OBONG NSIMA UMO & ANOR v. HON. (BARR) ITA SOLOMON JAMES ENANG & ORS
(2011)LCN/4859(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of October, 2011
CA/C/NAEA/237/11
RATIO
ELECTION PETITIONS : WHEN THE TIME FOR THE PETITIONER TO FILE REPLY STARTS TO RUN
The authorities referred to by the 1st Respondent’s learned counsel ie Kumalia vs. Sherrif (2009) 9 NWLR Pt 1146 Page 420 at 432-433 and Action congress vs. Jang (2009) 4 NWLR pt 1132 page 475 at 505-5. Decisions were reached on the provisions of the Electoral Act 2006. In these cases the time started running from the date of the event. The provisions of the Electoral Act 2010 (as amended), time starts to run on the day after the event. Moreover paragraph 54 of the 1st schedule of the Electoral Act is instructive. It made reference to the use of the Federal High court (Civil Procedure Rules) 2009. The Federal High court rules 048 R (1) (c) is most relevant and provides: (c) where the act is required to be done within a period which does not exceed six days, holidays shall be left out in computing the period. The period stated in the Electoral Act paragraph 16 (1) provides that the petitioner shall be entitled to file his Reply within 5 days. The number of days is within the 6 days envisaged by 048 R (1) (c) of the Federal High court (Civil procedure) Rules 2009. It therefore follows that 10th July, 2011 which is a Sunday shall not be counted when counting the days. The petitioners’ time started to run on Monday 11th July, 2011. Therefore the petitioner ought to file his reply on or before 15th July, 2011. PER UZO I. NDUKWE-ANYANWU, JCA
COMPUTATION OF TIME: POSITION OF THE COURT ON THE COMPUTATION OF TIME FOR FILING PETITIONS
The locus classicus on the computation of time is the Supreme Court judgment in Akeredolu vs Akinremi (1935) 2 NWLR (Pt.10) 787 at 793-794 where the Court held as follows: “It is however, true that in section 18(1) of the Interpretation Act, 1964, the term “month” is defined as “a calendar month” reckoned according to the Gregorian calendar, and Gregorian calendar is the correction of the Julian calendar made in 1582 by Pope Gregory XIII (see 5th Edition. The concise oxford Dictionary page 540). But, by section 15(2)(a) of the Interpretation Act, 1964: “A reference in an enactment to a period of days shall be construed:- (a)Were the period is reckoned from particular event, as excluding the day on which the event occurs;”It would follow that in computing the period for the filing of the appeal in this matter the date – 10th April, 1985 – on which the court on of Appeal delivered its judgment must be excluded. The calculation thus begins on 11th April, 1985 and the three months from hence must end at midnight of 10th July, 1985. The one day by which Mr. Ajayi has said the appellants were out of time becomes the one day which by section 15(2) of the Interpretation Act, 1964, must be excluded in the computation, on the footing that the appeal was filed on 10th July, 1985. The principle of this exclusion of the day of the happening of the event has become a principle of general acceptance. Maxwell on Interpretation of statutes 12th edition page 309, citing Lester vs. Garland (1808) 15 Ves. 248 and Re North Ex parte Hasluck (supra), has it thus; “Where a statutory period runs “from” a named date “to” another or the statute prescribes some period of days or weeks or months or year within which some act has b 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 should be read along with the provisions of the law for the time being in force and not that of yester-years, in this case the Electoral Act No.6 of 2011 as amended and Order 48 Rule 1(c) of the Federal High Court (Civil Procedure Rules) 2009 but not the repealed Electoral Act No. of 2006. PER JOSEPH TINE TUR, J.C.A
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. OBONG NSIMA UMO
2. ACTTON CONGRESS OF NIGERIA – Appellant(s)
AND
1. HON. (BARR) ITA SOLOMON JAMES ENANG
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
UZO I. NDUKWE-ANYANWU, JCA (Delivering the Leading Judgment): This is an appeal against the judgment of the tribunal Holden in Uyo Akwa Ibom State delivered on 8th August, 2011 in Petition No: EPT/AKS/SEN/18/2011.
The facts of this petition is as recounted by the Appellant and admitted by the 1st Respondents in his brief. I will quote the appellants recount of the facts for ease of reference.
