DR. SANDY ONOR & ANOR v. RT. HON. JOHN N. OWAN ENOR & ORS
(2015)LCN/8003(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of October, 2015
CA/C/NAEA/158/2015
RATIO
ELECTION PETITION; WHETHER THE PROVISION OF THE INTERPRETATION ACT IS APPLICABLE IN ELECTION MATTERS
In the instant case, the provision of the Interpretation Act is inapplicable in election matters, so said the Supreme Court in the case of OMISORE v. AREGBESOLA SC/204/2015 unreported delivered on 27/5/1015 where C.C. Nweze JSC had this to say:
“…it is not in doubt that the main plank of their contention is that, in the interpretation of the time frame stipulated in Paragraph 16(1) and (2) of the First Schedule to the Electoral Act as amended, the relevant instrument to be considered is Section 15(4) and (5) of the Interpretation Act, Cap 123 LFN, 2004 …..
The simple answer is that the said Interpretation Act is inapplicable to this matter being an election matter, Okechukwu v. INEC (supra). Thus his reply was not filed in strict fidelity to the time protocol ordained in Paragraph 16 (supra), the lower Court rightly struck it out. This must be so because the timelines therein are sacrosanct due to the peculiar nature of the election matters which are time-bound, Buhari v. INEC and Ors (2008) 19 NWLR Pt.1120 246. ….. in effect, any process filed out of time is incompetent and liable to be struck out…” per. ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
1. DR. SANDY ONOR
2. LABOUR PARTY Appellant(s)
AND
1. RT. HON. JOHN N. OWAN ENOR
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. THE RESIDENT ELECTORAL COMMISSIONER, CROSS RIVERS STATE
4. PEOPLES DEMOCRATIC PARTY Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling/decision of the National and State House of Assembly Election Petition Tribunal sitting in Calabar Cross River State delivered on the 12th day of August, 2015 by their lordships Hon. Justice C. D. Awubra (Chairman), Hon. Justice O. A. Adeniyi (Member I) and Hon. Justice J. U. Oyomire (Member II).
The 1st Appellant in this appeal had on the platform of the Labour Party (LP) (hereinafter called the 2nd Appellant) contested the election for Senate representing Cross River Central Senatorial District that was held on the 28th day of March, 2015.
After the conclusion of the said election, the 2nd Respondent declared and returned the 1st Respondent as the winner of the said election, having scored a total of 136,948 votes as against 35,702 votes scored by the 1st Appellant.
Dissatisfied with the declaration of the 1st Respondent as the winner of the election in dispute, the Appellants filed a petition at the lower tribunal, where in they sought for the following reliefs:
“1. A declaration that the election into the National Assembly for Cross River State Central Senatorial District of
1 28th March, 2015 was invalid by corrupt reasons of practices and/or non-compliance with the Electoral Act, 2010 as amended.?
2.?A declaration that the 1st Respondent was not duly elected by majority of lawful votes cast at the election into the National Assembly for Cross River State Central Senatorial District of 28th March, 2015.
3. An order for the cancellation of the election into the National Assembly for Cross River State Central Senatorial District of 28th March, 2015.
4. AN ORDER directing the 2nd and 3rd Respondents to conduct a fresh election into the National Assembly for Cross River State Central Senatorial District of 28th March, 2015”.
The grounds of the petition are as follows:
“(1) That the election into the National Assembly for Cross River State Central Senatorial District was invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act, 2010 as amended.
(2) That the 1st Respondent was not duly erected by a majority of lawful votes cast in the election to the Senate of the National Assembly held in Cross River State Central Senatorial District on 28th March, 2015.
?(3) That the 1st respondent was at the time
2 of the election held on 28th March, 2015 not qualified to contest the election for the Senate of the National Assembly”
On 24/7/2015, the 1st respondent filed a motion on notice praying for leave to bring an application outside the pre-hearing session and an order dismissing the petition for the failure of the petitioners to apply for the issuance of pre-hearing notice within the time prescribed by the Electoral Act.
The grounds of the application are as follows:
i. The petitioners filed their application for the issuance of pre-hearing notice outside the time provided by Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended).
ii. The petition is deemed abandoned and the Tribunal no longer has jurisdiction to continue to entertain the petition.
The petitioner filed a 27 paragraph counter affidavit accompanied with written address in opposition to the motion.
The trial tribunal after considering the arguments of all parties the declared the petition as incompetent and dismissed the petition accordingly.
