CHRISTOPHER O. IYIRHIARO & ANOR v. DOUGLAS E. USOH & ORS
(1999)LCN/0482(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of March, 1999
CA/B/34/99
JUSTICES:
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria
FRANCIS FEDODE TABAI Justice of The Court of Appeal of Nigeria
Between
CHRISTOPHER O. IYIRHIARO
2. SAMUEL OKUNGBOWA Appellant(s)
AND
- DOUGLAS E. USOH
2. OMO OMORUYI
3. RETURNING OFFICER IN IKPOBA/OKHA LOCAL GOVERNMENT AREA
4. ELECTORAL OFFICER, IKPOBA/OKHA LOCAL GOVERNMENT AREA
5. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS BY THE TRIAL COURT
The trial tribunal after carefully considering the material placed before it preferred the respondents’ version and came to the conclusion that there was announcement of result on 5th December, 1998 and not 6th December, 1998 as contended by the appellants. The appeal court would not lightly disturb the finding of fact by the trial court unless such finding proves to be perverse or it cannot be supported by evidence. Ebba v. Ogodo & Another (1984) 1 SCNLR 372; (1984) 4 S.C. 84, 89: Atolagbe v. Shorun (1985) 1 N.W.L.R. (Pt. 2) 360; Enang & Others v. Adu (1981) 11 – 12 S.C. 25, Fabumiyi v. Obaje (1968) N.M.L.R. 242 @ 257 and Omoregbe v. Edo (1971) 1 All N.L.R, 282. PER SALAMI, J.C.A.
FACTOR TO BE CONSIDERED IN DETERMINING WHETHER AN ACTION IS WITHIN TIME OR STATUTE BARRED
To decide whether an action is within time or statute barred, it is invariably important to determine when time began to run. See Fadare v. Attorney-General Oyo State (1982) 4 S.C. 1, 25 and (1982) N.S.C.C. 52, 60 wherein the Supreme Court cited with approval the dictum of the House of Lord in the Board of Trade v. Cayzer, Irvine & Co. Ltd. (1927) A.C. 610 before holding thus:-
“Time therefore begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to succeed,” PER SALAMI, J.C.A.
SALAMI, J.C.A. (Delivering the Leading Judgment): In the election into the office of Chairman of Ikpoba/Okha Local Government Council held on the 5th December, 1998, the first respondent was returned as the Chairman of the Local Government. The First and second appellants were unhappy with the return of the first respondent and presented their petition to the Local Government Election Tribunal Edo State sitting at Benin City praying that the election of the first and second respondents be nullified on the ground that they were not validly nominated and in their stead the first and second appellants be declared winners of the election as the chairman and Vice Chairman respectively. The first and second respondents took a preliminary objection to the petition in that it was not filed within the time prescribed by section 82 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998.
The trial tribunal tried the objection and in its reserved and considered ruling concluded as follows:-
“From the above, it is clear to the tribunal, that the petition having been filed on 21/12/98 was filed out of time. Therefore the tribunal has no jurisdiction to hear and determine the petition.”
The petition was accordingly struck out.
The appellants were unhappy with the striking out of their petition and have appealed to this court on seven grounds of appeal. The appellants prepared and filed their brief of argument which was duly served on all the respondents. The first and second respondents delivered their briefs but the third, fourth and fifth respondents defaulted in filing their briefs though the appellants’ brief was duly served on their solicitors, Edo State Ministry of justice. The matter was consequently adjourned twice to enable the Ministry come to court to represent them but they did not attend court hence the appeal had to be heard inspite of their continued absence.
In the appellants’ and first and second respondents’ briefs issues calling for determination were duly identified. These issues were identified in the appellants’ brief:-
“1. Whether there is in law a motion challenging the jurisdiction of the lower court to continue to entertain the petition of the appellants: grounds I and 2.
