HON. GABRIEL OKOYE ONYENWEIFE v. HON. BONIFACE OKOYE & ORS
(2011)LCN/4977(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of December, 2011
CA/E/EPT/58/2011
RATIO
COMPUTATION OF TIME: WHETHER COMPUTATION OF TIME WITHIN WHICH TO FILE A PRE-HEARING APPLICATION COMMENCE AFTER THE SERVICE OR FROM THE DATE OF SERVICE OF EITHER THE PETITIONER’S REPLY ON THE RESPONDENT OR OF THE RESPONDENT’S REPLY
Paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended) has earlier been reproduced in this judgment, with emphasis on the word “after” as contained in the paragraph. Computation of time within which to file a pre-hearing application commences after the date of service as opposed to from the date of service. In the instant petition, computation should have commenced on the 17th June, 2011 and to end on the 23rd June, 2011. The application dated 22nd June, 2011 was therefore filed within time. The conclusion of the Tribunal that the application was filed within time cannot be faulted. PER HON. JUSTICE ADAMU JAURO, J.C.A
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
A. OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
HON. GABRIEL OKOYE ONYENWEIFE Appellant(s)
AND
1. HON. BONIFACE OKOYE
2. ALL PROGRESSIVES GRAND ALLIANCE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. HON. PETER ONUORAH
5. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
HON. JUSTICE ADAMU JAURO, J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling of the National and State Houses of Assembly Election Tribunal Anambra State, holden at Awka, delivered on 11th October, 2011 in petition number EPT/AN/HA/46/2011, wherein the Tribunal refused the 1st Respondent’s application to dismiss the petition.
By way of preamble, a resume of the facts giving rise to this appeal is hereby made as follows: The Appellant as the 1st Respondent/Applicant at the Tribunal, by a Motion on Notice dated 12th September, 2011 and filed 13th September, 2011 prayed for the dismissal of the petition as an abandoned petition. Written addresses in respect of the application were filed, exchanged and adopted before the Tribunal. In a ruling delivered on the 11th October, 2011, the Tribunal dismissed the application as lacking in merit.
Aggrieved by the aforementioned ruling, the Appellant challenged same vide a Notice of Appeal dated 31st October, 2011 and filed the same day. The Notice of Appeal was predicated upon two grounds of appeal. The 1st and 2nd Respondents on their part filed a Notice of Preliminary Objection pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2011, wherein they challenged the competence of the appeal. The Notice of Preliminary Objection dated 7th December, 2011 was filed on the 8th December, 2011.
In compliance with the Rules of Court and Election Tribunal and Court practice Directions 2011, briefs of argument were filed and exchanged. The 1st and 2nd Respondent’s Notice of Preliminary Objection with argument in support is dated 7th December, 2011 and filed on 8th December, 2011. The Appellants brief of argument is dated 2nd December, 2011 and filed on 5th December, 2011. The 1st and 2nd Respondents brief of argument dated 7th December, 2011 was filed on 8th December, 2011. The 4th Respondent’s brief is dated 8th December, 2011 and filed the same day. The 3rd and 5th Respondents did not file any brief of argument.
On 8th December, 2011 the date fixed for hearing the appeal, Mr. A.C. Anaenugwu leading O.M. Onyia Esq., for the 1st and 2nd Respondents adopted the argument in respect of the preliminary objection and urged that the appeal be struck out. The preliminary objection is to the effect that the appeal is an academic exercise and being an interlocutory appeal no leave of court was sought, hence rendering it incompetent. Learned counsel relied on the case of Nwankwo v. Ekwunife, CA/E/EPT/46/11 and urged that the appeal be struck out, Mr. Arthur Obi Okafor SAN, leading E.A. Ahuchogu Esq., for the Appellant, adopted the Appellant’s brief and urged the court to allow the appeal. Learned senior counsel stated that the preliminary objection is misconceived and unavailing.
Learned senior counsel submitted that the appeal is not academic and distinguishable from CA/E/EPT/56/11 and urged the court to dismiss the preliminary objection and allow the appeal. Mr. A.C. Anaenugwu adopted and relied on the 1st and 2nd Respondents’ brief in respect of the appeal and urged the court to dismiss the appeal.