?Briefs of arguments were in accordance with the relevant rules of this court duly filed and exchanged and at the hearing of the appeal the
3parties adopted and relied on their respective briefs of argument.
The Appellants’ brief of argument dated 14th day of September, 2015 and filed on 15/09/2015 was settled by B. Olusegun Esq. The 1st Respondent’s brief of argument dated and filed on 18th September, 2015 was settled by Mathew Ojua, Esq. while the 2nd and 3rd Respondents, brief of argument dated 17th September, 2015 and filed on 18/09/2015 was settled by Mba E. Ukweni Esq. The 4th Respondent have not filed any brief of argument in this appeal. The Appellant also have not filed any reply brief of argument to the 1st, 2nd and 3rd Respondents’ briefs of argument.
There are five grounds of appeal filed by the appellants but two issues were distilled from the five grounds as follows:
“1. Whether in the circumstances of the case the application for pre-hearing information made by the appellant on the 2nd day of June, 2015 was premature and incompetent and consequently rendered the petition abandoned.
2. Whether the grant of extension of time to the respondents to file their reply did not reopen pleading given room to the appellants to apply for fresh pre-hearing information to be issued.”
The 1st respondent
?4 adopted the issues formulated by the appellants with slight amendment. While the 2nd and 3rd respondents in their brief of argument distilled a lone issue for the determination of this appeal. The lone issue as distilled by the 2nd and 3rd respondents in their joint brief of argument is capable of disposing of this appeal. The issue is adumbrated as follows:
“Whether in view of the provision of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) and taking into consideration the circumstances of the case, the learned Judges of the Election Tribunal were right in dismissing the petition as having been abandoned.”
The Appellants in their brief of argument contended that by the application for the issuance of pre-hearing notice made on the 2nd day of June, 2015, the appellants made that application within the time contemplated by Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended).
He submitted that as at 12th day of May, 2015 when the 1st respondent was served with the petition pursuant to the Tribunal’s order, the 4th respondent had already filed her reply, whilst the 2nd and 3rd respondents had not filed their
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joint reply to the petition. He maintained that the 1st respondent had 14 days from 12th day of May, 2015 when he was served to file his reply to the petition. He cited in support, Paragraphs 12 and 18(1) of the First Schedule to the Electoral Act, 2010 (as amended).
He submitted that the 14 days allowed by Paragraph 12 of the First Schedule to the Electoral Act, 2010 (as amended) for the 1st respondent to file his reply expired on the 26th day of May, 2015, while “not later than 21 days” allowed by Paragraph 10(2) of the First Schedule to the Electoral Act, 2010 (as amended) elapsed on 2nd day of June, 2015. He maintained also that by Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) the Appellants had 7 days from the 26th day of May, 2015 or from 2nd day of June, 2015 when the 1st Respondent’s time to file his reply expired to make their application for the issuance of pre-hearing information and they have made the application within time on the 2nd day of June, 2015.
?He argued that from the 12th day of May, 2015 when the 1st respondent was served (by substituted means) pleadings have not been closed as between all the parties to
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the petition so as to activate the provision of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) .
He contended that pleadings closed when after 14 days or not later than 21 days, from 12th day of May, 2015 the 1st respondent (who was served last) had not filed and served his reply on the appellants. It would have amounted to indolence if after 14 days from the date of service of the petition on the 1st respondent, the appellants waited and speculated as to whether the 1st respondent would file a reply or not.
Learned Counsel submitted that the appellants applied for pre-hearing on 2nd day of June, 2015 believing that pleadings closed between all parties in the petition when the number of days allowed by law for the last respondent served to file his reply elapsed, whether or not he actually filed or not. The petitioner is not expected to procrastinate as to which action the 1st respondent would take after being served when he is eager for his petition to be heard. He cited in support the case of IKORO v. IZUNASO (2010) ALL FWLR (PT.521) PG. 1550 AT 1568 where the Court of Appeal held as follows;
“…in the computation of
7 time for filing of pleadings or other processes in election petitions, it is the time stipulated or set out in the 1st schedule to the Electoral Act that should be applied or used and not when such processes were actually filed by the parties. This is because it is the paragraphs of the first schedule that provided for the filing of such pleadings and imposed time limits for so doing. The paragraph did not leave the filing of the pleadings to the whims of the parties and so the actual filing does not count in the computation of when time started to run for the purpose of determining the time limit provided therein.”