The respondents were off served with the petition. The first respondent filed his reply to the petition on the 18th day of June, 2011 and served some on the Appellant on the 9th day of July, 2011. The 2nd Respondent did not file any reply until the date the petition was dismissed. The 3rd Respondent filed two replies by two separate and different counsels out of time which caused petitioners counsel to file a motion on notice on the 23rd day of July for leave to bring the application outside pre-hearing session for an order striking out the two replies filed by 3rd Respondent some being on abuse of court processes. See page 1277 to 1284 of the Record of Appeal.
1st Respondent reply to the petition was served the petitioner on the 9th day of July, 2011 and on the 15th day of July the petitioner/appellant filed their reply to the reply of the 1st Respondent within time and served same on the 18th day of July, 2011.
On the 21st day of July, 2011 the petitioner filed a Motion on Notice to the secretary of the Tribunal to activate a pre-hearing session, unknown to the petitioners/Appellant counsel that the petition was among the 23 which had been transferred from Tribunal No.1 to Tribunal No.2 in Akwa Ibom State.
These were the facts as stated by the appellant and upon these facts the tribunal delivered its considered judgment and dismissed this petition as having been abandoned.
Being aggrieved the appellant filed a notice of appeal with three grounds on 27th September, 2011. The Appellant filed their appellants brief on 14th October 2011 and articulated three issues for determination as follows:
1. Whether indeed the Motion on Notice filed on the 21st day of July by petitioners/Appellant counsel to activate a pre-hearing session was filed out of time.
2. Whether the first panel of the National and state House of Assembly Election Tribunal (Panel No. 1) and the second National and State Houses of Assembly election Tribunal (Panel No. 2) have concurrent and or Co-ordinate Jurisdiction and if so whether one can safely set aside the sittings, steps taken and orders made by the other.
3. Whether the Tribunal No. 2 is not bound by the Court of Appeal Decision in F.B.N. Plc. V. Tsokwa (2004) 5 NWLR (pt. 866) 271 CA held 13 and 14.
However the Appellant chose to argue only one issue. The 1st Respondent’s brief filed on 24th October, 2011 wherein the 1st Respondent also argued that lone issue.
To my mind, the issue of stake here is “whether the Petitioners reply to the 1st Respondent reply filed on 15th July, 2011 and served on 18th July, 2011 was filed within time.”
The appellant stated in their brief facts of the appeal and admitted to by the 1st Respondent that the petitioner was served with the 1st Respondents brief on Saturday 9th July, 2011. Appellants counsel argued that 10th July was a Sunday and as such time should start running from Monday 11th July. However, the 1st Respondent argued that time should start running on Sunday 10th July, 2011.
The learned appellants counsel referred the court to 048R 1 (a) Federal High Court (Civil Procedure) Rules 2009. See also paragraph 54 of the 1st schedule of the Electoral Act 2010 (as amended) which provides as follows.
Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure rules shall apply with such modifications as may be necessary to rendered them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in on ordinary civil action.
This section, envisages that where there is a lacuna in the Electoral Act 2010, Recourse should be taken in the use of the Federal High court (Civil procedure) Rules 2009. See 048 R1 which provides 0.48(1) (a) as excluding the day on which the order is made or on which the event occurs;
(b) where the last day of the period is a holiday the time shall continue until the end of the next day following which is not a public holiday;
(c) where the act is required to be done within a period which does not exceed six days, holidays shall be left out in computing the period.
In this order holiday means a day which is, a Sunday or a public holiday as declared by the Federal Government. Both the appellants and the 1st Respondents are ad idem as to the dates everything happened. What is admitted needs no further proof. The controversy is when does time start running after service of the process. The authorities referred to by the 1st Respondent’s learned counsel ie Kumalia vs. Sherrif (2009) 9 NWLR Pt 1146 Page 420 at 432-433 and Action congress vs. Jang (2009) 4 NWLR pt 1132 page 475 at 505-5. Decisions were reached on the provisions of the Electoral Act 2006. In these cases the time started running from the date of the event.
The provisions of the Electoral Act 2010 (as amended), time starts to run on the day after the event. Moreover paragraph 54 of the 1st schedule of the Electoral Act is instructive. It made reference to the use of the Federal High court (Civil Procedure Rules) 2009. The Federal High court rules 048 R (1) (c) is most relevant and provides:
(c) where the act is required to be done within a period which does not exceed six days, holidays shall be left out in computing the period.
