BERTRAND NNONYE v. CHIEF D. N. ANYICHIE & ORS
(1988) LCN/0048(CA)
In The Court of Appeal of Nigeria
Wednesday, the 19th day of October, 1988
Case Number: CA/E/163M/88
RATIO
COURT PRACTICE: WHAT ARE THE IMPLICATION OF FAILURE TO PAY THE FILING FEES AND HEARING FEES
Non-payment of filing fees and hearing fees indicates that the petition was not properly presented and becomes incompetent and it can be struck out. In Olaniyonu v. Awah (1989) 5 NWLR (Pt. 122) 493, 504, Ogwuegbu, J.C.A. (as he then was) has this to say: “…..where a petition is filed without payment of the necessary fees and making of the necessary deposit such petition cannot be deemed to have been presented. The fee must be paid before the petition is received and wrongful receipt of the petition by the Registrar will not validate it. Since the petitioner did not pay the fees and make the deposit at the time of presentation of the petition, it was not presented as provided by the Decree.” Similar view has been expressed in this Court by my learned brother Uwaifo J.C.A. in Bertrand Nnonye v. Chief D.N. Anyichie & 4 ors (1989) 2 NWLR (Pt. 101) p. 110 at p. 116-118 when he said: “Failure to comply with the statutory provisions at the time of filing of election petition is fatal and in such cases, the court has no jurisdiction to entertain such petition. PER UWAIFO, J.C.A.
JUSTICES:
ALOYSIUS IYORGYER KATSINA-ALU Justice of The Court of Appeal of Nigeria
WALLACE RONALD TISLINGTON MACAULAY Justice of The Court of Appeal of Nigeria
SAMSON ODEMWINGIE UW AIFO Justice of The Court of Appeal of Nigeria
Between:
- BERTRAND NNONYE Appellant(s)
AND
- CHIEF D. N. ANYICHIE
2. MR. EKWEOZO
(Electoral Officer, Njikoka Local Government Area)
3. MR. UGWUEGEDE
(Electoral Commissioner)
4. MR. J. EZENW A
5. MR. A. OKAFOR Respondent(s)
UWAIFO, J.C.A. (Delivering the Leading Ruling): The 3rd respondent applicant contested the Local Government Election held on 12 December, 1987 for the office of councillor for Ifite-Ukpo Ward in the Njikoka Local Government Area. He was declared elected as councillor into the Njikoka Local Government and sworn in. The petitioner/respondent had submitted nomination papers to contest as councillor for that same Ward. On 11th December, 1987 he was, according to him, “casually informed” by the Electoral Officer for Njikoka, one Mr. Ekweozo (2nd respondent) that he had been disqualified from contesting the election. This was, again according to him, when he had heard rumours about his impending disqualification, he went on his own to the Local Government Secretariat at Abagana where he met the said Mr. Ekweozo. In spite of what Mr. Ekweozo was alleged to have told him, he said he duly contested the election “because there was no point withdrawing since to the best of my knowledge the disqualification was not confirmed in writing.”
He claimed that after the votes cast at the election were counted he was announced as the candidate with the highest number of votes, but that he was not declared the winner. Although he was silent as to when the results were announced, it appears from the documents before this Court that it could either have been on 12th December or 14th December, 1987. Counsel for the 3rd respondent/applicant submitted at the lower Court that it was on 14th December but the Judge seemed to have gone on the basis that it was on 12th December. Anyway, it does not matter in the circumstances on which of the two dates the results were declared.
The petitioner/respondent is challenging the election of the 3rd respondent/applicant at the Amawbia/Awka High Court presided over by Obiesie, J. But the 3rd respondent/applicant moved that Court for “an order dismissing the petition as not disclosing cause of action and/or as not being properly before this court, or as being incompetent ab initio and incurably defective.”
The learned Judge in a reserved ruling delivered on 21 June, 1988 dismissed the application with costs of N100.
The 3rd respondent/applicant has appealed against that ruling but in the meantime he brought an application praying this Court for an order staying further proceedings in the Court below of the petition filed as Suit No. AA/LGE.8/88, pending the determination of the appeal. He had also asked for stay of execution of the costs but that prayer was abandoned at the hearing of the application because, as counsel for him informed this Court, the costs had been paid.
