begin to run with the petition until the petitioner is served with the respondent reply to the petition. Having served the respondents with the petition on 25/7/211 (sic), the 5 days stipulated for petitioner to file reply lapsed on the 29th day of July, 2011. See the case of Ikoro V. Izunaso & Ors (2008) 4 LRECN 17. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

ELECTION PETITION; WHETHER THE TIME FOR FILING AN APPLICATION FOR PREHEARING IS DEPENDENT ON RESPONDENT FILING HIS OR THEIR REPLY

It is also imperative to note that the time for filing an application for prehearing, is not dependent on respondent filing his or their reply. See the case of Onyedebelu V. Nwaneri & Ors 2008 1 LRECN 207 at 244. The duty to be vigilant and ensure the sustenance of the petition by applying for pre trial conference, lies on the petitioner and his failure to be vigilant does not attract equity on his side, as equity aids the vigilant. The petitioner herein having failed to file his reply on 29/7/2011, the process so filed the next day is invalid. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

ELECTION PETITION: CONSEQUENCE OF THE FAILURE OF THE PETITIONER TO COMPLY WITH THE MANDATORY REQUIREMENT OF PARAGRAPH 16(1) AND PARAGRAPH 18(1)

The law is trite, that where a petitioner fails to fulfill a condition precedent to litigation of the petition before it, the petition is liable to be dismissed as an abandoned petition. The combined effect of paragraph 16(1) and (2) of the 1st schedule to the Electoral Act 2010 (As amended) strips the Tribunal of jurisdiction, and no extension of time is provided by paragraph 16(1) of same. The Tribunal has in effect been stripped of its jurisdiction, as (sic) the petition consequently suffers a cardiac arrest and pre-mature death for failure to comply with its clear provision, which gives the Tribunal no remnant or vestige of discretionary power to revive.
Failure on the part of the petitioner to comply with the mandatory requirement of paragraph 16(1) and paragraph 18(1) therein, vitiates the petition, and consequently condemns it to the realm of abandonment without redemption whatsoever, as it is with the present petition. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

INTERPRETATION OF STATUTE : INTERPRETATION OF SECTION 141 OF THE 2006 ELECTORAL ACT AS REGARDS THE COMPUTATION OF TIME WITHIN WHICH TO FILE AN ELECTION PETITION WHETHER IT INCLUDES THE DATE ON WHICH THE ELECTION RESULT WAS DECLARED

This Court dwelling on the needlessness of resorting to the Interpretation Act or the Federal High Court (Civil Procedure) Rules in interpreting Section 141 of the 2006 Electoral Act, against the backdrop of the clear and unambiguous provision of the said Section, stated per Abba JCA; at pages 358 – 359 thus: – “The words of a statute must be construed in accordance with the intent of the lawmaker. The primary duty of a court in the interpretation of a statutory provision is to give effect to the words used: Rossek v. ACB Ltd (1993) 8 NWLR (Pt.312)382. Section 141 of the Electoral Act is plain, clear, simple and admits of no ambiguity and must therefore be given its ordinary, natural and grammatical meaning. The section simply states that an election petition presented under the Electoral Act shall be presented within thirty (30) days from the date the result is declared. “From” in that provision connotes immediately, without any delay. In other words, it means the event will be reckoned from the stated period. Perhaps if we may say, that is what gives the section it (sic) uniqueness as election matters are sui generis. It simply means from the happening of the event and in the instant case, the declaration of the election result on 15 April, 2007. The intention of the legislature is clear and it is that the computation must include the date on which the event happened and that is the declaration of the result of the election and time will be begin to run from that date and 30 days will include the date on which the declaration was made and in the instant case, 15 April, 2007. There is no such contrary intention by the legislature as to exclude the date of the happening of the event and in this case the date of the declaration of result of election. This is based on clear characteristic feature and uniqueness of election petitions. The words, “from the date the election result was declared” makes the computation of time with reference to the happening of the event. In fact, this accords with the common sense approach as formulated by Chief Williams in his submission in Akeredolu v. Akinremi’s case and as endorsed by the Supreme Court, which inter alia stated that, where a period of time is prescribed by statute and that period is to be computed with reference to an event which had happened, then the question whether the computation must include or exclude the date on which the event happened, would depend on the true intention of the legislature. In the instant case, the true intention of the legislature is clear and plain and it is that computation of time must include the date on which the event happened and in this case 15 April, 2007 when the declaration of result of the election was made. Section 141 of the Electoral Act admits of no other interpretation. The section cannot therefore be construed for the benefit of the person affected by the interpretation or to the detriment of the person affected by the interpretation. There is no such lacuna in the provision of section 141 of the Act as to admit of a beneficial or detrimental interpretation with the view to excluding the date on which the event happened. There is in the circumstances no need to resort to the Interpretation Act or the Civil Procedure Rules of the Federal High Court in the interpretation of section 141 of the Electoral Act: Agbai v. Emmanuel Agbai & Anor. v. I.N.E.C & Ors. (2008) 14 NWLR (Pt. 1108) 1.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

Before Their Lordships

ABUBAKAR JEGA ABDULKADIRJustice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria

SAMUEL C. OSEJIJustice of The Court of Appeal of Nigeria

Between

1. DR. (SIR) UCHE EZELIORA
2. PEOPLES DEMOCRATIC PARTY (PDP)Appellant(s)

AND

1. TONY ONE WEEK MUONAGOR
2. ACTION CONGRESS OF NIGERIA
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. COLLATION OFFICER, OBOSI WARD
5. THE RETURNING OFFICER FOR IDEMILI NORTH CONSTITUENCYRespondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling delivered on 19/9/2011 by the National and State Houses of Assembly Election Tribunal, Awka Anambra State, (hereafter simply referred to as “the Tribunal”) dismissing Petition No. EPT/AN/HA/45/2011: as an abandoned Petition. This was sequel to the finding by the Tribunal that the Petitioners’ motion on notice by which they prayed the Tribunal for the issuance of pre-hearing notice lacked merit.
The Appellants as Petitioners instituted Petition No. EPT/AN/HA/45/2011 (hereafter simply referred to as “the Petition”) on 17/5/2011 before the Tribunal challenging the declaration and return of the 1st Respondent as the winner of the Anambra State House of Assembly election for Idemili North Constituency held on 26/4/2011. The 1st Appellant contested the questioned election on the platform of the 2nd Appellant; while the 1st Respondent contested the said election on the platform 2nd Respondent. The grounds of the Petition as set out in paragraph 6 thereof are: –
“i. The 1st Respondent who was returned as elected was not qualified to run as a candidate in the election in that he was not a registered voter.
ii. The 1st Respondent was wrongfully returned in that he did not score the majority of lawful votes cast in the election.
iii. The 1st Petitioner ought to have been returned as elected as he scored the majority of lawful votes cast in the election.
The reliefs sought by the Appellants as set out in paragraph 8 of the Petition read thus: –

