DR. FRIDAY ASUKWO ETUK v. HON. SAMUEL OKON IKON & ORS
(2011)LCN/5030(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of October, 2011
CA/C/NAEA/224/2011
RATIO
THE POSITION OF THE LAW WHERE A STATUTORY PERIOD RUNS “FROM” A NAMED DATE “TO” ANOTHER
The phrase in paragraph 16(1) of the 1st Schedule to the Electoral Act supra is “…within -five (5) days from the receipt of the respondent’s reply…”etc. In Maxwell On the Interpretation of Statutes, 12th edition, p.309 the author has stated as follows: “Where a statutory period runs “from” a named date “to” another, or the statute prescribes some period of days or weeks or months or years within which some act has to be done, although the computation of the period must in every case depend on the intention of Parliament as gathered from the statute, generally the first day of the period will be excluded from the reckoning, and consequently the last day will be included.” The above canon of construction is supported by the Supreme Court authority of Akeredolu vs Akinremi (1935) 2 NWLR (Pt.10) 787 at 793-794. I hold that the Reply of the petitioner was not filed one day outside the five days provided under paragraph 16(1) of the 1st schedule of the Electoral Act No.6 of 2010 as amended as held by the Tribunal. PER. JOSEPH TINE TUR, J.C.A
Before Their Lordships
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
DR. FRIDAY ASUKWO ETUKAppellant(s)
AND
1. HON. SAMUEL OKON IKON
2. PEOPLE’S DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)
JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment): Dr. Friday Asukwo Etuk of the Action Congress of Nigeria and Hon. Samuel Okon Ikon of the People’s Democratic Party and other candidates contested election into the Etinan State Constituency of the House of Assembly in Akwa Ibom State on 26th April, 2011. Dr. Friday A. Etuk polled 7,126 votes while the Hon. Samuel Okon Ikon had 16,744 votes. The 3rd Respondent (INEC) declared and returned the 1st Respondent as duly elected to represent the Constituency into the House of Assembly. Being aggrieved Dr. Friday Asukwo Etuk (petitioner) presented a petition to the state House of Assembly Election petition Tribunal, Uyo, Akwa Ibom State before Tribunal Number One on 16-05 -2011 seeking the following reliefs:
“(a) That it be determined that the 1st Respondent was not duly elected and that no erection took place in the affected wards and units in Etinan state Constituency on the 26th April, 2011.
(b) That it be determined that the purported election of the 1st Respondent on 26th April, 2011 was invalid by reason of corrupt practices and substantial non-compliance with the provisions of the Electoral Act, 2010 as amended and the said election was null and void.
(c) That it be ordered that a fresh election be conducted in Etinan State Constituency in accordance with the Electoral Act, 2010 (as amended). ”
Pleadings were filed and exchanged. Due to congestion, a second Tribunal was established and the petition was remitted to it for determination. Being seised of the petition the second Tribunal requested learned Counsel appearing for the parties to address the Tribunal on two issues namely:
“1. Whether the Tribunal has jurisdiction to proceed with the hearing of the pre-trial session of the petition and/or the petition in view of the provisions of paragraphs 18 and 47 of the 1st Schedule to the Electoral Act, 2010 (as amended).
2. Whether the Tribunal can hear and determine the motion on notice filed on 16-07-2011 by Counsel to the petitioner in view of the provisions of paragraphs 18 and 47 of the 1st Schedule to the Electoral Act, 2010 (as amended). ”
Having heard addresses from learned Counsel the Tribunal held at page 1075 to 1076 of the printed record as follows:
“It is our view that with the state of things, this petition is deemed abandoned. This Tribunal does not have jurisdiction to hear and determine the motions filed by the petitioner on 16-07-2011 and 19-06-2011. The fact that the former panel of this Tribunal took steps in this petition is of no moment. Proceedings before it was null and void. ”
The Tribunal declined jurisdiction; treated the Petition as abandoned and dismissed same on the16-08-2011. This appeal was filed by the petitioner on 01-09-2011 with three grounds.
Parties filed their respective briefs of argument and adopted same when the appeal came up for hearing on the 05-10-2011.
In the appellant’s brief filed on 14-09-2011 the following issues were set down for determination by this court to wit:
“1. whether the Tribunal was right when it held that the Petitioner’s Reply to the 1st Respondent’s
Reply filed on 04-07-2011 was one day outside the five day period required under paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 as amended which led to a wrong conclusion that the petition was abandoned and dismissed it.
2.Whether the Tribunal was right when it deemed the Petitioner’s Reply to the 1st Respondent’s Reply filed on 04-07-2011 as irregular and failed to reckon on it when there was no application to set aside the said Reply in accordance with paragraphs 53(2) and (3) of the 1st Schedule to the Electoral Act, 2010 as amended which led to a wrong conclusion that pleadings closed on 29-06-2011 and the seven days within which the Petitioner or the Respondents should apply for the issuance of Form TF007 lapsed on 04-07-2011.
3. whether the Tribunal was right to suo motu hold that the 2nd and 3rd Respondent’s Replies cannot be reckoned with having been filed out of time, without any party addressing it on the matter and when the Tribunal had also held that the trial of the petition was expected to commence de novo.”
The 1st and 2nd Respondents formulated the following issues for determination in their joint brief filed on 22-09-2010:
“1. Whether the Tribunal was right when it held that the petitioner’s reply to the 1st respondent’s reply filed on 04-07-2011 was one day outside the five day period required under paragraph 18(1) of the 1st schedule to the Electoral Act, 2010 as amended) which red to a wrong conclusion that the petition was abandoned and dismissed it.