When an interlocutory appeal is pending and a stay of proceedings is sought until the determination of the appeal, it seems almost impossible not to express views in reaching a decision to grant that stay which may tend to pre-judge the issues to be decided in the interlocutory appeal. The authorities seem to suggest that that cannot be avoided in deciding on such an application for a stay of proceedings. I only wish to refer to the observation of Karibi-Whyte, J.S.C. in Jadesimi v. Okotie-Eboh & Ors. (1986) 1 N.W.L.R. (Part 16) 264 at 278 inter alia:
“In my opinion, the Court may exercise its inherent jurisdiction to stay proceedings in a pending action when ….. either the action is one which is bound to fail on grounds of law, or that there are other reasons why even if it was concluded it cannot succeed. In such situations it has been demonstrated beyond reasonable doubt that such action is either oppressive and vexatious and ought not to go on being an abuse of the process of the Court. The implication of a finding of a stay of proceedings in an action is the raising of doubt whether there was a cause of action in support of such action.”
(Karibi-Whyte, J.S.C.’s emphasis)
I may add that when there is clear evidence that the proceedings are incompetent or that the court lacks jurisdiction, the proceedings must be stayed or discontinued. The discretion of the Court must be exercised upon those grounds already stated above in accordance with settled principles.
It has been long stated that the competence of a court, among others, depends on whether the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and also whether the case comes before the Court initiated by due process of law upon fulfilment of any condition precedent to the exercise of jurisdiction: see Madukolu v. Nkemdilim (1962) 1 All N.LR. 587; Western Steel Works Ltd. v. Iron & Steel Workers Union (1986)3 N.W.L.R. (part 30) 617.
The question of lack of jurisdiction or competency in law can sometimes be clear on looking at the record or process relating to the proceedings and the legislation governing such proceedings that the court either lacks jurisdiction in the subject matter or the proceedings are so incurably incompetent that the irregularity affects the jurisdiction of the Court to hear or proceed with them. In that case any such proceedings must be terminated. As Lord Wright said in Westminster Bank Limited & Anor. v. Edwards (1942) 1 All E.R. 470 at 474:
“Now it is clear that a court is not only entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so on its own initiative, even though the parties have consented to the irregularity, because, as Willes, J., said in London Corpn. v. Cox (1867) LR. 2 HL 239, in the course of giving the answers to the judges of the House, ‘mere acquiescence does not give jurisdiction’.”
This observation was cited with approval by the Supreme Court in Skenconsuit Nigeria Limited & Anor. v. Godwin Sekondy Ukey (1981) 1 S.C. 6.
In the present case, the petitioner filed a certain paper in the court below on 13th January, 1988. In it, he called himself the petitioner and the respondents there were only two, namely, (1) Mr. Ekweozo, Electoral Officer, Njikoka Local Government Area; (2) National Election (sic) Commission.
It was addressed to the Registrar, High Court, Awka in which he said: ”TAKE NOTE, that I intend dispute (sic) the declaration of Mr. Nonye as winner in the Ifite-Ukpo Ward in the Njikoka Local Government Area, after the elections of 12/12/87.” He then set out what he regarded as his “REASONS which I find necessary to reproduce, as follows:
“1. I filed my nomination papers like other candidates.
2. My papers were accepted and my nomination approved, having gone through the necessary procedure to obtain clearance.
3. I was screened and given the go ahead by. I shall tender all relevant papers if requested to do so.
4. As at this stage, 9/12/87, I had begun to arrange for the production of posters and hand bills for the election.
5. On 11/12/87, less than 24 hours before the election, I went to the Local Government Office at Abagana on my own. There I met the Electoral Officer Mr. Ekweozo. He casually informed me that I was disqualified.
6. The reasons he gave is that I was convicted of not returning rate tickets, by the Customary Court, Abagana.
7. That the above is true but the matter is now on appeal, because being a rate collector, I knew that it is impossible for me to have gone on collecting rates without accounting for past ones.