“WHEREOF THE PETITIONERS CLAIM THAT IT BE DETERMINED AS FOLLOWS:
i. That the 1st Respondent did not score the majority of lawful votes cast in the election.
ii. That the return of the 1st Respondent be set aside.
iii. That the 1st Petitioner having polled the highest number of votes cast in the election be declared winner and returned as elected.
iv. That the 3rd Respondent be ordered to deliver to the 1st petitioner the Certificate of Return for the Idemili North Constituency of Anambra State House of Assembly.
ALTERNATIVELY
v. That it be declared that the election be nullified in that the 1st Respondent who was returned as the winner was not qualified to run as a candidate in the election.”
The 1st and 2nd Respondents (hereinafter simply referred to as “the 1st Set of Respondents”) filed a joint reply to the Petition on 19/7/2011. The Reply of the 1st Set of Respondents was served on the Appellants on 25/7/2011. The 3rd – 5th Respondents (hereafter simply referred to as “the 2nd Set of Respondents”) likewise filed a joint reply to the Petition on 21/6/2011. The Appellants filed their Petitioners’ Reply to the Reply of the 2nd Set of Respondents on 27/6/2011. As the Appellants also considered the Reply of the 1st Set of Respondents to have raised new issues, they filed their Petitioners’ Reply to the same on 30/7/2011 and on 5/8/2011, filed a motion on notice dated 4/8/2011 in which they sought for the following: –

“(a) Leave of the Honourable Tribunal allowing the Petitioner (sic) to bring the application for an order of issuance of Pretrial form TF007 outside the pretrial Conference.
(b) An Order for the issuance of Pre-Hearing Conference Notice as in Form TF007 accompanied by a Pre-Hearing Information Sheet as in Form TF008, to the Parties in this petition or their Legal Practitioners.
(c) And for such further or other order or orders as the Honourable Tribunal may deem fit to make in the circumstances.

The grounds of the application as set out in the motion are: –
“(a) The Petitioner (sic) filed his (sic) reply to the 1st and 2nd Respondents’ (sic) Reply on 30/07/2011.
(b) Pleadings in this petition closed upon the Petitioner (sic) filing and serving the said reply to the parties.”

The two Sets of Respondents in the Petition opposed the Appellants’ motion on notice dated 4/8/2011 and for this purpose duly filed their respective counter-affidavits and written addresses. The 1st Set of Respondents notwithstanding their opposition to the Appellants’ motion on notice dated 4/8/2011, also filed on 16/8/2011 a motion on notice dated 15/8/2011 in which they sought for: –
“AN ORDER PURSUANT TO PARAGRAPH 18(3) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010 (AS AMENDED) and THE INHERENT JURISDICTION OF THIS TRIBUNAL dismissing the Petitioners/Respondents’ petition as an abandoned petition.”
The grounds of the application as set out in the motion on notice are: –
“a) Pursuant to paragraph 16(1) of the First Schedule to the Electoral Act, 2010 (as amended), the Petitioners/Respondents are entitled to file their Petitioners’ Reply within five (5) days from the receipt of the Respondents’ Replies.
b) Pursuant to paragraph 16(2) of the First Schedule to the Electoral Act, 2010 (as amended), the time limited by paragraph 16(1) above shall not be extended.
c) The 1st and 2nd Respondents’ Reply to the petition was served on the Petitioners on 25th day of July, 2011.
d) The five (5) days limited for the Petitioners within which to file their Petitioners’ Reply to the 1st and 2nd Respondents’ Reply elapsed on 29th day of July, 2011 without the Petitioners filing Petitioners’ Reply to the 1st and 2nd Respondents’ Reply. The Petitioners’ Reply to the 1st and 2nd Respondents’ Reply filed on 30th, day of July, 2011 was not filed within time.
e) The seven (7) days limited for the Petitioners/Applicants to apply for the issuance of pre-hearing notice elapsed on 31st day of July, 2011 without the Petitioners/Respondents making the said application within the time allowed, there being no valid Petitioners’ Reply to the 1st and 2nd Respondents’ Reply.
f) Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) provides that – ‘within 7 days after the filing and service of the petitioner’s reply on the Respondent or 7 days after the filing and service of the Respondent’s reply, whichever is the case, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF007″.
g) In the absence of any valid Petitioners’ Reply to the 1st and 2nd Respondents/Applicants’ Reply, and the Petitioners’ Reply to the 3rd to 5th Respondents having been filed and served much earlier, the seven days limited for the Petitioners/Respondents to apply for the issuance of prehearing notice elapsed on 3rd August, 2011 without the Petitioners/Respondents applying for the issuance of pre-hearing notice.”
The Petitioners (now Appellants) being dissatisfied with the dismissal of the Petition as an abandoned Petition, lodged an appeal against the Ruling of the Tribunal in that regard. The Notice of Appeal filed on 26/9/2011 by the Appellants is dated 23/9/2011. The Notice of Appeal contains five grounds of appeal. The grounds of appeal shorn of their respective particulars read thus: –
“GROUNDS OF APPEAL
GROUND ONE
ERROR IN LAW
The learned judges of the lower tribunal erred in law and came to a wrong decision when they held the Petitioners’ Reply to the 1st and 2nd Respondents’ Reply filed on 30/7/2011 was filed out of time and proceeded to dismiss the petition as an abandoned petition.

GROUND TWO
ERROR IN LAW
The learned judges of the lower Tribunal erred in law when they held that the provisions of paragraphs 16(1), 18(1) & (3) of the 1st Schedule to the Electoral Act 2010 (As Amended) is very clear and therefore exterminates the need of any external or interpretative aid, and proceeded to dismiss the petition.

GROUND THREE
ERROR IN LAW
The learned judges of the lower Tribunal erred in law when they held that the petitioners/applicants (sic) motion filed on 5/8/2011 seeking of the tribunal for issuance of pre-hearing notice and information sheet Forms TF007 and TF 008 was filed out of time and proceeded to dismiss the motion.

GROUND FOUR
ERROR IN LAW
The learned judges of the lower tribunal erred in law when they refused to follow the Supreme Court (sic) in YUSUFU V. OBASANJO (sic), and proceeded to dismiss the petition as an abandoned petition.