He also referred the Court to the case of NUNGHE v. SWA (2012) 2 LRECN PG.222 PARA B-F. He urged the Court to hold that if the 1st respondent relied on the paragraph which allows him to defend the petition or even where he filed his reply not later than 21 days, pleadings ended between the parties on the 2nd day of June, 2015, and Paragraph 18(1) was thus activated on the 2nd day of June, 2015 and not the 3rd day of June, 2015 as the lower tribunal decided.
?He argued that assuming without conceding that 3rd day of June, 2015 was the day pleading
8
closed, by which effect the application for the pre-hearing by the appellants was premature as decided by the lower tribunal, the appellants would have still been entitled to have their petition heard on the merit and not have their petition dismissed, because the appellants did not want to be indolent in the prosecution of their petition. He cited in support the case of EZEUDU v. JOHN (2012) 7 NWLR (PT.1298) PG. 1.
He submitted that the provision of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) does not provide for any punishment for a petitioner who may apply for the issuance of pre-hearing before he receives the reply of the last respondent to be filed. He maintained that the wordings of the Paragraph 18 is very clear and unambiguous and the lower tribunal substituted their opinion for the intentions of the legislature when they dismissed the petition on the ground that the appellants purportedly applied for the issuance of the prehearing notice prematurely i.e one day before they were supposed to. He referred the Court to the case of UGBANE v. HUSSEIN (2011) 10 EPR 367 AT 383.
Learned Counsel insisted that the lower tribunal’s
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decision in dismissing the petition of the appellants on the ground that the application for issuance of pre-hearing notice was premature occasioned a miscarriage of justice to the appellants. He referred the Court to the cases of: SA’EED v. YAKOWA (2013) ALL FWLR (PT.692) PG.1650; IPINLAIYE II v. OLUKOTUN (1996) 6 NWLR (PT.453) PG.148; AKHIWU v. PRINCIPAL LOTTERIES OFFICER MIDWEST (1972) 1 ALL NLR (PT.1) PG.229; OKWECHIME v. IGBINADOLOR (1964) NMLR PG.132.
He maintained that the courts have only held that the First Schedule to the Electoral Act only provided for the dismissal of the petition where the petitioner fails to apply for the issuance of the pre-hearing notice or where it applied after the time allowed for doing so. He referred the Court to Paragraph 18(1) and Paragraph 53(1) of the First Schedule to the Electoral Act, 2010 (as amended).
He submitted that the respondents did not complain of any injustice done by the application of the 2nd day of June, 2015 or that of 26th June, 2015 and no such complaint would have been made if the lower tribunal heard the petition on the merit.
Learned Counsel contended further that the lower tribunal on 18th day of June,
?10
2015 granted the 2nd and 3rd respondents extension of time to file their reply and to deem same as properly filed and served on the same date; Based on this, the appellants freshly applied for the issuance of pre-hearing notice on the 26th June, 2015.
However, the lower tribunal in its ruling held as follows:
“….. when the tribunal regularized the reply of the 2nd and 3rd respondents on the 18/6/2015, such regularization dated back to 18/5/2015 when their time to file a reply expired. This was 21 days after 27/4/2015 when they were served with the petition. The date for them to file expired on 18/5/15 and the effect of the regularization is to deem their reply filed out of time as though it was properly filed within the time limit allowed them by law.”
He submitted that the regularization of the 2nd and 3rd respondents’ reply though deemed to have been filed within the prescribed time, cannot be said to have retrospective effect by dating it back to the 18/5/15 (when their time to file expired), that would have been prejudicial to the appellants who were then foreclosed from filing a petitioner’s reply to any new issue raised in the said joint 2nd and 3rd
?11
respondents, reply to the petition and would have also rendered all the steps taken by parties to the petition a nullity.
He maintained that the grant of the extension of time to the 2nd and 3rd respondents to file their reply to the petition out of time reopened pleadings and room for the appellants to reapply for the issuance of pre-hearing notice and to also accommodate the 2nd and 3rd respondents who had been a proper party before the regularization. He urged the Court to so hold.
He also submitted that the lower tribunal had in their ruling held that even if pleadings ended on the 18/6/15, the application of the petitioners would have fallen foul of the Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) as it was made one day outside seven days allowed by law.
