PRINCE CELESTINE AWOR v. HON. GEORGE OBEN ETCHI & ORS.
(2011)LCN/4817(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of October, 2011
CA/C/NAEA/208/2011
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISION OF ORDER 10 RULE 1 OF THE COURT OF APPEAL RULES 2011 AS REGARDS WHAT IS REQUIRED OF A RESPONDENT INTENDING TO RELY UPON A PRELIMINARY OBJECTION TO THE HEARING OF AN APPEAL
In this regard, the material provision of Order 10 Rule 1 of the Court of Appeal Rules, 2011 has been flouted by the 3rd Respondent. The Rule provides that: “1. A Respondent intending to rely upon a preliminary objection to the hearing of an appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.” The consequence of failure to comply with the above Rule as stated in Rule 3 of the same Order 10 is that the Court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the Respondent or make such other order as it thinks fit. The briefs in the instant appeal have been adopted and it has become too late to adjourn the hearing of the appeal. The only course open to this Court is to discountenance the preliminary objection and I do so in this appeal. See N.A.I.C. vs. Wema Securities & Finance plc (2007) All FWLR (Pt.345) 366. PER ISAIAH OLUFEMI AKEJU, J.C.A.
INTERPRETATION OF STATUTE: IMPLICATION OF THE USE OF THE WORD “OR” AS CONTAINED IN PARAGRAPH 18(1) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT, 2010 AS TO WHEN A PETITIONER MUST FILE THE APPLICATION FOR ISSUANCE OF PRE-HEARING NOTICE
…the issue of the application for issuance of pre-Pre-hearing session and Schedule by paragraph 18 of the 1st Schedule to the Electoral Act, 2010 (as amended). Subparagraph 1 of paragraph 18 provides that: “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 as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007.” Sub-paragraph 3 thereof allows the Respondent to bring the application where the petitioner fails to do so, while the Tribunal is enjoined to dismiss the petition where neither the petitioner nor the respondent files an application under paragraph 18(1). Paragraph 18 (1) is clearly worded to the effect that the use of the word “OR” therein gives the petitioner an option to file the application for issuance of pre-hearing notice either after the filing and service of the petitioner’s reply on the respondent or after the filing and service of the respondent’s reply on the petitioner. What is common to both is that the application must be filed within 7 days after the filing of the process. PER ISAIAH OLUFEMI AKEJU, J.C.A.
WITHIN: MEANING OF THE WORD “WITHIN’ AS USED IN PARAGRAPH 18 (1) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT, 2010
The meaning of the word “within” according to the Oxford Advanced Learners Dictionary 7th edition is: “before a particular period of time has passed, during a particular period of time.” Paragraph 18 (1) therefore requires the petitioner to apply for pre-hearing notice before the period of seven days has passed or during the period of seven days’ The petitioner cannot be expected to take the risk of waiting for a respondent or all the respondents to file their replies before taking step and eventually face the avoidable consequence of failure to file within 7 days which, as expressly stated in sub- paragraph 4 of paragraph 18 (1) of the 1st Schedule to the Electoral Act, 2010(as amended) is a dismissal of the petition for failure to apply as in Okereke vs. Yar’Adua (2008) 12 NWLR (Pt.1100) 95. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JURISDICTION: EFFECT OF A COURT OR TRIBUNAL LACKING THE REQUISITE JURISDICTION TO ENTERTAIN A MATTER