GROUND FIVE
ERROR IN LAW
The learned judges of the lower tribunal were wrong in dismissing the petition as an abandoned petition on the premises that the Petitioners’ Reply to the 1st and 2nd Respondents’ Reply was filed out of time.”
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument is dated 10/10/2011 and filed on the same date. Appellants filed Reply Briefs to the respective Briefs of Argument of the two Sets of Respondents. The two Reply Briefs of Argument of the Appellants in this regard are dated 19/10/2011 and filed on the same date. All the Briefs of Argument filed by the Appellants were settled by Prof. Ilochi Okafor, SAN; Arthur Obi Okafor, SAN; B.O. Okpemandu Esq.; F.I. Aniukwu; and C.I. Okafor. The Brief of Argument of the 1st and 2nd Respondents dated 14/10/2011 and filed on the same date was settled by Chief Emeka Ngige, SAN; and Hon. Bona Oraekwe; while that of the 3rd – 5th Respondents dated 14/10/2011 and filed on the same date was settled by Alhaji S.O. Ibrahim (Chief Legal Officer, INEC). The appeal was entertained on 26/10/2011 and all learned counsel for the parties adopted and relied on the respective Briefs of Argument they filed on behalf of their clients in respect of their positions in the appeal.

In their Brief of Argument, the Appellants formulated a lone issue from their five grounds of appeal as arising for determination in the appeal. The Issue reads: –
“Whether the dismissal ordered by the lower Tribunal on the ground that the petition filed by the Appellants was abandoned is sustainable.”
The 1st Set of Respondents in their Brief of Argument, adopted the Issue formulated by the Appellants, as arising for determination in the appeal.
The 2nd Set of Respondents in their Brief of Argument equally formulated a lone Issue as arising for determination in the appeal. The Issue reads thus: –
“Whether the trial Tribunal was not right to have dismissed the Petition.”
The appeal will be resolved on the Issue as formulated by the Appellants and which the 1st Set of Respondents adopted. Indeed the Issue arising for determination in the appeal as formulated by the 2nd Set of Respondents, in my considered view is of the same purport with that formulated by the Appellants.
Dwelling on the Issue arising for determination in the appeal, the Appellants having first set out the facts that are not in dispute in relation to the processes filed in the Petition and the dates of the service of the said processes on parties, submitted in the main that the Tribunal was wrong in computing the five days within which they (Appellants) had to file their Petitioners’ Reply to the Reply of the 1st Set of Respondents, from the date of the service of the Reply of the said 1st Set of Respondents, on them. The Appellants not only accused the Tribunal of failing to give a thorough consideration to the submissions in their further written address in opposition to the counter affidavit dated 19/8/2011 filed by the 1st Set of Respondents, but also that the Tribunal failed to consider authorities cited to it, particularly those of Iyirhiaro v. Usoh (1999) 4 LRECN 558 at 569 – 570; and Yusuf V. Obasanjo (2003) 16 NWLR (Pt. 847) 534 at 608-609. The Appellants extensively argued to the effect that it was wrong of the Tribunal not to have read the provision of Paragraph 16(1) of the First Schedule to the Electoral Act 2010 (as amended) in conjunction with the provision of Order 48 (1) of the Federal High court (civil Procedure) Rules 2009.
(NB. The Electoral Act 2010 (as amended) and First Schedule to the Electoral Act 2010 (as amended) will hereafter be simply referred to as “the Electoral Act”; and “First Schedule” respectively).
It is the submission of the Appellants that the general practice of the courts, is to read statutes on the same subject matter together. The Appellants further said that statutes are in respect of the same subject or matter where they relate to the same thing or person or have a common purpose and the case of Nigerian Army v. Aminun-Kano (2010) 41 NSCQR (Part 1) 76 at 109 was cited in aid.
The Appellants urged to the effect that this Court should resolve in their favour the Issue arising for determination in the appeal and hold that in computing the time for the filing of their Petitioners’ Reply, time will start to run the next day from the date of the service on them of the Reply of the 1st Set of Respondents, That as the Reply of the 1st Set of Respondents was served on them (Appellants) on 25/7/2011, the time to file their Petitioners’ Reply started running on 26/7/2011 and that the Petitioners’ Reply filed on 30/7/2011 was eminently filed within the five days contemplated by Paragraph 16(1) of the First Schedule.
Dwelling on the Issue arising for the determination in the appeal in their Brief of Argument, the 1st Set of Respondents not only stated that the facts of the case are not in dispute, but also that the law applicable to the said undisputed facts was equally not in dispute. What is in dispute according to the 1st Set of Respondents is the interpretation to be accorded the words “within” and “from” as used in Paragraph 16(1) of the First Schedule. The 1st Set of Respondents in the main submitted that this Court has in a plethora of authorities held that in construing the words “within” and “from”, the day of event is included and that there is no need to have recourse to the Interpretation Act and the Federal High Court (Civil Procedure) Rules. A host of cases were cited in the Brief of Argument of the 1st Set of Respondents in aid of the submission. The 1st Set of Respondents submitted that the Tribunal dealt with all the points raised before it by the Appellants. The 1st Set of Respondents also dwelled extensively on why the cases of Iyirhiaro and Yusuf (both supra) were not applicable to the matter before the Tribunal and that the Tribunal was correct when it did not apply the cases. The 1st Set of Respondents urged this Court to affirm the decision of the Tribunal and come to the same conclusion that the Appellants were out of time in filing the Petitioners’ Reply on 30/7/2011, and a fortiori were also out of time in filing on 5/8/2011 their application for leave to issue pre-hearing information sheets.
The 2nd Set of Respondents in their Brief of Argument argued in the main that the Tribunal was right in the manner it computed time having regard to the case of Otito v. Odidi (2011) 7 NWLR (Pt. 1245) 108 at 129; and the decision (unreported) of this very Court delivered on 22/9/2010 in APPEAL NO. CA/E/EPT/07/2009 – Dr. Michael Chukwudubem Ewii & Anor. V. PDP & Ors. The Court was urged to affirm the decision of the Tribunal dismissing the Petition as an abandoned Petition and cases considered to be relevant to their various submissions were cited.
In their Reply Brief to the Brief of Argument of the 1st Set of Respondents, the Appellants reiterated the point that the Tribunal did not consider the case of Yusuf (supra) that was cited to it. They also dwelled on the issue as to whether or not the judgment (decision) in the case was an obiter dictum vis-a-vis the facts of the applications ruled upon by the Tribunal.
In their Reply Brief to the Brief of Argument of the 2nd Set of Respondents, the Appellants submitted that the decision of this Court in APPEAL NO. CA/E/EPT/07/2009 – Dr. Michael Chukwudubem Ewii & Anor. V. PDP & Ors. (supra) is not one that should bind this Court in deciding whether they (Appellants) filed their Reply within five days as provided in Paragraph 16(1) of the First Schedule, particularly as the said decision was “not considered in line with Order 48 Rule 1 of the High Court Civil Procedure Rules”.
The ruling of the Tribunal appealed against is at pages 179 – 194 of Volume 1 of the record of appeal (hereafter simply referred to as “the record of appeal”). It is clear from the ruling that the Tribunal on 16/9/2011 consolidated for hearing the motion on notice of the Appellants dated 4/8/2011 and filed on 5/8/2011 and that of the 1st Set of Respondents dated 15/8/2011 and filed on 16/8/2011.