2. Whether the Tribunal was right when it deemed the petitioner’s reply to the 1st respondent’s reply filed on 04-07-2011 as irregular and failed to reckon on it when there was no application to set aside the said reply in accordance with paragraphs 5 3 (2) and (3) of the 1st Schedule to the Electoral Act, 2010 (as amended) which led to a wrong conclusion that pleadings closed on 29-06-2011 and the seven days within which the petitioner or the respondents should apply for the issuance of Form TF007 lapsed on 04-07-2011.
3. Whether the Tribunal was right to suo motu hold that the 2nd and 3rd respondents’ replies cannot be reckoned with having been filed out of time, without any party addressing it on the matter and when the Tribunal had also held that the trial of the petition was expected to commence de novo.”
The 3rd respondent identified the following lone issue for adjudication by this court to wit:
“Whether the applications for the issuance of Form TF007, filed at the instance of the petitioner on the 16th and 19th days of July, 2011, respectively, are not incompetent having regard to the competing right of any of the respondents (i, this instance, the 1st respondent) to so apply which became self activated on the 2gth of June, 2011, by virtue of paragraphs 18(1) of the 1st Schedule to the Electoral Act, 2010, as amended.
If the answer is in the affirmative, whether the lower Tribunal was not right in deeming the petition as having been abandoned as of the 16th of July, 2011 when the application for Form TF007 was filed by the petitioner. ”
Having read the various issues formulated by the learned Counsel and considered the arguments for and against and the reasons given by the second Tribunal for dismissing the petition, I am of the humble opinion that the first and paramount issue to be determined is when the pleadings closed so as to require the petitioner to apply for pre-hearing notice under paragraph 18(1) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended.
The petition was filed on the 16-05 -2011. The 1st Respondent was served the petition on 11-06-2011. 1st Respondent filed Reply on 23-06-2011. The 2nd and 3rd Respondents were served the petition on 20-05-2011 but did not file a reply up to the moment the petition was transferred to the second tribunal and the Chairman and members asked for counsel’s address. In that case I agree with the Tribunal that time will be computed from the date the 1st respondent filed the reply and served the petitioner. The Tribunal found that 1st Respondent’s Reply was served on the petitioner on 29-06-2011. Computation will commence from 30-06-2011 and expire on 04-07-2011. The petitioner filed a Reply to the 1st Respondent’s Reply on 04-07-2011. I hold that the petitioner’s reply was filed within time.
Paragraph 16(1) of the 1st schedule to the Electoral Act supra reads as follows:
“16(1) 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 (s) 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 Tribunal held at page 1071 to 1072 of the printed record as follows:
“The computation of time would, and must be done from 29-06-2011 when the petitioners were served with the 1st respondent’s reply to the petition. It thus means that pleadings as between the petitioners and the 1st Respondent closed on 29-06-2011. The filing of the petitioner’s reply cannot be reckoned as having been filed out of time. It was from 29-06-2011 that the seven (7) days either the petitioners or the respondents had to file an application for the issuance of Form TF007 under paragraph 18(3) of the 1st Schedule. The seven days will be deemed to have lapsed on 04-07-2011. From the records, there was no application from any of the parties in this petition for the issuance of Form TF007 as at that date.”
The phrase in paragraph 16(1) of the 1st Schedule to the Electoral Act supra is “…within -five (5) days from the receipt of the respondent’s reply…”etc. In Maxwell On the Interpretation of Statutes, 12th edition, p.309 the author has stated as follows:
“Where a statutory period runs “from” a named date “to” another, or the statute prescribes some period of days or weeks or months or years within which some act has to be done, although the computation of the period must in every case depend on the intention of Parliament as gathered from the statute, generally the first day of the period will be excluded from the reckoning, and consequently the last day will be included.”
The above canon of construction is supported by the Supreme Court authority of Akeredolu vs Akinremi (1935) 2 NWLR (Pt.10) 787 at 793-794. I hold that the Reply of the petitioner was not filed one day outside the five days provided under paragraph 16(1) of the 1st schedule of the Electoral Act No.6 of 2010 as amended as held by the Tribunal.
The next question is when the petitioner should have applied for pre-hearing notice as in Form T’F007?
If the petitioner’s reply of 29-06-2011 to the 1st Respondent’s reply expired on 05-07-2011 the seven days stipulated for the application for the issuance of pre-hearing notice shall commence from 06-07 – 2011 to expire on 13-07-2011. This is in consonance with the provisions of paragraph 18(1) of the 1st schedule which reads as follows:
“18 (1) Within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the firing 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 TF 007.”
Time to apply for pre-hearing notice having commenced on 06-07-2011 and the seven days having expired on 13-07-20, the petitioner’s applications for extension of time to file pre-hearing notice brought on 16th and 19th July, 2011 for pre-hearing notice under paragraph 18(1) of the 1st Schedule was out of time.
Accordingly, this appeal lacks merit and is dismissed. I affirm the judgment of the Tribunal. No order as to costs.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother J. T. Tur, JCA.
I am in total agreement that the Appellants, application for pre-hearing notice was filed out of time. There is no provision for extension of time to regularize a late application.
The petition is therefore deemed abandoned and liable to be struck out.
This appeal lacks merit and it is therefore dismissed. I also affirm the judgment of the Tribunal dismissing this petition.
I make no orders as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Joseph Tine Tur, JCA gave me the opportunity of reading in draft form, the lead judgment just delivered. I agree with the reasons given therein for the conclusion that the Appeal lacks merit. I dismiss the Appeal and abide by the consequential order in the lead judgment. I make no Order as to Costs.
Appearances
Inimfon EddieFor Appellant
AND
U. Nwoko (with David Jonathan & O.B. Akpan) – for 1st and 2nd Respondents.
David Jonathan (holds brief for Simon Peters) for 3rd Respondent.For Respondent