The jurisdiction of a court or Tribunal is no doubt a radical and fundamental issue and it forms the foundation of adjudication, for where a court lacks jurisdiction, it lacks the vires, the competence and the judicial powers to function as a court. See Oloba vs. Akereja (1988) 3 NWLR (Pt.84) 508. It is settled therefore that where a court lacks jurisdiction to entertain a matter, the proceedings conducted therein is a nullity. See Elebanjo vs. Dawodu (2006) 15 NWLR (pt. 1001) 76; Madukolu vs. Nkemdilim (1962) 1 All NLR (pt.4) 587. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JURISDICTION: DISTINCTION BETWEEN THE JURISDICTION OF THE COURT OR TRIBUNAL AS A MATTER OF SUBSTANTIVE LAW AND JURISDICTION AS A MATTER OF PROCEDURAL LAW
It is quite important to make a clear distinction between the jurisdiction of the court or tribunal as a matter of substantive law and jurisdiction as a matter of procedural law. The jurisdiction of the tribunal as matter of substantive law is donated by Section 285 (1) of the constitution of the Federal Republic of Nigeria, 1999 (as amended). That is not in contention in this appeal, what is in argument here is the procedural jurisdiction of the Tribunal as to the regularity of the application for pre-hearing session notice by the appellant. I have stated that the records of appeal eloquently show that the parties before the tribunal consented to the procedure therein and no injustice was shown to have resulted therefrom. A party to an action can waive a right to a procedural matter. See Mobil Producing (Nig) Unlimited vs. LASEPA (2002) 12 SCNJ 1; Feed & Food Farms (Nig) Ltd. vs. NNPC (2009) All FWLR (pt.484) 1436. Indeed I hold that the respondents waived their rights to complain. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
PRINCE CELESTINE AWOR Appellant(s)
AND
1. HON. GEORGE OBEN ETCHI
2. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. THE PEOPLES DEMOCRATIC PARTY Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the National and State House of Assembly Election Petition Tribunal Holden at Calabar, Cross River State (hereinafter called the Tribunal) delivered on 9th August, 2011 by which the petition filed by the appellant before the Tribunal was dismissed.
The appellant and the 1st respondent were candidates at the election conducted by the 2nd respondent on 26th April, 2011 into the Akampa II Constituency seat of Cross River State House of Assembly and at the end of which the 2nd respondent declared the 1st respondent as the winner of the election and the candidate that was duly returned. The appellant who was dissatisfied with the declaration filed Election Petition No.EPT/CR/SA/14/2011 before the Tribunal and same was served on the respondents.
The 1st respondent filed his reply to the Petition on 10th June, 2011, but the 2nd and 3rd respondents did not file any reply within the statutory period and therefore applied for enlargement of time to dos so, but there is nothing on record to show that the applications were granted. Meanwhile on 20th June, 2011 after he had been served with the reply filed by the 1st respondent, the appellant as petitioner applied by motion on notice for issuance of pre-hearing session notice to the parties. The application was heard on 5th July 2011 at the proceedings attended by all the learned counsel to the 1st, 2nd and 3rd respondents who did not object to, or oppose the application. The Tribunal therefore granted the application as prayed.
The 3rd respondent thereafter filed a motion on notice on 18th July, 2011 for the following reliefs:
1. AN ORDER STRIKING OUT THE PETITIONER/RESPONDENT’S MOTION ON NOTICE DATED 20/6/2011 AND FILED SAME DAY FOR BEING INCOMPETENT.
2. AN ORDER SETTING ASIDE THE ORDER OF THIS HONOURABLE TRIBUNAL MADE ON 5TH JULY, 2011 ON THE MOTION ON NOTICE OF THE PETITIONER DATED 20/6/2011 AND FILED SAME DAY FOR WANT OF JURISDICTION.
3. AN ORDER DISMISSING THE PETITIONER’S PETITION FOR ABANDONMENT.”
The 3rd respondent’s motion was heard on 27th July, 2011 and adjourned for ruling which was eventually delivered on 9th August, 2011 dismissing the appellant’s petition for being abandoned, the main basis being that the filing of the application for issuance of pre-hearing notice by the appellant was premature.