In the single ruling delivered on 19/9/2011 in respect of the two consolidated motions on notice, the Tribunal at page 187 of the record of appeal set out the two main issues arising for determination in the two motions on notice to be: –
“(1) Whether the petitioner/applicant upon a consideration of his motion filed on 5/8/2011 was still within the time frame of the law, which enable him to seek the leave of this Honourable Tribunal pursuant to paragraph 47(2) (3) and 18(1) of the 1st schedule to the electoral act (sic) as (amended) for issuance of pre hearing notice.
(2) Would the petition be so properly called an abandoned petition, liable to be dismissed?”
The Tribunal further expressed that ‘the main question for determination looming sky high for answer is the computation of time, and the interpretation of the words “Shall” and “From” “within” as expressed in framing the provisions for presentation of election petitions. ”
Having set out the issues calling for determination in the two motions on notice it consolidated for hearing, as re-produced above, the Tribunal proceeded at pages 188 – 190 of the record to state thus: –
“What is the provision of the electoral act (sic) it relates to the issues at hand paragraph 16(1) of 1st schedule (sic) to the Electoral Act 2010 as (amended), is headed Petitioner Reply (sic).
16(1) if a person in his reply to the election petition raises new issues of facts in defence of his case which the petitioner has not dealt with, the petitioner shall be entitle (sic) to file in the registry within 5 days from the receipt of the respondent reply, a petitioner reply in answer to the new issues of fact.
Paragraph 18 = deals with Pre hearing session and scheduling (1) Within 7 days to filing and service of the petitioner reply on the respondent on (sic) 7 days after the filing and service of the respondent reply whichever is the case the petitioner shall applying for issuance of pre hearing notice as in form TF007 18(2) upon application by a petition (sic) under sub-paragraph (1) of this paragraph, the tribunal or court shall issue to the parties or their legal practitioner (if any) a pre-hearing conference Notice as the Form TF007 accompanied by a pre hearing information sheet as in form TF008.
In a recent case, the Court of Appeal (Benin division (sic)) Otito V. Odile (2011) 7 NWLR pt 1145 108 at 129, also cited and referred to by learned counsel to the 1st respondent herein, the word within was explained to mean that an election petition arising from the date of election must be presented any time between 30 days from the date the result was declared and it is inclusive of both dates.
The case of Ayogu V. Nnamani (supra) referred to by learned counsel to the petitioner had to do with the 2002 Electoral Act which provides thus-
The respondent shall within 14 days of service of the petition on him file on the registry, his reply’.
The Court of Appeal held that the absence of the word from in the Electoral Act 2002, gave room to the tribunal to resort to the interpretation (sic) Act because the provision was not specific on from what day the computations (sic) of time will commence.
Happily however, the electoral act (sic) 2010 (as amended) leaves no one in doubt as the wordings are clear precise and unambiguous in this provisions (sic).
The word (sic) within 5 days from the receipt of the respondent reply, a petitioner reply in answer to the new issues of Fact, clearly shows that the petitioner having been served with respondent reply on 25/7/2011, 5 clear days from that day within which the petitioner was to have filed a reply (if any) is the 29th, day of July, 2011.
The present motion on notice filed by petitioner/applicant seeking leave of the tribunal for issuance of pre hearing notice and information sheet Form TF007 and TF008, as at the 5th days (sic) of August, 2011 when it was filed, it was clearly filed out of time.
The exhibit A annexed to the 1st respondent (sic) application the photocopy of the proof of service on the 3rd – 5th respondents reveals vividly that they were served with petitioners (sic) process on 25/7/2011, which is not in dispute by all the parties.
The motion on notice filed on 5/8/2011 by the petitioner applicant, to which this ruling now relates, shows that upon computation of time from 25th of July, (5 days) within which petitioner ought to file a reply to respondent reply was 29th day of July, 2011.
Having failed to do so, the motion he seeks leave of court for issuance of prehearing notice ought to have been filed within 7 days from that 25th day of July, 2011, i.e. the day to file that motion would lapse on 31st day of July 2011.
The Petitioners time to file a reply will not begin to run with the petition until the petitioner is served with the respondent reply to the petition.
Having served the respondents with the petition on 25/7/211 (sic), the 5 days stipulated for petitioner to file reply lapsed on the 29th day of July, 2011. See the case of Ikoro V. Izunaso & Ors (2008) 4 LRECN 17.
Although the Tribunal occasionally made references to “petition” in the portions of the ruling quoted above, it is in my considered view clear as crystal from the motions on notice the Tribunal entertained as well as the provisions of the First Schedule particularly Paragraph 16(1) interpreted in the ruling appealed against, that the Tribunal was concerned with the computation of time as it relates to the filing of a Petitioner’s Reply to a Respondent’s Reply and only used the interpretation of the words “within” and “from” as used in the provision of the Electoral Act relating to the presentation of a Petition as a guide in its interpretation of the same words as used in Paragraph 16(1) of the First Schedule.
The Tribunal is clearly correct that Paragraph 16(1) of the First Schedule applies to the filing of a Petitioner’s Reply to a Respondent’s Reply.
Paragraph 16(1) of the First Schedule states thus: –
“If a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the Registry within five (5) days from the receipt of the respondent’s reply, a petitioner’s reply in answer to the new issues of fact, so however that –
(a) the petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him; and
(b) the petitioner’s reply does not run counter to the provisions of subparagraph (1) of paragraph 14 of this Schedule.”
The status of “Schedule” to an Act or Law and the proper construction thereof, amongst others, was dealt with by this Court in the case of ADEBUSUYI V. INEC & ORS [2010] All FWLR (Pt.545) 202. At pages 227 – 228 the Court per Ogunbiyi, JCA; stated thus: –
“… The authority in the case of Oputeh v. Ishida had at great extent dealt with construction and interpretation of statutes as well as the limitation of a schedule. At page 58 of the report for instance, Uwaifo JCA said:
“A schedule to a statute is regarded as forming part of the Statute. In Maxwell on Interpretation, 12th Edition, page 12, it is stated:
“Schedules to statutes are as much part of an Act as any other, and may be used in construing provisions in the body of the Act, Similarly, provisions in a schedule will be construed in the light of what is enacted in the section.”
Also in the same authority at page 69 of the report, Achike JCA (as he then was and of blessed memory) said:
“It is a basic and fundamental rule of construction that where a word in a statute or legal document is plain, the court is enjoined to give its ordinary or popular meaning.”
Further still and at page 70 of the said report on the limitation of the use of schedules, the learned jurists said:
“Ordinarily, provisions set out in schedules to enactments are distinct from the substantive sections, but for purposes of construing the statute, the schedule may be useful and may be referred to in resolving construction problems in the sections of the statutes. The only caveat is that on no account should provisions in the schedules override those enacted in the body of the statute.”