8. That despite the above I contested the election because it was too late in the day to withdraw.
9. That after the counting of votes I was announced as the winner.
10. That I was not declared the winner for some days, and no public announcement was made.
11. That suddenly I begun (sic) to hear rumours that the runner up Mr. Nonye has been sworn in.
12. That I petition against the declaration and swearing in of Mr. Nonye because the only ground for allegedly disqualifying me is on appeal.”
He ended by saying, “Yours faithfully” and signing over his name indicating also his address and the name and address of his solicitor.
On 2 February, 1988, his solicitor filed what may be regarded as an election petition for him against the present respondents who now include the 3rd respondent/applicant. But it was purportedly dated 13th day of January, 1988; the Official stamp of the Court on it is dated 2/2/88 imprinted on the first and last pages and also on the page containing the Memorandum of Appearance attached to the Petition. That same day the Registrar of the Court below signed the “NOTICE OF PRESENTATION OF PETITION” pursuant to paragraph 8(1) of Schedule 3 to the Local Government Elections Decree 1987, Decree No. 37.
The Notice to the respondents reads:
“TAKE NOTICE that the petition a duplicate whereof is attached hereto has this day been presented in the Registry at Awka of the High Court of Anambra State in Amawbia/Awka Judicial Division and that you are to enter an appearance in the said Registry not later than five days from the date when this notice was served on you or five days from the date when this notice was left at your address set out below or as the Court may direct by order under paragraph 13 of Schedule 3 to this Decree otherwise proceedings upon the petition may be continued and determined in default of your appearance, and any document relative to such proceedings and intended for you may be posted upon the Court Notice Board, which shall be sufficient notice thereof. ”
Counsel for the 3rd respondent/applicant, Dr. F. N. Obi, submitted in the court below in support of his preliminary objection that the petition was filed out of time and therefore void ab initio since paragraph 2 of schedule 3 to the Decree says: “An election petition shall be presented within one month after the date on which the election is held.”
The learned Judge regarded the document filed on 13 January, 1988 as the petition. He then held:
“I am of the firm view that an election petition filed on the 13th of January, 1988 as in this instant case in relation to the result declared on the 12th December, 1987 is one ‘presented within one month after the date on which the election is held’.
I will however concede to learned counsel for the applicant that compliance with Statutory Provisions as to time within which to file election petition is a fundamental pre-condition breach of which is incurable. Failure to comply with the Statutory Provision is fatal and in such cases, the court has no jurisdiction to entertain such petition.”
The latter part of the above observation by Obiesie, J. as to the fatal consequences of filing an election petition outside the time prescribed by the Decree is well said. The Judge himself must agree that if that is so, any proceedings based on such a petition must be discontinued. That is what the authorities firmly decide. Not even the enthusiasm of any Court to see that matters are concluded expeditiously (an attitude to duty which is extremely commendable in itself) can override the duty to terminate any incompetent proceedings the very moment the defect which makes them so is known or demonstrated.
The Judge also made relevant comments as to whether there was a valid and competent petition before him. He said:
“The issue for determination is whether the petition was filed within time and if the answer is in the affirmative whether it disclosed a cause of action as required by law or alternatively void ab initio as contested by 3rd respondent/applicant? Records reveal that the petition designated as ‘Petition against the declaration of Mr. Bertrand Nonye as winner in the Local Government Election held on 12/12/87’ was filed on 13th January, 1988. The other one referred to by learned counsel for 3rd respondent/applicant Dr. F. N. Obi was filed on the 2nd of February, 1988. In Schedule 3 of the Local Government Decree 1987, there is no mandatory format to adopt in filing an election petition. All that is set out in section 5 of the said Schedule is what is specifically referred to as ‘Contents of Petition’ which in my view have been complied with by the petitioner.”