The appellant did not accept the ruling of the Tribunal Notice and filed a Notice and Grounds of Appeal on 16th August, 2011 with six grounds of appeal and in the Appellant’s Brief of Argument settled by E. E. Osim Esq. and filed on 6th September 201l, the appellant’s learned counsel formulated four issues for determination at pages 4-5 of the Brief as follows:
“3.02 Whether there was power/vires in the lower Tribunal and or competence to entertain the 3rd Respondent Application to dismiss the petition in limine in view of the fact that the parties participated in the proceedings leading to the order without objection thereto and that the said application was taken in breach of the express provisions of section 140 (4) of the Electoral Act and Paragraph 53 particularly, paragraph 53(2) of the 1st Schedule to the Electoral Act 2010 (Grounds 1, 2 and 3)
3.03. Whether the learned justices of the lower Tribunal were right by their failure, refusal and or negligence to pronounce on all the issues raised by the parties at the lower tribunal? (Ground 4).
3.04 Whether by the express provision of paragraph 18 of the 1st Schedule to the Electoral Act, there is power in the lower court to penalize a petitioner for early and or purported premature filing of Application for issuance of Pre-Hearing Notice to the parties? (Ground 5).
3.05 Whether taking cognizance of the Affidavit evidence and the submissions of counsel both oral and written addresses, the ruling of the lower Tribunal is not perverse and or against the weight of evidence? (Ground 6).”
In the 1st Respondent’s Brief of Argument, prepared by B. Olusegun Esq., and filed on 12th September, 2011, the learned counsel set the following issues for determination:
1. Whether the lower Tribunal was wrong in entertaining and determining the 3rd respondent’s application challenging its order on grounds of nullity and or want of jurisdiction (Ground 1, 2 and 3; appellant’s issue 1).
2.Whether the lower Tribunal duly considered all the issues raised in the application before it (Ground 4; appellant’s issue 2).
3. Whether the lower Tribunal was wrong in setting aside its order of 5/7/2011 and dismissing the petition on grounds of nullity and abandonment, respectively (Grounds 5 & 6; appellant’s issues 3 & 4);”
The 2nd Respondent’s Brief of Argument was prepared by Osasu Isibor Esq. and filed on 12th September, 2011 and the learned counsel raised the issues for determination in this appeal as follows:
1. Whether there was power/vires in the lower Tribunal and or competence to entertain the 3rd Respondent’s application to dismiss the petition in limine in view of the fact that parties participated in the proceedings leading to the order without objecting to it?
2. Whether the learned justices of the lower tribunal made pronouncement on all the issues raised by parties at the lower tribunal.
3. Whether by the provision of paragraph 18 of the 1st Schedule to the Electoral Act 2010 (as amended) the lower Tribunal was not right when it penalized the petitioner for the premature filing of their application for issuance of pre-hearing notice to the parties?
4. Whether the ruling of the tribunal of August 9th 2011 was against the weight of evidence.
For the 3rd respondent, the Brief of Argument was prepared by Julius O. Idiege Esq. its learned counsel and the Brief was filed on 9th September, 2011. The learned counsel raised preliminary objection to the competence of this appeal on four grounds as stated on page 2 of the 3rd Respondent Brief of Argument. In the alternative however, the 3rd Respondent set down one issue for determination as follows:
“Whether taking into consideration the totality of the fact surrounding the application of the Appellant’s Motion of 20/6/2011 for issuance of pre-hearing session notice and the provisions of paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended), the Election Petition Tribunal, abinitio, had jurisdiction to have entertained the said Motion of the Appellant (This encompass ground one of the notice of appeal).”
At the hearing of this appeal on 22nd September, 2011, all learned counsel for the parties were present and they all adopted and relied on their respective briefs of argument to urge this court to allow or dismiss the appeal. The learned counsel to the 3rd respondent seemed convinced that the Appellant’s Brief of Argument was not filed out of time and he consequently withdrew the motion which related to ground 1 of the objection. The learned counsel to the Appellant also withdrew his own preliminary objection and the processes filed on 6th September 2011 and 16th September 2011 containing the respective objections of the 3rd respondent and the appellant were struck out.
It is pertinent to state that the 2nd, 3rd and 4th grounds of the 3rd respondent’s preliminary objection were raised and argued in the brief of argument without filing any notice thereof and delivering same to the party affected not less than three clear days before the hearing of the appeal.