As rightly submitted by learned appellant’s counsel therefore, the schedule is part of the act and used in construing provisions in the body of the Act. The provisions in the schedule will therefore be construed in the light of what is enacted in the Act and cannot override the body of the statute…”
In my considered view, it is apparent from the portions of the ruling of the Tribunal that have been re-produced hereinbefore in this judgment, that the Tribunal, aside from holding itself out as giving the words in Paragraph 16(1) of the First Schedule which it found to be clear and unambiguous, their literal and ordinary meanings, also relied on cases decided by this Court in which the words “within” and “from” as used in the provision of Paragraph 16(1) (supra) had been interpreted.
There is hardly any of the canons of interpretation that is not designed for the purpose finding out and giving effect to the intention of the legislature in relation to the statute or provision of a given statute that calls for interpretation. Thus it is a fundamental principle in the interpretation of statutes that except when it is impossible, a literal interpretation should be employed. This is because the real meaning and intention of a statute must be gathered from the plain and unambiguous expression used therein. See OYEGUN V. NZERIBE (2010) All FWLR Pt.516) 425. Indeed in the case of NYAME V. FEDERAL REPUBLIC OF NIGERIA (2010) All FWLR (Pt. 527) 618, the Supreme Court dwelling on how plain and unambiguous provisions of statutes are to be interpreted stated per Adekeye, JSC; at page 662 thus: –
“In the interpretation of the provision of a statute or constitution, where the language used is plain and unambiguous, effect must of necessity be given to its plain and ordinary meaning. It is that clear and unambiguous language best conveys the intention of the lawmaker. The lawmaker must be taken to have intended the meaning expressed in such clear and unambiguous language and the court will not be at liberty to go outside the very provision in an attempt to ascertain the intendment and purpose of the provision. The obvious duty of the court in such a situation therefore is not the determination of what the lawmaker meant, but the meaning of the plain language used which best expresses his intention…”
This Court in numerous decisions has had cause to interpret the words “within” and “from” as used in relation to the computation of the time for the presentation of an Election Petition in Section 141 of the 2006 Electoral Act. In the case of KUMALIA V. SHERIF (2010) All FWLR (Pt.521) 1497, this Court having stated to the effect that the courts must adopt the literal and plain ordinary meaning, where the words of a statute are clear and unambiguous and that the courts in such situations are precluded from resorting to any aid or other canon of interpretation, held that time within which to present an election petition started to run on the day the result was declared and not the following day. It is worthy to note that Salami, JCA; (as he then was) and whose dictum in the case of Iyirhiaro v. Usoh (supra), the Appellants set out in extenso at pages 6 – 7 of their Brief of Argument was in the panel of the five Justices of the Court of Appeal (i.e. Full Court) that decided the KUMALIA case (supra). Also the case of YUSUF (supra) which the Appellants relied on in aid of their stance that the computation of the time within which they were to file the Petitioners’ Reply to the Reply of the 1st Set of Respondents should commence on the date following the service on them of the said Respondents’ Reply, was not countenanced by this Court as being applicable in the computation of the time within which an Election Petition should be presented in the face of the clear and unambiguous provision of Section 141 of the 2006 Electoral Act.
Still on the interpretation to be accorded clear and unambiguous provisions of a statute is the case of UMARU & ANOR. V. ALIYU & ORS. (2010) All FWLR (Pt. 508) 329. This Court dwelling on the needlessness of resorting to the Interpretation Act or the Federal High Court (Civil Procedure) Rules in interpreting Section 141 of the 2006 Electoral Act, against the backdrop of the clear and unambiguous provision of the said Section, stated per Abba JCA; at pages 358 – 359 thus: –
“The words of a statute must be construed in accordance with the intent of the lawmaker. The primary duty of a court in the interpretation of a statutory provision is to give effect to the words used: Rossek v. ACB Ltd (1993) 8 NWLR (Pt.312)382. Section 141 of the Electoral Act is plain, clear, simple and admits of no ambiguity and must therefore be given its ordinary, natural and grammatical meaning. The section simply states that an election petition presented under the Electoral Act shall be presented within thirty (30) days from the date the result is declared. “From” in that provision connotes immediately, without any delay. In other words, it means the event will be reckoned from the stated period. Perhaps if we may say, that is what gives the section it (sic) uniqueness as election matters are sui generis. It simply means from the happening of the event and in the instant case, the declaration of the election result on 15 April, 2007.
The intention of the legislature is clear and it is that the computation must include the date on which the event happened and that is the declaration of the result of the election and time will be begin to run from that date and 30 days will include the date on which the declaration was made and in the instant case, 15 April, 2007. There is no such contrary intention by the legislature as to exclude the date of the happening of the event and in this case the date of the declaration of result of election. This is based on clear characteristic feature and uniqueness of election petitions. The words, “from the date the election result was declared” makes the computation of time with reference to the happening of the event. In fact, this accords with the common sense approach as formulated by Chief Williams in his submission in Akeredolu v. Akinremi’s case and as endorsed by the Supreme Court, which inter alia stated that, where a period of time is prescribed by statute and that period is to be computed with reference to an event which had happened, then the question whether the computation must include or exclude the date on which the event happened, would depend on the true intention of the legislature. In the instant case, the true intention of the legislature is clear and plain and it is that computation of time must include the date on which the event happened and in this case 15 April, 2007 when the declaration of result of the election was made.
Section 141 of the Electoral Act admits of no other interpretation. The section cannot therefore be construed for the benefit of the person affected by the interpretation or to the detriment of the person affected by the interpretation. There is no such lacuna in the provision of section 141 of the Act as to admit of a beneficial or detrimental interpretation with the view to excluding the date on which the event happened. There is in the circumstances no need to resort to the Interpretation Act or the Civil Procedure Rules of the Federal High Court in the interpretation of section 141 of the Electoral Act: Agbai v. Emmanuel Agbai & Anor. v. I.N.E.C & Ors. (2008) 14 NWLR (Pt. 1108) 1.”
Again it is in my view worthy to note that Yusuf’s case (supra) was cited to the Court in the case under reference but was not applied. Again, on the interpretation to be accorded the words “from” and “within” is the case of OLANIYI V. SOJI (2010) All FWLR (Pt.551) 1576 where this Court against the backdrop of the fundamental canon of interpretation to wit: that clear and unambiguous provisions of a statute should be given their literal grammatical meanings, stated the meanings of the word “from” to be “starting at a particular time and also indicates starting from a point in place or time”; and the word “within” to mean “inside, enclosed by something within those four walls, not outside the limit of something, not beyond”.