With due respect, no aspect that is material as to what the learned Judge said in the above remarks can be regarded as right. There is certainly a format which can be found at pages A310-311 of the Decree. Paragraph 5 of Schedule 3 which the Judge referred to states what the contents of the petition should be and the format in question ensures or assists compliance. For instance, it is mandatory under paragraph 5(3) that the petition should conclude with a prayer as there stipulated. There is no such prayer or any prayer whatsoever in the document filed on 13th January, 1988. Again, section 3 of the Decree itself says:
“No local government election and no return to a Local Government Council shall be questioned except by a petition complaining of an undue election or undue return (hereinafter referred to as an ‘election petition’) presented to the High Court in accordance with the provisions of this part of this Decree and Schedule 3 to this Decree.”
In other words, there must be an election petition properly so-called and not what obviously looks like a letter to the Registrar signed “Yours faithfully” containing no prayer. It does not, in my view, have the flimsiest semblance of an election petition. Under paragraph 4 of Schedule 3, the manner of presenting the election petition is stated including the number of copies of it to be left with the Registrar. This should be as many copies as there are respondents and seven copies in addition. This particular requirement is mandatory. Paragraph 7 of the said schedule requires the petitioner to furnish the Registrar with the address of the respondent’s abode or the address of a place where personal service can be effected on the respondent.
Now, under section 33 of the Decree, the person who is regarded as the respondent is the person whose election or return is complained of, in this case, Mr. Bertrand Nonye. He was not even named as the respondent in the document filed on 13th January, 1988. If a petition complains of the conduct of an Electoral Officer or any other officer, such officer shall be deemed to be a respondent not the respondent. What this means is that without the respondent, no election petition exists. The said section 33(2) provides:
“The person whose election or return is complained of is hereinafter referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, Presiding Officer or Returning Officer, such Electoral Officer, Presiding Officer or Returning Officer shall for the purpose of this Decree be deemed to be a respondent. ” (Emphasis mine).
This distinction is very important when due consideration is given, for example, to the central position of the respondent (whose election or return is complained of) in sections 31, 34(1)(a) and (c) of the Decree, paragraphs 7, 8(1)(a), 8(2), 9(1), (2) & (3), 10(1), (3) & (4), 11, 13(1), (2), (3) & (4), and the nature of the prayer which the format of the election petition takes. He is a most necessary and indeed the only crucial party in the circumstances otherwise the petition is not properly constituted as against him as no order can be made to avoid his election if he is not made a party: see Line v. Warren (1885) 14.Q.B.D. 548 at 553-554 per Conan, U where he said inter alia:
“….. it is quite clear to my mind that this Act does contemplate not only a petition to set aside the election of the whole number of candidates, but also a petition which questions the return or the election of individuals without joining all. But it has been contended before us that this objection being good is equally an objection against Harris, who is not before the Court, and it has been argued very correctly that we cannot declare Harris’s election to be bad without having him before us. It is also said that, as the petitioners are seeking to set aside the return of the respondents on a ground applicable to the election as a whole, all those who have been elected should be made respondents, but that this petition does not seek to set aside the whole election. It is true that it seeks to set aside the election of three on grounds equally applicable to the fourth and if the fourth had been joined then the election would have been set aside, because everyone of the candidates returned would have been shown not to have been duly elected But this petition does not ask for a declaration that the whole election is avoided. In my opinion the true view is this: there is an objection which is fatal to the election of these three candidates. Will the Court hold that they are not duly elected?
Ought the Court to abstain from so holding simply because there is another person whose election is open to the same objection, and against whom no order can be made? If the other candidates returned had been brought before the Court in due time, the same order would have been made against him. He is in such a position that, although there was an objection to his election, the time has elapsed during which his election could be questioned, and he remains on elected town councillor of Daventry. ” (Emphasis mine)
To my mind this clearly shows the futility of not including the only candidate whose election was being purportedly questioned in the spurious document filed on 13th January, 1988. Even if it had been an election petition, Mr. Bertrand Nnonye was not a party and it would have been too late to include him later in the one filed on 2 February, 1988 as time had then well elapsed during which his election could be questioned. If the only candidate whose election was sought to be questioned was not made a party in the court process intended for that purpose, then no election petition was properly constituted on that ground alone. If hearing of the alleged complaint was conducted upon that court process, nothing would be achieved as no order could be made against such candidate to invalidate his election.