2. Whether the petition ED/LEGET/26/98 A.A. Imuza v. INEC & Others delivered on 26/1/99 is binding precedent on the lower court having regard to the facts in both petitions:’
On the other hand, the first and second respondents framed four issues which read as follows;-
“(a) Whether or not the appeal is competent or properly before the appropriate court to enable this honourable court exercise its powers and jurisdiction to hear and determine the appeal.
(b) Whether there was a proper motion on notice challenging the jurisdiction of the lower court to entertain the petition of the appellants.
(c) Whether the petition was filed within 14 days provided by section 82 of Decree No. 36 of 1998.
(d) Whether the petition ED/LGET/26/98 A.A. Imuza v. INEC & Others delivered on 26-1-99 is a binding precedent on the lower tribunal having regards to the fact in both petitions.”
The first formulation in the respondents’ brief is irrelevant to the determination of the appeal. It did not arise from any of the verbose and argumentative grounds of appeal filed by the appellants. The respondents, having not appealed, are not entitled to frame an issue not arising from the grounds adumbrated in the appellants’ notice and grounds of appeal. I am not unmindful of the right of both parties to formulate their respective issues but their formulation of issues must stem from the grounds of appeal in the appeal.
The learned counsel for respondents was granted leave to withdraw the first issue in the respondents’ brief which was struck out accordingly. The respondents now have three issues like their adversary, the appellants, The remaining three issues contained in the respondents’ brief are similar to appellants’ identification of issues. The sale issue calling for determination, in this appeal, is appellants’ issue (2) or first and second respondents’ issue (c).
At the hearing of the appeal learned counsel for appellants adopted appellants’ brief and elaborated on the same. The learned counsel for first and second respondents also, on behalf of his clients, adopted and relied on their brief of argument. He equally elucidated upon the brief,
The learned counsel for the appellants, after reading the provisions of section 82 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, queried what is 14 days as contemplated under section 82 of the Decree. Learned counsel then submitted that Exhibit “K” is loud and clear on who won the election but silent on when the result was actually declared.
Section 82 of Decree No. 36, read in the submission of the learned counsel for the appellants, is reproduced hereunder as follows:.
“82. An election petition under this Decree shall be presented within fourteen days from the date of which the result of the election is declared. (Italics mine)
I agree with the day the learned counsel for the appellants that the day the announcement of result was made is the common denominator in the issue of computing what is 14days from the day the result of election was declared. I, however, disagree with the submission of learned counsel for appellants that Exhibit A is loud and clear on who won the election but silent on when the result was declared. Exhibit “A”, declaration of Results of Election of Chairman of Council, is not only loud and clear on who won the election but also equally blatant on when the result was actually declared. It shows that it was made on 5th December, 1998. Since it is unlikely it would be issued in advance of the declaration of the result. it is conclusive evidence of the declaration of the result. There is presumption of regularity in favour of the document. Similarly the other Exhibit “A”, Certificate of Return of Election to Office of Chairman was issued on 5th December, 1998, like the other document, is a proof of the day the first respondent, the recipient of the document, in the absence of any other evidence to the contrary was declared the winner of the chairmanship election conducted on the 5th of December, 1998.
The first respondent in the affidavit in support of the motion challenging the petition averred inter alia as follows:-
“3. That the result of the local government election was declared on 5/12/98 and I was on the same day returned as the chairman of the Local Government council by the returning officer who has the duty and responsibility to do so. Attached hereto is Exhibit A a copy of declaration of result form.
4. That the petitioners had 14 days from 5/13/98 (sic) to file this election petition which period expired on 19/12/98. I attached herewith as Exhibit B a copy of the petition.
5. That I have just discovered that the petitioners filed the petition on 21/12/98 a date outside the statutory prescribed period.”
The appellants averred, in opposition, in their counter-affidavit as follows:-
“10. That all the result for ten wards of Ikpoba/Okha did not arrive Idogbo, the local government collation centre before 3 a.m. of the 6th December, 1998.