The Appellants have contended in their Brief of Argument to the effect that since the Electoral Act did not provide for how the computation of time for the filing of their Petitioners’ Reply to the Reply of the 1st Set of Respondents should be done, recourse should be made to Order 48(1) of the Federal High Court (Civil Procedure) Rules. I do not think that anything could be farther from the truth than the contention of the Appellants. This is against the backdrop of the interpretation of the words “within” and “from” as used in Paragraph 16(1) of the First Schedule by this Court on numerous occasions as can be seen from the cases hereinbefore cited. All the cases in my considered view eloquently go to show that when the words “within” and “from” are used in the provision of a statute in relation to an act that has been performed, the court in giving a literal and ordinary meaning to the provision must compute the time limited for the doing of the act inclusive of the date that the act was done. In other words, the words “within” and “from” by their respective ordinary meanings have unequivocally indicated the point in time computation of time should start and end. All that I am saying is that the use of the words “within” and “from” in the provision of Paragraph 16(1) of the First Schedule have unequivocally fixed the computation of the five days the Appellants had to file their Petitioners’ Reply to the Reply of the 1st Set of Respondents, to commence on the very date the Appellants were served with the Reply of the said 1st Set of Respondents. Nothing in my considered view could be clearer. Therefore recourse to the Federal High Court (Civil procedure) Rules as propounded by the Appellants for the purpose of computing the time within which they were to file their Petitioners’ Reply, does not arise and is definitely uncalled for in the face of the clear and unambiguous provision of Paragraph 16(1) of the First Schedule. In other words the provision of Paragraph 16(1) of the First Schedule not being in any manner unclear or ambiguous definitely required no resort to the Federal High Court (Civil Procedure) Rules as the Appellants have contended, or indeed any other interpretative aid.
A comparison of the provision of Section 134(1) of the extant Electoral Act and Section 141(1) of the 2006 Electoral Act shows that the words “within” and “from” as used in the 2006 Electoral Act have been replaced with the words “within” and “after’ in the extant Electoral Act. This is aside from the reduction of the period for the presentation of an election petition to 21 days under the extant Electoral Act. The provision relating to Petitioner’s Reply in both the 2006 Electoral Act and the extant Electoral Act however not only both remain Paragraph 16(1) but are ipsissima verba. It is my considered view that the interpretation the Appellants are propounding in respect of Paragraph 16(1) of the First Schedule based on Order 48(1) of the Federal High Court (Civil Procedure) Rules, is designed to surreptitiously amend the provision of Paragraph 16(1) in question to be in line with the interpretation that is to be accorded the provision of Section 134(1) of the extant Electoral Act having regard to the words “within” and “after” as used therein and which words in my considered view cannot be accorded the same interpretation as “within” and “from”. I am also of the considered view that it is not for the courts to amend the provision of Paragraph 16(1) of the First Schedule by according it the interpretation propounded by the Appellants based on Order 48(1) of the Federal High Court (Civil Procedure) Rules. To accede to the interpretation propounded by the Appellants will clearly be doing serious violence to the clear and unambiguous meaning of the provision of Paragraph 16(1) of the First Schedule. If the lawmakers intended the provision of Paragraph 16(1) to be interpreted in the same manner as the provision of Section 134(1) of the extant Electoral Act, they ought to have equally couched or framed the provision of Paragraph 16(1) of the First Schedule in the manner in which the provision of Section 134(1) (supra) was couched or framed. Though the position of the law is that “Schedules” to statutes are as much part of an Act as any other, and may be used in construing provisions in the body of the Act and similarly that provisions in a schedule will be construed in the light of what is enacted in the section, the position in my considered view definitely cannot justify according the provisions of Section 134(1) of the extant Electoral Act and Paragraph 16(1) of the First Schedule the same interpretation and which will be the case if the interpretation propounded by the Appellants based upon Order 48(1) of the Federal High Court (Civil Procedure) Rules is acceded to. The manner of computation of time for the presentation of an Election Petition as provided for in Section 134(1) of the Electoral Act is not idem with the manner of computation of time for the filing of a Petitioner’s Reply to a Respondent’s Reply.
It is not in dispute that the Reply of the 1st Set of Respondents to the petition was served on the Appellants on 25/7/2011. It is also not in dispute that the Appellants’ Reply to the Reply of the 1st Set of Respondents was filed on 30/7/2011. Having regard to the settled interpretation to be accorded the words “within” and “from” as used in the Paragraph 16(1) of the First Schedule that clothes the Appellant with the right to file the Petitioners’ Reply in question, they (i.e. Appellants) had five days inclusive of the date of the service of the Reply of the 1st Set of Respondents on them within which to file their Petitioners’ Reply. By simple arithmetic it is therefore obvious that the latest time they had to file their Petitioners’ Reply lapsed on 29th July, 2011 as found by the Tribunal. The Tribunal in my view was very correct when it did not apply the Order 48(1) of the Federal High Court (Civil Procedure) Rules in computing the time within which the Appellants should have filed their petitioners’ Reply in the face of the service upon them of the Reply of the 1st Set of Respondents on 25/7/2011.
The Tribunal having rightly found that the Appellants’ Petitioners’ Reply ought to have been filed at the latest on 29/7/2011, consequently declared or held that the Petitioners’ Reply filed by the Appellants on 30/7/2011 was filed outside the five (5) days stipulated for that purpose by Paragraph 16(1) of the First Schedule and therefore invalid. The Tribunal also found that the Appellants’ motion on notice filed on 5/8/2011 (and by which they sought for the issuance of pre-hearing notice and information sheets) was filed out of time in the light of the provision of Paragraph 18(1) of the First Schedule. The provision of Paragraph 18(1) of the First Schedule states to the effect that a petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007 within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply, whichever is the case. The reasoning of the Tribunal in arriving at the conclusion that the Appellants’ motion on notice by which they sought for the issuance of pre-hearing notice and information sheets was filed out of time as deducible from the ruling appealed against, is that since the Reply of the 1st Set of Respondents was served on the Appellants on 25/7/2011 and since the Appellants did not have a valid Petitioners’ Reply in the Petition, the computation of the 7 days period within which the Appellants ought to have filed their application pursuant to the provision of Paragraph 18(1) of the First Schedule, commenced from the aforementioned 25/7/2011 and lapsed on 31/7/2011. The Tribunal further reasoned that the failure of the Appellants to have filed the motion on notice by which they prayed for the issuance of prehearing notice and information sheets between 25/7/2011 and 31/7/2011 justified the deeming of the Petition filed on 17/5/2011 as an abandoned petition. I consider it expedient to now re-produce portions of the ruling from which the above have been deduced in order to show that all that I have said before now, are not figments of my imagination.