?He maintained that the lower tribunal did not take into consideration the rules of interpretation regarding computation of time. Upon the grant of extension of time to the 2nd and 3rd respondents to file their reply to the petition, the appellants as petitioners had 7 days to apply for the issuance of pre-hearing notice if they are not filing any petitioner’s reply and the 7
?12
days expired on the 26th June, 2015 as the 25th June, 2015 was a Sunday, a non juridical day and the registry of the tribunal did not open. He referred the Court to Section 15 of the Interpretation Act.
He urged the Court to also resolve this issue in favor of the appellants.
He finally urged the Court to allow this appeal and remit the petition back to the tribunal for speedy hearing on the merit.
The 1st respondent in his brief of argument raised an objection to the appellants’ arguments on issue one distilled from ground 3 of the notice of appeal filed. He contended that both issue one and ground 3 of the appellants’ grounds of appeal from which the issue one is distilled are diametrically opposed to the case presented by the appellants in the lower tribunal.
?He submitted that the appellant stated in their counter affidavit and address in support of it, that the application made by them for the issuance of pre-hearing notice on 2nd day of June, 2015 was rendered premature by the grant of the application of the 2nd and 3rd respondent for extension of time on 18/6/2015. He referred the court to: paragraph 19 of the appellants’ counter affidavit and the
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appellants’ address at page 594 of the printed record of appeal.
He maintained that the appellants after condemning their application for issuance of pre-hearing notice to the state of prematurity, they turned round to complain in their ground 3 of the grounds of appeal that: the learned Judges of the lower tribunal erred in law when they held that the petitioners’ application for the issuance of pre-hearing notice made on 2/6/2015 was premature.
The appellants in this appeal are now contending that the said application dated 2/6/2015 was filed within time as provided by Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended).
Learned Counsel contended that the appellants have made a complete somersault on appeal and by virtue of Section 15 of the Court of Appeal Act, this appeal is a re-hearing of the case as canvassed in the lower tribunal. He argued that a party is not allowed on appeal to set up a completely different case from what canvassed in the lower tribunal. He is expected to be consistent in stating and proving his case. He referred the Court to the cases of: AJIDE v. KELANI (1985) 3 NWLR (PT.12) 248 AT 269; PACERS
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MULTI-DYNAMICS LTD. v. THE M.V. DANCING SISTERS (2012) LPELR-7848 (SC). OKON v. UBI (2006) ALL FWLR (PT.328) 717 AT 742.
He urged the court not to allow the appellants to shift grounds from the case they made in the lower tribunal which is that the application for issuance of pre-hearing notice of 2/6/2015 was premature and that the valid application they relied on is that filed on 26/6/2015.
In the unlikely event of the appellants, arguments on issue one being allowed in this appeal. The 1st respondent submitted that computing the time for application for issuance of pre-hearing form from 26/5/2015, when the appellants’ agreed that application for the issuance of pre-hearing notice on 2nd day of June, 2015. Because, the day pleadings closed, is taken into consideration in the computation of the 7 days prescribed by Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended). Therefore, the last day when they ought to have filed the application is 1/6/2015. He cited in support the case of OKECHUKWU v. INEC (2014) 17 NWLR 255 AT 284 – 285.
?He submitted that from whichever perspective the case of the appellants is considered, they cannot get succor.
?15
The reality is that the application for issuance of pre-hearing was filed out of time and is incompetent.
Learned Counsel submitted that assuming without conceding that the lower tribunal may have been in error in holding that the application of 2/6/2015 was premature, it is not every error that would lead to the reversal of a Court’s decision, it must be fundamental error and must affect the justice of the case and lead to miscarriage of justice if not set aside. He referred the Court to the case of: OHAKIM v. AGBASO (2010) 19 NWLR (PT.1226) AT 172.
He insisted that the application of 2/6/2015 was filed out of time. The mere fact that the lower tribunal held that the application was premature does not change its true status. This is, more so, given the fact that by Paragraph 18(4) of the 1st Schedule there is no room for extension of time. Once a petitioner is out of time in filing the application for the issuance of pre-hearing notice.
Learned Counsel submitted that the case of SA’EED v. YAKOWA (SUPRA) cited by the appellants has been overtaken and distinguished by the Supreme Court in the case of OMISORE v. AREGBESOLA delivered on 27/5/2015 in suit No.
?16
SC.204/2015. Where the apex Court held that because Paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended) prohibits extension of time where a party is out of time in complying with Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended), the saving provision of Paragraph 53 of the First Schedule are not applicable.