11. That the entire results of ward 10 arrived at 3 a.m. on the 6th December, 1998. I was there.
12. That the result of the chairmanship election for Ikpoba/Okha was announced at 4 a.m. of the 6th December, 1998 by the 3rd appellant and on behalf of the 5th applicant. I was here.”
The averments of the first respondent are supported by two documents both marked as Exhibit A. The Certificate of Return of Election to Office of Chairman is exhibited to the affidavit in support of motion questioning the validity of the petition. The other document Form EC 8E is attached to the further affidavit sworn to on 29th January, 1999, the appellants contended that the documents are inadmissible on the ground that they are public documents which are required to be certified before they can be admitted in evidence by virtue of sections 109 and 111(1) of the Evidence Act Cap.112 of the Laws of the Federation of Nigeria, 1990.
There is no substance in this submission in view of the provisions of paragraph 49 of Schedule 5 of Decree 36 of 1998 which permits the use of duplicate copies of documents in election petition proceedings. It reads thus:-
“49. In the absence of express provision in this Schedule, a party filing any document or process paper in connection with any step being taken in the proceedings of an election petition shall, unless the Secretary otherwise directs, leave with the Secretary copies of the document or process paper for service on each of the parties to the election petition in addition to three copies which the Secretary may preserve.”
The drafting admittedly is poor. The provisions of paragraph 50(4) of Schedule 5 to the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 7 of 1997 had more adequately covered the situation for it provided that no objection shall be made that a certified copy instead of a duplicate or duplicate instead of the certified copy had been used. The averments in the counter- affidavit as well as those contained in the affidavit in support of the motion are matters of oath against oath. The respondents proceeded further by substantiating the allegations contained in their affidavits by production of those documents. There is on the other hand, nothing outside the averments to accredit them.
The trial tribunal after carefully considering the material placed before it preferred the respondents’ version and came to the conclusion that there was announcement of result on 5th December, 1998 and not 6th December, 1998 as contended by the appellants. The appeal court would not lightly disturb the finding of fact by the trial court unless such finding proves to be perverse or it cannot be supported by evidence. Ebba v. Ogodo & Another (1984) 1 SCNLR 372; (1984) 4 S.C. 84, 89: Atolagbe v. Shorun (1985) 1 N.W.L.R. (Pt. 2) 360; Enang & Others v. Adu (1981) 11 – 12 S.C. 25, Fabumiyi v. Obaje (1968) N.M.L.R. 242 @ 257 and Omoregbe v. Edo (1971) 1 All N.L.R, 282.
To decide whether an action is within time or statute barred, it is invariably important to determine when time began to run. See Fadare v. Attorney-General Oyo State (1982) 4 S.C. 1, 25 and (1982) N.S.C.C. 52, 60 wherein the Supreme Court cited with approval the dictum of the House of Lord in the Board of Trade v. Cayzer, Irvine & Co. Ltd. (1927) A.C. 610 before holding thus:-
“Time therefore begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to succeed,”
It seems to me that time begins to run on the authorities when there is a cause of action which if established would entitle the plaintiff to recover. In the circumstance, time began to run on 5th December, 1998 when the respondents particularly first respondent was returned, in the chairmanship election, and declared elected. It is from that day, 5th December, 1998, accepted by the court as the date the first respondent was declared elected as Chairman of Ikpoba Okha Local Government, that the time to institute the action challenging the declaration began to run. Since it was to run for 14 days the last day to file the petition was 19/12/98 because the computation, for the result declared on 5/12/98, began on the day following the return of the first respondent which, in the instant appeal, was 6th December, 1998. The day of the happening of the event, 5th December, 1998 is excluded and if the last day of it falls on a holiday is the day following by virtue of the provisions of section 1(2)(a) and (b) of the Interpretation Act Cap. 192 of the Laws of Federation of Nigeria, 1990. Saturday, 19th December, 1998 was not declared a public holiday. Neither does the Interpretation Act nor Decree 36 of 1998 consider it as such.