At pages 189 – 194 of the record, the Tribunal stated thus: –
“The word (sic) within 5 days from the receipt of the respondent reply, a petitioner reply in answer to the new issues of Fact, clearly shows (sic) that the petitioner having been served with respondent reply on 25/7/2011, 5 clear days from that day within which the petitioner was to have filed a reply (if any) is the 29th day of July, 2011.
The present motion on notice filed by petitioner/applicant seeking leave of the tribunal for issuance of pre hearing notice and information sheet Form TF007 and TF008, as at the 5th days (sic) of August, 2011 when it was filed, it was clearly filed out of time.
The exhibit A annexed to the 1st respondent (sic) application the photocopy of the proof of service on the 3rd – 5th respondents (sic) reveals vividly that they were served with petitioners (sic) process on 25/7/11, which is not in dispute by all the parties.
The motion on notice filed on 5/8/2011 by the petitioner applicant, to which this ruling now relates, shows that upon computation of time from 25th of July, (5 days) within which petitioner ought to file a reply to respondent reply was 29th day of July, 2011.
Having failed to do so, the motion he seeks leave of court for issuance of prehearing notice ought to have been filed within 7 days from that 25th day of July, 2011, i.e. the day to file that motion would lapse on 31st day of July 2011.
The Petitioners time to file a reply will not begin to run with (sic) the petition until the petitioner is served with the respondent reply to the petition.
Having served the respondents with the petition on 25/7/2011 (sic), the 5 days stipulated for petitioner to file reply lapsed on the 29th day of July 2011. See the case of Ikoro V. Izunaso & Ors (2008)4 LRECN 17.
That the tribunal has no power to extend time for filing reply to the respondent (sic) reply, the case of Hasidu V. Goje (2003) 15 NWLR pt 843 at 352 – 380. See paragraph 16(2) of 1st schedule.
By the paragraph 18(1) and (3) of the 1st schedule to the electoral act (sic) 2010 (as amended) it must be borne in mind that the tribunal does not suo motu conduct or cause a pre-hearing session to be head (sic).
Such a session can only be heard upon application by either the petitioner or the Respondent to the petition. See the case of Okereke V. Ya’adua (sic) (2008) 12 NWLR pt 1120, 95 at 128.
It is also imperative to note that the time for filing an application for prehearing, is not dependent on respondent filing his or their reply. See the case of Onyedebelu V. Nwaneri & Ors 2008 1 LRECN 207 at 244.
The duty to be vigilant and ensure the sustenance of the petition by applying for pre trial conference, lies on the petitioner and his failure to be vigilant does not attract equity on his side, as equity aids the vigilant.
The petitioner herein having failed to file his reply on 29/7/2011, the process so filed the next day is invalid.
Moreover the Electoral Act makes no provision for extension of time to do so. We do not agree with learned counsel to the petitioner herein that filing of the petitioner (sic) reply on 30/7/2011, and they (sic) said motion on notice filed on 5/8/2011 was done within the time frame. What is more of the truth is that paragraph 16(1) of 1st schedule of the electoral act (2010) (sic) and paragraph 18(1) therein clearly states (sic) that 5 days from receipt of respondent (sic) reply and 7 days after filing and (sic) petitioner (sic) reply on respondent, the petitioner shall apply for insurance (sic) for pre hearing notice…
The petitioner herein having failed to file his reply to respondent reply as at the 29th July, 2011 only to wake up the nest (sic) day and attempted to draw the wool across the eye of the tribunal by filing on the 30th July, 2011 and proceeded to file the motion on notice seek (sic) leave of court for issuance of pre-hearing notice. (sic) 5/8/2011 cannot be allowed…
In the light of all the forgoing (sic) dueling (sic) on the fact that petitioner was already out of time to file his reply to the respondent (sic) reply which is not allowed by provision of extension of time see paragraph 16(2) of 1st schedule therein the fact that he ought to have filed the present motion on notice to seek leave of this tribunal to be issued pre-hearing notice need not be overemphasized.
lf the motion on notice filed by petitioner/applicant on 5/8/2011 is thrown out for being filed out of time as the time to have filed same lapsed since the 31st day of July, 2011, then the petition filed by the petitioner on 17/5/2011 would be deemed abandoned petition, for which the 1st respondent/applicant by the motion on notice filed on 16/8/2011 is praying the tribunal for an order to dismiss the said petition, as an abandoned petition.
The 1st respondent/applicant pursuant to paragraph 18(3) of the 1st schedule to the Electoral Act (2010) (As amended) has filed this motion on notice which is before us for determination as well.
The law is trite, that where a petitioner fails to fulfill a condition precedent to litigation of the petition before it, the petition is liable to be dismissed as an abandoned petition.
The combined effect of paragraph 16(1) and (2) of the 1st schedule to the Electoral Act 2010 (As amended) strips the Tribunal of jurisdiction, and no extension of time is provided by paragraph 16(1) of same.
The Tribunal has in effect been stripped of its jurisdiction, as (sic) the petition consequently suffers a cardiac arrest and pre-mature death for failure to comply with its clear provision, which gives the Tribunal no remnant or vestige of discretionary power to revive.
Failure on the part of the petitioner to comply with the mandatory requirement of paragraph 16(1) and paragraph 18(1) therein, vitiates the petition, and consequently condemns it to the realm of abandonment without redemption whatsoever, as it is with the present petition Accordingly therefore, the motion on notice filed on 5/8/2011 by the petitioner/applicant praying for issuance of pre-hearing, notice lacks merit and is hereby dismissed.
Consequently therefore, the petition filed on 17/5/2011 having become abandoned, the said motion on notice filed by 1st respondent/applicant on 16/8/2011 succeeds (sic). It is hereby granted as prayed.
Accordingly therefore the petition which is referred now to as an abandoned petition is hereby dismissed.”
I cannot but first observe that the Tribunal was in serious error to have found to the effect that the time within which the Appellants ought to have applied for pre-hearing notice or made their application dated 5/8/2011 in that regard, lapsed on 31/6/2011, even if 25/7/2011 being the date on which the Appellants were served with the Reply of the 1st Set of Respondents, is taken as the date on which the pleadings in the Petition closed or was completed (and this is not conceded). The Tribunal in coming to the finding in question clearly computed the 7 days period stipulated in Paragraph 18(1) of the First Schedule from the 25th (i.e. the date of the happening of the event to wit: service of the Reply of the 1st Set of Respondents on the Appellants). The Tribunal by doing this was clearly oblivious of the fact that the operative words in Paragraph 18(1) of the First Schedule are “within” and “after” and not “within” and “from” as used in Paragraph 16(1) of the First Schedule. It is my considered view, that just as the clear provision of Paragraph 16(1) of the First Schedule makes the date of service of a respondent’s reply on the petitioner inclusive in the computation of the 5 (five) days within which the petitioner has to file his Petitioner’s Reply; the clear and unambiguous provision of Paragraph 18(1) (supra), equally excludes the date of service of the process on the petitioner in computing the 7 days period within which the petitioner is to apply for the issuance of pre-hearing notice. Accordingly, even if 25/7/2011 as stated by the Tribunal is taken as the date on which pleadings in the Petition were completed (but which is not conceded), the computation of the 7 days period stipulated in Paragraph 18(1) of the First Schedule, is to start from 26/7/2011 and end 1/8/2011. Be that as it may.
