OLUWAROTIMI ODUNAYO AKEREDOLU v. DR. OLUSEGUN MICHAEL ABRAHAM & ORS
(2019)LCN/12507(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of January, 2019
CA/A/1177/2018(R)
RATIO
INTERPRETATION: THE NOSCITURA SOCIIS RULE
“The rule is Noscitur a sociis which states that the sense in which a word is used depends on the subject matter and con. The meaning of the word is ascertained from its companions or associates. Under this rule, the meaning of questionable or doubtful words or phrases in a statute can be ascertained by reference to the meaning of other words or phrases associated with it. As the Supreme Court held in Matari v Dangaladima (1993) 2 SCNJ 122 that- “The ordinary rules of construction of statutes, not only counsel, but also dictate the reading of the related provisions of the statute together, and as well as reading the statute as a whole. This enables arriving at a construction of the intention of the statute related sections and its objectives of the law matter. See Mobil Oil (Nig.) Ltd. v. F.B.I.R. (1977) 3 S.C. 97. See also University of Ibadan v. Adamolekun (1967) 1 All N.L.R. 2013. Per Karibi-Whyte, JSC. (P. 19, Paras. C-E).” See also Ihedioha v. PDP & Ors (CA/OW/556/2018) of 29-12-2018.” PER EMMANUEL AKOMAYE AGIM J.C.A.
JUDGMENT: APPEAL AGAINST INTERLOCUTORY DECISIONS IN A PRE ELECTION CASE
“It is clear from a combined reading of the two subsections that appeals against interlocutory decisions in a pre-election case can only be brought after the delivery of the final judgment in the case following conclusion of the proceedings. The word ”judgment” in Subsection (11) must be read in relation to the words “final judgment” in Subsection (8). It has to be so read to make the subsections consistent. If so read, the word judgment in Subsection (11) would ordinarily mean final judgment. Therefore the time for appealing against the interlocutory decision in a pre-election case as the final judgment is within 14 days after the date of delivery of the judgment. The Subsections in Section 285 of the 1999 Constitution (Fourth Alteration) must be read together so as not to defeat the object or intendment of that section.” PER ADAMU JAURO, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
OLUWAROTIMI ODUNAYO AKEREDOLU Appellant(s)
AND
1. DR. OLUSEGUN MICHAEL ABRAHAM
2. ALL PROGRESSTVES CONGRESS (APC)
3. CHIEF JOHN ODIGHIE OYEGUN
4. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC) Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment):
The instant appeal number CA/A/1177/2018 and appeal number CA/A/1178/2018 are sister appeals against the interlocutory decision/ruling of the Federal High Court in a pre-election matter delivered on 9th November, 2018 by Hon. Justice (Dr.) Nnamdi D. Dimgba. The said ruling dismissed substantial part of the two preliminary objections, challenging the jurisdiction of the trial Court and competence of the suit. The parties in the two appeals are agreed that the ruling in the instant appeal will apply to the sister appeal.
The facts culminating in the instant appeal can be summarized as follows; The Ondo state Governorship primary election of the 2nd Respondent was conducted on the 3rd September 2016 in Akure, wherein the Appellant, 1st Respondent and 22 others contested. The Appellant was declared the winner of the primaries and his name forwarded to the 4th Respondent. Dissatisfied with the outcome of the primary election and declaration of the Appellant as the winner, the 1st Respondent initiated an action against the appellant and 2nd to 3rd Respondents vide an originating Summons dated and filed 23rd April, 2018.
In response to the Originating Summons, the appellant and 2nd and 3rd Respondents as 2nd defendant and 1st and 3rd Defendants respectively filed a notice of preliminary objection, challenging the jurisdiction of the Court and competence of the Suit. The two preliminary objections were heard and in its ruling delivered on 9th November, 2018 the trial Court dismissed in substantial part the preliminary objection and held that it had jurisdiction to entertain the Suit of the 1st Respondent, the trial Court also directed parties to file pleadings. See pages 3445 to 3472 of Volume 5 of the record. Dissatisfied with the aforementioned ruling the appellant challenged same vide a notice of appeal dated and filed 21st November, 2018, transmitted record on 24th November, 2018 and filed the Appellant’s Brief on 27th December, 2018.