Mr. Emeka Agbapuonwu, leading Emeka Mofumamaya Esq., for the 4th Respondent, adopted the 4th Respondent’s brief and urged the court to allow the appeal. Mr. Emeka Ajaegbo for the 3rd Respondent, having filed no brief, urged the court to do justice to the case. Mr. Clems Ezika for the 5th Respondent stated that he did not file any brief of argument, hence urged the court to do justice to the case.
The 1st and 2nd Respondents as earlier stated in this judgment filed a preliminary objection, challenging the competence of the appeal. The preliminary objection is to the effect that the appeal being interlocutory in nature, leave of court was not sought and obtained before filing same. Secondly, that the appeal itself is an academic exercise, hence it should be struck out. Suffice it to say and without over flogging the issue that a right of appeal exists in an interlocutory decision in an election petition by virtue of Section 246(1)(b)(i) of the 1999 Constitution (as altered). See Uduma v. Arunsi (2011) ALL FWLR (Pt. 560) 1290 at 1301, Chief Sergeant Chidi Awuse v. Dr Peter Odili & 3 Ors (2003) 18 NWLR (Pt. 851) 116 at 164 – 165.The appeal is therefore competent and it cannot be said to be an academic exercise. The preliminary objection therefore fails and is hereby dismissed.
The Appellant distilled a lone issue for determination on page 4 of the Appellant’s brief as follows:
“Whether the Lower Tribunal was right in the conclusion it reached that the application for Pre-Trial Conference Notice Form was filed by the 1st and 2nd Respondents on 22/6/2011 by which it sustained the Petition instead of having same dismissed as requested by the Appellant.”
The 1st and 2nd Respondents also identified a sole issue for determination on page 9 of their brief, to wit:
“Whether the Tribunal was correct in its conclusion that the petition was not liable to be dismissed as an abandoned petition.”
The 4th Respondent on page 4, paragraph 3 of his brief of argument adopted the lone issue for determination as formulated by the Appellant. The issue as formulated by the Appellant and the one formulated by the 1st and 2nd Respondents is virtually identical. I however find the issue as formulated by the 1st and 2nd Respondents more comprehensive, precise and all encompassing, hence it will be adopted in resolving this appeal.
The facts in this appeal are basically not in dispute. All parties are agreed on the fact that the last pleading in the petition was served on the 16th June, 2011. The contention of the Appellant and the 4th Respondent is that the application for Pre-hearing Notice, Exhibit P dated 22nd June, 2011 was filed out of time. The Appellant argued that the Tribunal erroneously held that the letter was filed on 22nd June, 2011 when it was only dated 22nd June 2011 but filed on the 23d June, 2011. The 1st and 2nd Respondents argued per contra, to the effect that the application was filed within time and the Tribunal was right in refusing to dismiss the petition as an abandoned petition.
The preceding paragraph reflects the bone of contention and the issue begging for resolution in this appeal. To my mind, a resolution of the issue boils down to the interpretation of paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended). The said Paragraph is hereby reproduced thus:
“18 – (1) 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 prehearing notice as in Form TF 007.”
The Tribunal in its computation arrived at 22nd June, 2011 as the last date and held that the letter dated 22nd June was filed within time.
Paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended) has earlier been reproduced in this judgment, with emphasis on the word “after” as contained in the paragraph. Computation of time within which to file a pre-hearing application commences after the date of service as opposed to from the date of service. In the instant petition, computation should have commenced on the 17th June, 2011 and to end on the 23rd June, 2011. The application dated 22nd June, 2011 was therefore filed within time. The conclusion of the Tribunal that the application was filed within time cannot be faulted. The lone issue for determination is resolved in favour of the 1st and 2nd Respondents.
In view of the foregoing, the appeal is lacking in merit and is hereby dismissed.
There will be no order as to costs.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A: I agree.
A.O. LOKULO-SODIOE, J.C.A: I agree.
Appearances
Mr. Arthur Obi Okafor SAN with E.A. Ahuchogu Esq.For Appellant
AND
Mr. A.C. Anaenugwu with O.M. Onyia Esq.
Mr. Emeka Ajaegbo
Mr. Emeka Agbapuonwu with Emeka Mofumamaya Esq.
Mr. Clems Ezika with Nicholas Asuzu Esq.For Respondent