The 1st respondent submitted further that the time when pleadings close for the purpose of petitioners applying for the issuance of pre-hearing notice in compliance with Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended), is not determined by the time when parties, especially the respondents filed their pleadings. It is rather determined by the time-frames set out in Paragraphs 10(2), 12(1) and 16(1) of the First Schedule to the Electoral Act, 2010 (as amended).
He maintained that the reasons why compliance with Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) is not left to the whims, caprices and antics of the respondents in filing their replies is due to the time constrain in the election matters as provided in Section 185 of the CFRN 1999 as
?17 amended and Section 134(2) Paragraph 18(1) of the Electoral Act, 2010 (as amended) which provide that judgment must be delivered within 180 days from the date of filing petition. He referred the Court to the cases of: OKECHUKWU v. INEC 2014 (SUPRA); OMISORE v. AREGBESOLA (SUPRA); WILLIE v. CHARLIE (2011) LPELR-4242 CA.
He submitted that the petitioners had no obligation to wait until all the respondents file their replies before applying for the issuance of pre-hearing notice as the appellants seem to be contending. He maintained that pleadings are deemed closed once the timelines provided for filing pleading lapse whether one or more respondents fail to file their replies. He referred the Court to the cases of: IKORO v. IZUNASO & ORS (2008) LPELR-4302 CA; IKPE v. ELIJAH (2011) LPELR – 4516 CA; IREK v. OPECHI Unreported decision of the Court of Appeal Calabar Division in Appeal No. CA/C/NAEA/151/2015 delivered on 3rd September, 2015.
He maintained that it is submitted in the appellants’ brief of argument that 25/6/2015 was a Sunday and a non juridical day pursuant to Section 15 of the Interpretation Act, which made their application filed on 26/6/2015 competent. He
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submitted that contrary to the appellants’ argument 25th June, 2015 was a Thursday and nowhere near a Sunday.
He contended that in any case even if 25/6/2015 was, indeed, a Sunday it would still not have availed the appellants as the interpretation act is not applicable in election matters. He referred the Court to the Supreme Court case of: OMISORE v. AREGBESOLA (unreported) delivered on 27/5/2015 in suit No. SC.204/2015.
He urged the Court to resolve this issue in the negative and against the appellants and affirm the decision of the lower tribunal.
The 2nd and 3rd respondents submitted that they agree with the submission of the appellants’ Counsel at pages 5 and 6 of their brief of argument that in the computation of time for filing of pleadings or other processes in election petitions, it is the time stipulated or set out in the First Schedule to the Electoral Act, 2010 (as amended) that should be taken into account and not when such processes were actually filed. He referred the Court to the case of IKORO v. IZUNASO (2010) ALL FWLR (PT.521) 1550 AT 1572.
?Finally he urged the Court to dismiss the appeal and affirm the decision of the lower tribunal dismissing
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the petition as abandoned.
We have been referred to the provision of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended). The said Paragraph 18(1) is hereby reproduced for ease of reference 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 pre-hearing notice as in form TF 007.”
In the interpretation of the provision of Paragraph 18(1) reproduced above where there are more than one respondent, the provision of Paragraph 18(1) must be read together with the provisions of Paragraph 49 of the same First Schedule to the Electoral Act, 2010 (as amended) which stipulates as follows:
”49. Two or more candidates may be made respondents to the same petition and their case may, for the sake of convenience be heard at the same time but for all purposes (including the taking of security) the election petition shall be deem to be a separate petition against each of the respondent”
The effect of reading the two provisions together is that the petition against each
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respondent is separate and distinct.
The provision of Paragraph 18(1) will be applied to each respondent as he files his reply in answer to the petition. That is to say that the petitioner is not required to wait for all the respondents to file their respective replies before complying with the requirement of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended).
?Since an election petition is deemed to be a separate petition against each of the respondent to the petition, the petitioner has a duty to comply with the requirement of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) separately against each of the respondents, particularly where the respondent has not filed a joint reply. The import of this requirement is that the moment any of the respondents is served with the petition, time for compliance with the provisions of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) begins to run.
?In the instant case, the respondents filed separate replies. The 1st respondent’s reply in answer to the petition was filed on 2/6/2015. See page 201 of the record of appeal. The petition was served
?
21
on the 1st respondent by substituted means on 12/5/2015. By virtue of the provisions of Paragraph 12(1) of the First Schedule to the Electoral Act 2010 (as amended), the 1st respondent has 14 days from the date of service within which to file his reply.