The appellant on the same 27th December, 2018 filed a motion for accelerated hearing of the appeal, abridgement of time to file Respondents Brief and Appellant’s Reply Brief and fixing a date for expeditious hearing of the appeal. The appellant on 31st December, 2018 filed another motion to amend the Notice and grounds of appeal, as well as the Appellant’s Brief. On the date fixed for the case being 31st December, 2018, the Court was notified that the case was still on going in the trial Court. The Court then invited parties to address it on whether it should not refuse to hear this appeal in keeping with paragraph 10(b) of the Court of Appeal Practice Direction 2013 and in view of Section 285(11) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration) and order that the parties go back and continue with the proceedings at the trial Court to conclusion and rather include the grounds of this appeal in the grounds of appeal against final judgment of the trial Court.
On the said 31st December, 2018, learned counsel for the appellant applied for a short adjournment, hence the case was adjourned to 3rd January, 2019. Chief Charles Uwensuyi Edosomwan SAN, the lead counsel for the Appellant was the first to address the Court. Learned senior counsel stated that by virtue of Section 285(8) of the Fourth Alteration, the lower Court ought to have deferred its ruling but it did not, and rather proceeded to deliver the ruling.
The learned senior counsel contended that the Appellants right to appeal under Section 241 of the Constitution comes into play and is fully exercisable immediately after the ruling. It was submitted that the true spirit of Section 285 of the Fourth Alteration cannot be said to have removed interlocutory appeals. In support, reference was made to the case of Aqua Ltd Vs Ondo State Sports Council (1988) NWLR (part 91) 622.
It was argued that the word ‘decision’ used in Section 285(11) and ‘judgment’ mean the same thing. In support, reference was made to the following cases:Shettima Vs Goni (2011) 18 NWLR (part 1279) 413 at 450, Abubakar Vs Nasamu (No. 1) (2012) 17 NWLR (part 1330) 407. It was posited that the intendment of the Fourth Alteration is to delimit time for electoral proceedings. It was further contended that the proceedings in the lower Court are still ongoing and the Court has a duty to hear the appeal. In support, reference was made to the case of Dingyadi Vs PDP (2016) 15 NWLR (part 1641) 1.
In response, Prof. J. O. Amupitan SAN for the 1st Respondent, referred to pages 3383 to 3389 of the record, to submit that they suggested that the preliminary objection be considered with the final judgment, but the appellant resisted. Hence it was wrong for the appellant to blame the 1st Respondent. It was submitted that the spirit of the Fourth Alteration is a determination of pre-election matters within record time. In support, reference was made to Section 285(8) of the Constitution (Fourth Alteration) to the effect that interlocutory appeal and appeal against final judgment be taken together. In support, reference was made to the cases of Attorney General of Abia State Vs Attorney General of Federation (2006) 16 NWLR (part 1005) 265 at 381 at 381 to 382 and Egwuagwu Vs Igbomezie & Ors (2018) LPELR 43956 (CA).
It was argued by the learned senior counsel that the provision of Section 285(11) is very clear, to the effect that an appeal on anything in pre-election matters has to be filed within 14 days after judgment. It was posited that the instant appeal borders on technicality and Section 285(11) is also aimed at clearing the mischief caused by technicalities resulting in delays. It was submitted that this appeal is aimed at delaying the case which the Supreme Court had earlier warned should not be delayed. Learned senior counsel stated that the same case, earlier went on appeal to the Supreme Court. It was urged that the Court should refuse to hear the appeal based on paragraph 10(b) of the Court of Appeal Practice Direction 2013.
Mr. Omosanya Popoola Esq., of counsel for the 2nd and 3rd Respondents aligned himself with the submissions of the learned senior counsel for the Appellant. In addition to the authorities cited by the Appellant, reference was made to the case of Dickson Vs Sylva (2017) 8 NWLR (part 1567) 167 at 224 C – D. Learned counsel argued that to allow the appeal to await the judgment of the trial Court, will result in the expiration of its lifespan. It was urged that the Court should agree with the position of the appellant. Mr. S. M, Danbaba for the 4th Respondent submitted that he was leaving everything to the discretion of the Court. In a short reply on points of law, the learned senior counsel for the appellant submitted that the exercise of the right of appeal is not a technicality and that Election Petitions Practice Directions applies to pre-election matters.