It would appear glaring from the reasoning of the Tribunal in the portions of the ruling re-produced hereinbefore, that the Tribunal was of the view that as the Appellants’ Petitioners’ Reply to the Reply of the 1st Set of Respondents was filed out of time and consequently declared invalid, it (i.e. Tribunal) had to fall back on the date of the service of the Reply of the 1st Set of Respondents on the Appellants (i.e. 25/7/2011) as the date on which pleadings closed in the Petition and from which the computation of the 7 days period the Appellants had to file their application for issuance of pre-hearing form/notice commenced and thereby declaring that the same ended on 31/7/2011. I have already demonstrated that it was wrong of the Tribunal to have included the date of service of a respondent’s reply on a petitioner in the computation of the 7 days period the petitioner has for applying for the issuance of pre-hearing notice.
From what the Tribunal said at page 191 of the record to wit: “The petitioner herein having failed to file his reply to respondent reply as at the 29th July, 2011 only to wake up the nest (sic) day and attempted to draw the wool across the eye of the tribunal by filing on the 30th July, 2011 and proceeded to file the motion on notice seek (sic) leave of court for issuance of pre-hearing notice. (sic) 5/8/2011 cannot be allowed”, it would appear that the Tribunal was of the view that the Appellants were surreptitiously seeking for an extension of the time they had under Paragraph 18(1) of the First Schedule within which to apply for issuance of pre-hearing notice.
The Tribunal being of the stance or view (and rightly too), that it cannot extend the periods within which the Appellants are to file their Petitioners’ Reply and/or apply for the issuance of pre-hearing notice, reverted to the date of the service of the Reply of the 1st Set of Respondents on the Appellants in the computation of the time within which the Appellants should have applied for the issuance of pre-hearing notice in the Petition. It is my considered view that the Tribunal was wrong in this regard. The provision of Paragraph 16(1) of the First Schedule has earlier been set out in this judgment. The Appellants/Petitioners pursuant to the provision of Paragraph 16(1) are entitled to file in the Registry of the Tribunal within five days from the receipt of the Reply of the 1st Set of Respondents their Petitioners’ Reply in answer to the new issues of facts raised therein. It must be appreciated that in the instant case, it has not been expressly or remotely suggested by the 1st Set of Respondents that the Reply which they served on the Appellants on 25/7/3011 did not require any Reply from the Appellants because it did not raise any new issues of facts in their defence, The Tribunal in its ruling stated to the effect that the time for the filing of an application for issuance of prehearing notice is not dependent on the respondent filing his reply and cited the case of Onyedebelu v. Nwaneri 2008 1 LRECN 207 at 244 in aid. The position of the law in this regard clearly brings to the fore the question of when pleadings are deemed to be completed in a Petition.
The position in the instant appeal is that the Appellants on 30/7/2011 filed their Petitioners’ Reply to the Reply of the 1st Set of Respondents served on them on 25/7/2011. The process was undoubtedly filed outside the 5 days period they had for that purpose computing the 5 days from 25/7/2011. The undeniable fact however is that the Reply of the 1st Set of Respondents having raised new issues to which the Appellants considered it appropriate to answer in their Petitioners’ Reply, they were entitled to the 5 days period stipulated in Paragraph 16(1) of the First Schedule for that purpose.
Pleadings could therefore not be rightly deemed to have closed between the Appellants and the 1st Set of Respondents on the very date the Reply of the said 1st Set of Respondents was served on the Appellants (i.e. 25/7/2011) but on 29/7/2011 being the last date the Appellants had for the filing of their Petitioners’ Reply. While the act of the Appellants in filing out of time, their Petitioners’ Reply cannot be regularized by seeking for extension of time in the light of the provision of Paragraph 16(2) of the First Schedule; the late filing of the said process likewise cannot derogate from the date pleadings between the Appellants and the 1st Set of Respondents are deemed closed or completed (i.e. 29/7/2011), neither can the default of the Appellants in filing their Petitioners’ Reply within 5 days from 25/7/2011 obliterate that period which they had for that purpose. Having regard to the reasoning of the Tribunal as hereinbefore highlighted, the Tribunal glaringly obliterated the period of 5 days from 25/7/2011 within which the Appellants were entitled to have filed their Petitioners’ Reply simply because the Petitioners’ Reply filed by the Appellants was filed out of time. This in my considered view was very wrong of the Tribunal. What the filing out of the time limited for that purpose of the Petitioners’ Reply portended, is that the process would be discountenanced or ignored by the Tribunal at trial as it is not regularly before it. The time frame given to the Appellants to file the process by law however cannot be discountenanced or not reckoned with when it comes to the question of when pleadings were deemed closed or completed between the Appellants and the 1st Set of Respondents. It would have been a totally different situation if the 1st Set of Respondents had called into question the propriety of the Appellants filing their Petitioners’ Reply to their Reply in the first place and the Tribunal made a finding that the Appellants were not entitled to file their Petitioners’ Reply because the 1st Set of Respondents did not raise any new facts in their defence. From all that has been said, and pleadings between the Appellants and the 1st Set of Respondents being deemed to have been completed or closed on 29/7/2011, the 7 days period the Appellants had for the making of their application for issuance of prehearing notice in the light of the clear and unambiguous provision of paragraph 18(1) therefore started to run on 30/7/2011 and ended on 5/8/2011, the very date the Appellants filed their motion dated 4/8/2011. Consequently the Tribunal was not only very wrong to have found to the effect that the Appellants motion on notice for issuance of pre-hearing notice and information sheets was made or filed out of time and to have therefor dismissed the same as lacking in merit, but also in finding the Petition to be an abandoned Petition and thereby granting the prayer in the motion on notice filed on 16/8/2011 by the 1st Set of Respondents.
Flowing from all that I have said before now, is the fact that the sole Issue formulated for the determination of the appeal and which the 1st Set of Respondents adopted is resolved in favour of the Appellants.
In the final result, the appeal succeeds and is allowed. The ruling of the Tribunal delivered on 19/9/2011 dismissing the motion of the Appellants (Petitioners before the Tribunal) is set aside and in its stead the motion on notice is granted as prayed. Furthermore, the granting by the Tribunal of the Order sought in the motion of the 1st and 2nd Respondents and consequent dismissal of Petition No. EPT/AN/HA/45/2011 as an abandoned Petition are set aside. In their stead the motion of the 1st and 2nd Respondents dated 15/8/2011 and filed on 16/8/2011 is hereby dismissed as lacking in merit and the Petition is remitted to the Tribunal for completion of pre-hearing procedure and adjudication.
I make no order as to costs.