In computing the time for the 1st respondent to file his reply, time started to run from 12/5/2015 being the date he was served with the petition and elapsed on 25/5/2015 which was the 14th day. The time of 7 days within which the petitioner is to comply with the provision of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) started to run from 25/5/2015 and elapsed on 31/5/2015.
It follows therefore in the instant case that the application for issuance of pre-hearing notice filed on 2/6/2015 was filed outside the time prescribed by Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended).
The 2nd, 3rd and 4th respondents were served with the petition on 17/4/2015. The 14 days to file their reply as prescribed by Paragraph 12(1) of the First Schedule to the Electoral Act, 2010 (as amended) elapsed on 30/4/2015. The 7 days for the petitioner to comply with the
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provision of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) elapsed on 6/5/2015. In the instant case the application made on 2/6/2015 for pre-hearing notice is clearly out of time.
It is clear from the record before us that the 1st respondent filed his reply to the petition on 2/6/2015 and was served on the petitioners on 3/6/2015. The 2nd and 3rd respondents filed their joint reply on 11/6/2015. The 4th respondent filed its reply on 14/5/2015. All the replies filed by the respondents were filed outside the time stipulated by the provisions of Paragraph 12(1) of the First Schedule to the Electoral Act 2010 (as amended).
The petitioner was not supposed to wait indefinitely for the respondents to file their replies before he applied for the issuance of pre-hearing notice. See IKPE v. ELIJAH 2011 LPELR 4516.
Upon the expiration of the time prescribed for filing of the reply by the respondent, the appellant ought to have applied for the issuance of pre-hearing notice.
?The filing of the respective replies of the respondents out of time and the regularization of same by the tribunal does not stop the time prescribed by Paragraph 18(1) of
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the First Schedule to the Electoral Act 2010 (as amended) from running.
The contention of the appellants’ Counsel that the regularization of the respondents’ replies by the tribunal reopened the pleadings and room for the appellant to re-apply for the issuance of pre-hearing notice is clearly erroneous and is not supported by any provision of the Electoral Act or Rules or Practice Direction.
The application made on 26/6/2015 is also caught up by the provision of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended). The learned appellants’ Counsel has argued that his second application was filed within time and the tribunal did not take into consideration the provisions of Section 15 of the Interpretation Act which provides that Sundays are not to be counted where the rule allows less than seven days for doing of an act.
In the instant case, the provision of the Interpretation Act is inapplicable in election matters, so said the Supreme Court in the case of OMISORE v. AREGBESOLA SC/204/2015 unreported delivered on 27/5/1015 where C.C. Nweze JSC had this to say:
“…it is not in doubt that the main plank of their contention is that, in
24
the interpretation of the time frame stipulated in Paragraph 16(1) and (2) of the First Schedule to the Electoral Act as amended, the relevant instrument to be considered is Section 15(4) and (5) of the Interpretation Act, Cap 123 LFN, 2004 …..
The simple answer is that the said Interpretation Act is inapplicable to this matter being an election matter, Okechukwu v. INEC (supra). Thus his reply was not filed in strict fidelity to the time protocol ordained in Paragraph 16 (supra), the lower Court rightly struck it out. This must be so because the timelines therein are sacrosanct due to the peculiar nature of the election matters which are time-bound, Buhari v. INEC and Ors (2008) 19 NWLR Pt.1120 246. ….. in effect, any process filed out of time is incompetent and liable to be struck out…”
On the whole the lone issue as identified for determination is resolved in favour of the respondents against the appellant. The appeal lacks merit and it is hereby dismissed.
Parties are to bear their costs of prosecuting this appeal.
STEPHEN JONAH ADAH, J.C.A.: I agree.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.
Appearances
C. G. MOSES ESQ For Appellant
MATHEW OJUA ESQ, with him For 1st Respondent
A. A. UBO ESQ, J. A. DAKIM ESQ,
ALEX ANOH ESQ. M.E. ADOMI ESQ,
NBA E. U. UKWENI ESQ, K. P IWARA ESQ.
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Appearances
C.G. Moses Esq.For Appellant
AND
Mathew Ojua Esq.
A.A. Ubo Esq.
J.A. Dakim Esq.
Alex Anoh Esq.
M.E. Adomi Esq.
NBA E.U. Ukweni Esq.
K.P. Iwara Esq.For Respondent