A good starting point is from paragraph 10(b) of the Court of Appeal Practice Directions 2013, which provides thus:
“Without prejudice to any of the foregoing, the Court shall refuse to hear appeals arising from Interlocutory decisions of the Court below where the matter deals with any of the issues listed in 3 above and the Court is of the opinion that the grounds raised in the appeal are such that the Court can conveniently be determined by way of an appeal arising from the final judgment of the Court below, provided that where the grounds of the appeal deal with issues of pure law, the Court may exercise discretion and determine it expeditiously.”
The spirit of paragraph 10(b) is to prevent frustration of trial proceedings by appeals against interlocutory decisions. It therefore vest the Court with power to determine if an interlocutory appeal can conveniently be taken along with an appeal against the final decision of the trial Court. A consideration will now be made of some subsections of Section 285 of the Fourth Alteration. By way of prologue and preamble it must be stated that the spirit behind the fourth alteration is to fastrack and limit time for the disposal of pre-election cases.
In essence, it is aimed at seeing that pre-election cases are disposed off before the conduct of the general elections. Hence the major innovation introduced by the Fourth Alteration is the introduction of time limit within which to institute pre-election matters and time limit within which to conclude such matters, appeals inclusive, See Section 285(9) ,(10), (11) and (12) of the Fourth Alteration.
In order to achieve the noble objective of speedy disposal of pre-election matters, Section 285(8) provides thus:
“Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the Tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment.”
The essence of the above provision is to the effect that where a preliminary objection is raised as to the jurisdiction of the trial Court in order to save time, a determination of the preliminary objection should be made in the course of the final judgment. The wisdom behind this provision is to avoid unnecessary waste of time in pursuing interlocutory appeals on issues touching on jurisdiction, so that such issues can be taken along with final judgment.
Section 285(11) further provides thus:
“An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.”
The above provision is very clear and self explanatory to the effect that an appeal against any decision in the course of a pre-election matter, should be filed within 14 days of the judgment appealed against. Hence any interlocutory decision sought to be appealed against, the appeal should be filed within 14 days of the date of delivery of the judgment appealed against. This Court had cause to interprete the above provision in the case of Chief Emeka Ihedioha Vs Peoples Democratic Party & 2 Ors, Appeal No. CA/OW/556/2018 delivered on 29th December, 2018 wherein my learned brother Lord Justice E. A. Agim JCA on page 15 stated thus:
“It is in furtherance of Subsection (8) above that Subsection (11) of the same Section 285 provides that an appeal from a decision in the course of a pre-election matter shall be filed after the date of the delivery of the judgment in the case, The exact reads thusly – “An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.”
It is clear from a combined reading of the two subsections that appeals against interlocutory decisions in a pre-election case can only be brought after the delivery of the final judgment in the case following conclusion of the proceedings. The word ”judgment” in Subsection (11) must be read in relation to the words “final judgment” in Subsection (8). It has to be so read to make the subsections consistent. If so read, the word judgment in Subsection (11) would ordinarily mean final judgment. Therefore the time for appealing against the interlocutory decision in a pre-election case as the final judgment is within 14 days after the date of delivery of the judgment. The Subsections in Section 285 of the 1999 Constitution (Fourth Alteration) must be read together so as not to defeat the object or intendment of that section.”
The case law authorities cited by the appellant and the one Cited by the 2nd and 3rd Respondents, still remain good law but do not relate to the interpretation of the Fourth Alteration to the Constitution which is a new and Novel provision in the Constitution. The instant appeal is an interlocutory appeal, hence the proper time to file same is within 14 days after delivery of the final judgment appealed against. There is nothing to show that the appellant would suffer any injustice if this appeal should wait till after conclusion of the trial proceedings. Section 285(11) has changed the timing of filing appeals against interlocutory decisions, to wit within 14 days after delivery of judgment appealed against. Consequent upon the foregoing, this Court hereby referrers to hear this interlocutory appeal in line with paragraph 10(b) of the Court of Appeal Practice Direction 2013 and Section 285(11) of the Fourth Alteration to the 1999 Constitution. It is accordingly ordered that the appeal should await the conclusion of the trial proceedings pending at the trial Court and final judgment before it can be entertained.