The enactment providing for the conduct of the election Decree No. 36 of 1998 as well as the Interpretation Act Cap. 192 do not consider Saturday unlike Sunday sacrosanct. That probably explains why under the Decree and the programme for transition, elections are held on Saturdays, results are declared that day and the tribunal are expressly empowered to sit on Saturday with the attending consequence of the registry being kept open to administer to the need of the tribunal and the public. See paragraph 26(2) of the Schedule 4 of Decree 36 of 1998 which states inter alia as follows:-
“(2) The hearing may be continued on a Saturday or on a public holiday if circumstances dictate.”
(Italics mille)
It necessarily follows that notwithstanding that 19th December, 1998 was a Saturday the date to file the petition expired on that day by effuxion of time. I am strengthened in this view by the provisions of section 86(2) of Decree 36 of 1998 which expressly excluded application of the provisions of any other enactment to the time fixed for filing an appeal. Sub-section (2) of section 86 of the Decree provides as follows:-
(2) Notwithstanding anything to the contrary in any other enactment, notice of appeal to the Constitutional Court, on an election petition shall be given within 7 days from the date of the decision appealed against.” (Italics mine).
I am not unaware that the subsection deals exclusively with the bringing of an appeal from an Election Tribunal; the spirit of urgency contained in that subsection can be extended to the filing of the petition in the tribunal; there is no doubt that the spirit running through the Decree is that of urgency, time is, therefore, of essence.
The period for bringing the petition having expired the appellants’ remedy was to apply for enlargement of time within which to appeal. This remedy can, however, not avail the appellants in view of the provisions of paragraph 44 of Schedule 5 to the Decree. I agree with the submission of the learned counsel for the first two respondents that this court lacks power or jurisdiction by virtue of the paragraph 44, which is set out hereunder, to extend the time. Paragraph 44 allows tribunal to enlarge time but the power for enlargement of time is subject to the provisions of section 82 of the Decree and paragraph 15 of the Schedule which do not include the time to appeal. Paragraph 44(1) reads as follows:-
“44(1) The Election Tribunal shall have power, subject to the provisions of section 52 of this Decree and paragraph 15 of the Schedule, to enlarge time for doing any act or taking any proceeding on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this Schedule.”
it follows that the time fixed for bringing a petition under section 82 of the Decree cannot be extended. The petition cannot be saved through operation of law, Saturday 19th December, 1998 not being a public holiday by virtue of the provisions of this enactment nor sustainable through extension of time. The appeal fails and it is hereby dismissed with costs assessed at N2,000.00 to the first set of respondents.
BA’ABA, J.C.A.: I have had the privilege of reading the judgment of my learned brother, Salami, JCA., which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion. The operation of paragraph 44(2) of Schedule 5 to Decree 36 of 1998, having been made subject to the provisions of section 82 of the Decree and paragraph 15 of Schedule 5 to the same Decree, it is in my view, clear that reliance can not be placed on paragraph 44(1) to extend time for the filing of a petition once the time fixed by section 82 has expired. Section 82 reads:-
“82. An election petition under this Decree shall be presented within fourteen days from the date on which the result of the election is declared.”‘
It follows therefore that going by the computation of time, taking into consideration the provisions of Decree 36 of 1998 and the Interpretation Act Cap. 192, the petition filed on 21/12/98 was definitely out of time as Saturday, 19/12/98 was not declared a public holiday. The appeal fails and is also hereby dismissed by me with a cost assessed at N2,000.00 to the 1st set of respondents.
TABAI, J.C.A.: I had the opportunity of reading, in advance. the judgment just delivered by my learned brother, Isa Ayo Salami, J.C.A. and I agree that the appeal lacks merit and is hereby dismissed with costs assessed at N2,000.00 in favour of the first set of respondents.
Appeal dismissed.
Appearances
- N. A. Igbinovia, Esq. For Appellant
AND
- O. Aghimien, Esq. (with him, A. Edeki, Esq. and I.G. Edewi, Esq.) – for 1st and 2nd Respondents.3rd, 4th & 5th Respondents absent and not represented For Respondent