The period stated in the Electoral Act paragraph 16 (1) provides that the petitioner shall be entitled to file his Reply within 5 days. The number of days is within the 6 days envisaged by 048 R (1) (c) of the Federal High court (Civil procedure) Rules 2009. It therefore follows that 10th July, 2011 which is a Sunday shall not be counted when counting the days. The petitioners’ time started to run on Monday 11th July, 2011. Therefore the petitioner ought to file his reply on or before 15th July, 2011. The petitioners Reply filed on the 15th July, 2011 is therefore filed within the time envisaged by paragraph 16 (1) of the 1st Schedule to the Electoral Act 2010 (as amended).
The learned Tribunal therefore misapplied the law in terms of the computation of time: when time should start running against the Petitioner.
The Petitioner was within time filing the Petitioners Reply to the 1st Respondent’s Reply.
The motion filed on the 21st July, 2011 was, therefore filed with in the 7 days envisaged by paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 (as amended).
This appeal is meritorious and is hereby allowed. The judgment of the Tribunal delivered on 8th August, 2011 is hereby set aside. It is hereby ordered that Petition No: EPT/AKS/SEN/18/2011 is
remitted to the Tribunal for trial. It is hereby also ordered that forms TF 007 and TF 008 are to be issued as a consequential order flowing directly from the judgment. Inokoju vs. Adeleke (2007) 4 NWLR Pt.1025 page 432, Limain v. Mohammed (1999) 9 NWLR Pt.617 Page 116 A-G, Fed AIC Ltd (2000) 6 SC Page 175.
I make no orders as to costs.
EJEMBI EKO, J.C.A.: I read in draft the judgment just delivered by my learned brother Uzo I. Ndukwe-Anyanwu, JCA. The only five issue in the appeal is whether the appellant applied for pre-hearing session within time. My learned brother has resolved that only live issue. I am in complete agreement with analysis and conclusions on the issue. I have nothing further to add. I hereby adopt the judgment, including the consequential orders therein.
JOSEPH TINE TUR, J.C.A.: I have read the judgment delivered by my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I concur.
The locus classicus on the computation of time is the Supreme Court judgment in Akeredolu vs Akinremi (1935) 2 NWLR (Pt.10) 787 at 793-794 where the Court held as follows:
“It is however, true that in section 18(1) of the Interpretation Act, 1964, the term “month” is defined as “a calendar month” reckoned according to the Gregorian calendar, and Gregorian calendar is the correction of the Julian calendar made in 1582 by Pope Gregory XIII (see 5th Edition. The concise oxford Dictionary page 540).
But, by section 15(2)(a) of the Interpretation Act, 1964:
“A reference in an enactment to a period of days shall be construed:-
(a)Were the period is reckoned from particular event, as excluding the day on which the event occurs;”It would follow that in computing the period for the filing of the appeal in this matter the date – 10th April, 1985 – on which the court on of Appeal delivered its judgment must be excluded. The calculation thus begins on 11th April, 1985 and the three months from hence must end at midnight of 10th July, 1985. The one day by which Mr. Ajayi has said the appellants were out of time becomes the one day which by section 15(2) of the Interpretation Act, 1964, must be excluded in the computation, on the footing that the appeal was filed on 10th July, 1985. The principle of this exclusion of the day of the happening of the event has become a principle of general acceptance. Maxwell on Interpretation of statutes 12th edition page 309, citing Lester vs. Garland (1808) 15 Ves. 248 and Re North Ex parte Hasluck (supra), has it thus;
“Where a statutory period runs “from” a named date “to” another or the statute prescribes some period of days or weeks or months or year within which some act has b 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 should be read along with the provisions of the law for the time being in force and not that of yester-years, in this case the Electoral Act No.6 of 2011 as amended and Order 48 Rule 1(c) of the Federal High Court (Civil Procedure Rules) 2009 but not the repealed Electoral Act No. of 2006.
Accordingly, the Tribunal erred to have computed time in the way and manner it did which resulted into the striking out of the petition without a hearing on the merit.
I also allow the Appeal and abide by the Orders of my Lord.
Appearances
M.A. Peters Esq.For Appellant
AND
N.A. Nta with M.E. Ukweni, P.A. Akpoke, O.E. Honsefall, D.O. Nduanusi, O.J. Abu,
A. N. Ekuna Nkanu (Mrs.)
C. U. Out and U. Omefi (Mrs.) – for the 1st Respondent.
2nd & 3rd Respondent were served.For Respondent