The instant appeal is hereby struck out. The decision in this appeal as earlier said applies to appeal No. CA/A/1178/2018. The said appeal No. CA/A/1178/2018 is also struck out. There shall be no order as to costs.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice Adamu Jauro, JCA. I agree with the reasoning, conclusions and orders therein.
Both sides agree that by virtue of S.285(8) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration), the trial Court having heard arguments on the preliminary objection to the competence of the suit and to its jurisdiction, should have suspended its ruling on the objection and delivered it at the stage of the final judgment. But the trial Court did not suspend its ruling till the stage of the final judgment as required by S.285(8), but proceeded to deliver its ruling in the course of the pending proceedings.
Learned SAN for the appellant has argued that the delivery of the ruling before the final judgment gave rise to their right to appeal against that ruling to this Court by virtue of S.241(1)(a) of the 1999 Constitution and that if the filing of this appeal had waited till after the final judgment or if the hearing of this appeal is suspended till after the final judgment in the suit pending at the trial Court, the 14 days period allowed for the filing of the appeal by S.285(11) of the 1999 Constitution or the 60 days period allowed by S.285(12) of the same Constitution for the hearing of the appeal would expire and there is no provision in S.285(11) and (12) for extension of the times prescribed therein for the filing or hearing of pre-election appeals. It is obviously impossible to appeal against the ruling after the expiration of those periods. This would deprive the appellants their constitutional right of appeal vested in them by S.241(1) of the 1999 Constitution and their right to fair hearing vested in them by S.36(1) of the same Constitution and inflict injustice on them.
Learned SAN for the 1st respondent drew our attention to the portions of the record of this appeal that show that the issue of whether the trial Court should hear and determine the objection before the final judgement arose at the trial Court when the appellant herein argued the objection, that while the respondent herein urged the trial Court to comply with S.285(8) and not determine the objection in the course of the proceedings, the appellant herein urged the trial Court to go ahead and determine it, insisting it can do so. The Learned SAN for the 1st respondent then argued that the appellant cannot validly and competently argue in this appeal that even though the trial Court should not have decided the objection before final judgment, but having done so, the appellant would suffer the injustice of loss of his right to appeal against that decision if this appeal is not heard and ordered to wait till after final judgment in the suit pending at the trial Court that the appellant put itself in this position and should not be heard to complain and that it is suffering from a situation it created. This argument by Learned SAN for 1st respondent is supported by the record of this appeal.
Why did the appellant argue contrary to S.285(8) and urged the trial Court to decide the objection in violation of that provision. It is clear from the express words of S.285(8) that by requiring that ruling on any objection or interlocutory issue be suspended and delivered at the stage of final judgment it intends to prevent or avoid interlocutory appeals that can arise from delivering such ruling before the final judgment, which appeals have in previous cases frustrated and truncated the trial of the merit of pending pre-election suits. The further intendment of S.285(8) is that all such decisions be rendered along with the final judgment, so that appeals against the decisions on such objection and interlocutory issues can be brought after the final judgment.
That is why S.285(11) provides that appeals against such decision shall be filed from the date of delivery of the judgment. The exact word of Subsection (11) reads thusly- “An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.” Learned SAN for the appellant has argued, that the use of the word ‘decision’ and the word ‘judgment’ in the above provision in Subsection (11) makes no difference, as both are synonymous and were used therein interchangeably and mean the same. For this submission he relied on Shettima v Goni (2011) 18 NWLR (Pt. 1279) 413 and Abubakar v Nasamu (2012) 17 NWLR (Pt. 1330) 407 and S.318(1) of the 1999 Constitution which defines a decision to mean any determination of a Court and includes judgment.