It is quite obvious, however, from the “NOTICE OF PRESENTATION OF PETITION” signed by the Registrar in respect of the petition bearing the court stamp of 2nd February, 1988, that the petition was presented in the High Court Registry at Awka on that date. That was well after the time allowed under paragraph 2 of schedule 3. The fact that it was filed on 2nd February, 1988 is contained in paragraph 10 of the further affidavit filed by the 3rd respondent/applicant served on the petitioner/respondent. He did not controvert it. It is deemed to have been admitted as true: see Agbaje v. Ibru Sea Food Ltd. (1972) 5 S.C. 50 at 55; Alagbe v Abimbola (1978) 2 S.C. 39 at 40. The learned Judge himself acknowledged in his ruling that it was filed on 2 February, 1978. No proceedings can under any circumstances be conducted on that election petition. The Court is thereby prevented from exercising its jurisdiction to hear the complaint of the petitioner brought upon that petition.
But even assuming that the document filed on 13th January, 1988 were a petition, the learned Judge was in error to have held that it was filed within time. The relevant paragraph 2 of the Schedule 3 itself does not take the date of the election, that is, 12th December, 1987 into account for the computation of one month. So the computation starts from 13 December as the first day.
Therefore taking 31 days as a month (December being a month which ends on 31st), and calculating from 13 December, the last day for filing the election petition was 12th January, 1988.
The same result is achieved going by the authorities. Under section 18 of the Interpretation Act, 1964 Laws of the Federal Republic of Nigeria, 1964, “month” means a calender month reckoned according to the Gregorian calender. Also under RSC Order 3 rule 1 of England, it means calender month unless the context otherwise requires. In Radcliffe v. Bartholomew (1892) 1Q. B. 161, the question arose as to the interpretation to be given to section 14 of the Prevention of Cruelty to Animals Act which enacted that “every complaint under the provisions of this Act shall be made within one calender month after the cause of such complaint shall arise”. It was held that the day on which the alleged offence was committed was to be excluded from the computation of the calender month within which the complaint was to be made and that the complaint which was laid on June, 30 in respect of an alleged offence committed on May, 30 was within time. It would have been out of time on May, 31st In the case of The South Staffordshire Tramways Co. Ltd. v. The Sickness and Accident Assurance Association Ltd. (1891) 1 Q.B. 402 the plaintiffs, a tramcar company, effected with the defendants an insurance against “claims for personal injury in respect of accidents caused by vehicles for twelve calender months from November 24, 1887”, to the amount of ?250 in respect of anyone accident. On November 24, 1888, one of the plaintiffs’ tramcars was overturned, forty persons were injured, and the plaintiffs became liable to pay claims to the amount of ?833. It was held that in order to calculate the period of twelve calender months, the date November 24, 1887 was excluded and the date November 24,1888 was included which therefore made the last day in the twelve calender months November 24, 1888.
In the same way in the present case, 12th December, 1987 would be excluded but 12th January, 1988 would be included being the last day in the one month allowed after 12 December, 1987 to present an election petition under paragraph 2 of Schedule 3 to Decree No. 37, Local Government Elections Decree 1987 and not 13th January, 1988 which was outside the one month. On the state of the authorities, the election petition in suit No. AA/LGE.8/88 pending at the Amawbia/Awka High Court at Awka is such as further proceedings therein should be stayed until the determination of the appeal filed against the ruling of that Court dated 21 June, 1988 now pending in this Court. It is ordered accordingly. It is further ordered that a copy of this ruling be transmitted to the Court below forthwith. I award the sum of N150 as costs in the Court below and N100 as costs in this Court in favour of the 3rd respondent/applicant against the petitioner/respondent.
KATSINA-ALU, J.C.A.: I entirely agree with the ruling just read by my learned Brother Uwaifo, JCA. and I do not think I can usefully add anything.
MACAULAY, J.C.A.: I entirely agree.
Application Granted.
Appearances
Dr. F.N. Obi For Appellant
AND
C.C. Officha, Senior State Counsel, Anambra State For Respondent