The above submission of Learned SAN is not valid for the following reasons. The provision interpreted and applied by our respected Supreme Court did not include any provisions like S.285(8) and did not express the intention of precluding the determination of preliminary objections and interlocutory issues before the final judgment in the suit as is stated in S.285(8) in our instant case. So the con of the provisions applied in those cases is completely different from our present case. The definition of “decision” to include “judgment” in S.318(1) of the Constitution cannot apply to the word “decision” in the con it is used in the Fourth Alteration of the 1999 Constitution’ S. 318(1) excludes its definition of a word or phrase where the con otherwise requires. In other words, it makes the meaning it gives to the word therein subject to the particular con it is used in a particular provision. This is clear from the opening words of that section thusly- “in this Constitution, unless it is otherwise expressly provided or the con otherwise requires.” The word decision, issued in S.285(11) in the con of distinguishing it as the Courts determination of preliminary objections or interlocutory issues from the Court’s final determination of the merit of the suit after conclusion of trial in the case in furtherance of the express provisions of S.285(8).
In determining the con in which a word is used, the subsection containing the word must be read with the other subsections in the section to further and not defeat the object of the provision. The rule is Noscitur a sociis which states that the sense in which a word is used depends on the subject matter and con. The meaning of the word is ascertained from its companions or associates. Under this rule, the meaning of questionable or doubtful words or phrases in a statute can be ascertained by reference to the meaning of other words or phrases associated with it.
As the Supreme Court held in Matari v Dangaladima (1993) 2 SCNJ 122 that- “The ordinary rules of construction of statutes, not only counsel, but also dictate the reading of the related provisions of the statute together, and as well as reading the statute as a whole. This enables arriving at a construction of the intention of the statute related sections and its objectives of the law matter. See Mobil Oil (Nig.) Ltd. v. F.B.I.R. (1977) 3 S.C. 97. See also University of Ibadan v. Adamolekun (1967) 1 All N.L.R. 2013. Per Karibi-Whyte, JSC. (P. 19, Paras. C-E).” See also Ihedioha v. PDP & Ors (CA/OW/556/2018) of 29-12-2018.
The established contemporary judicial practice in interpretation of statutes is to apply all the three basic rules of interpretation progressively beginning with the literal rule, instead of in an isolated manner, in each case, to arrive at a meaning that would not defeat the object of the provision. So that if the application of the literal rule alone would produce a meaning contrary to the overall intendment of a section, then a purposive approach must be used to arrive at a meaning that meets the object of that statute.
The exercise of the right vested on a part by S.241(1) of the 1999 Constitution to appeal against an interlocutory decision of the trial Court in a pending pre-election case is obviously not abrogated by S.285(8) and (11) of the 1999 Constitution which merely require that such right can only be exercised after the final judgment in the suit.
In the light of the foregoing, and for the fuller reasons ably stated in the very erudite judgment delivered by my Learned brother, Lord Justice Adamu Jauro, JCA, I also strike out this appeal and abide by all the orders made therein, including the order that this ruling apply with equal force to the sister appeal No. CA/A/1178/2018.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the lead ruling just delivered by my learned brother, Adamu Jauro, JCA, and I entirely agree with his reasoning and conclusions. I too would strike out this appeal and abide by all other consequential orders made in the lead Ruling.
Appearances:
Chief Charles Uwensuyi- Edosomwan, SAN with him, Olumide Olujinmi, Esq., Akinsola Olujimi, Esq., Olufemi Atetedaiye, Esq., Ayodele Akisanya, Esq., Oluwole Ilori, Esq., Abdulwahab Abayomi, Esq., Temitope Adeyemi, Esq., Ifeoluwa Ajani, Esq. and Antonia O. Balogun, Esq.For Appellant(s)
Prof. J.O. Amupitan, SAN with him, J. J. Usman, Esq. O.A. Akinola, Esq., A.O. Philip, Esq., C.O. Ogbo, Esq. and F.M. Nworah, Esq. for the 1st Respondent.
Omosaya Popoola, Esq. with him, B. A. Oyun, Esq., Thomas Ojo, Esq. and Tolu Salawa, Esq. for the 2nd and 3rd Respondent
S. M. Danbaba, Esq. for the 4th Respondent
For Respondent(s)