In this regard, the material provision of Order 10 Rule 1 of the Court of Appeal Rules, 2011 has been flouted by the 3rd Respondent. The Rule provides that:
“1. A Respondent intending to rely upon a preliminary objection to the hearing of an appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
The consequence of failure to comply with the above Rule as stated in Rule 3 of the same Order 10 is that the Court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the Respondent or make such other order as it thinks fit. The briefs in the instant appeal have been adopted and it has become too late to adjourn the hearing of the appeal. The only course open to this Court is to discountenance the preliminary objection and I do so in this appeal. See N.A.I.C. vs. Wema Securities & Finance plc (2007) All FWLR (Pt.345) 366.
The third issue in the appellant’s brief is the same or quite similar to the issue raised also as a third issue by the 2nd Respondent which is also the lone issue raised or formulated by the third respondent, the issue of the application for issuance of pre-Pre-hearing session and Schedule by paragraph 18 of the 1st Schedule to the Electoral Act, 2010 (as amended).
Subparagraph 1 of paragraph 18 provides that:
“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 as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007.”
Sub-paragraph 3 thereof allows the Respondent to bring the application where the petitioner fails to do so, while the Tribunal is enjoined to dismiss the petition where neither the petitioner nor the respondent files an application under paragraph 18(1).
Paragraph 18 (1) is clearly worded to the effect that the use of the word “OR” therein gives the petitioner an option to file the application for issuance of pre-hearing notice either after the filing and service of the petitioner’s reply on the respondent or after the filing and service of the respondent’s reply on the petitioner. What is common to both is that the application must be filed within 7 days after the filing of the process.
The meaning of the word “within” according to the Oxford Advanced Learners Dictionary 7th edition is:
“before a particular period of time has passed, during a particular period of time.”
Paragraph 18 (1) therefore requires the petitioner to apply for pre-hearing notice before the period of seven days has passed or during the period of seven days’ The petitioner cannot be expected to take the risk of waiting for a respondent or all the respondents to file their replies before taking step and eventually face the avoidable consequence of failure to file within 7 days which, as expressly stated in sub- paragraph 4 of paragraph 18 (1) of the 1st Schedule to the Electoral Act, 2010(as amended) is a dismissal of the petition for failure to apply as in Okereke vs. Yar’Adua (2008) 12 NWLR (Pt.1100) 95. This is moreso in the instant case where the 2nd and 3rd respondents failed to file any reply within the time allowed by law.
The Tribunal in dismissing the appellant’s petition held that the application for pre-hearing notice was premature as same was filed before the close of pleadings, and this has also been the gravamen of the argument of the respondents in this appeal, all, including the Tribunal replying on the decision in Ohaka vs. Eze (2010) All FWLR (pt.525) 380. In a more recent decision of this Court in Appeal No.CA/C/NAEA/203/2011; Eneji vs. Agaji, an unreported judgment delivered on 23rd September, 2011; Uzo I. Ndukwe-Anyanwu, JCA stated as follows:
“An overzealous counsel cannot be penalized for being overzealous in an Election petition that time is of the essence. Applying earlier before the end of pleadings was ‘premature’ but the motion was moved after the close of pleadings on 14/07/11. None of the parties has been shutout by the early application….None of the parties has suffered any harm…Time is of the essence in election matters particularly in this Electoral Act of 2010 (as amended). Thus as much as possible petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute.”
In the instant case, all the parties were represented by counsel at the proceedings of 5/7/2011 at which the application of the petitioner was granted, with none of them raising any objection or complaining against the procedure adopted. The same learned counsel, and indeed all of them have now come to make an issue of the same procedure on appeal under the argument that it is jurisdictional. The jurisdiction of a court or Tribunal is no doubt a radical and fundamental issue and it forms the foundation of adjudication, for where a court lacks jurisdiction, it lacks the vires, the competence and the judicial powers to function as a court. See Oloba vs. Akereja (1988) 3 NWLR (Pt.84) 508. It is settled therefore that where a court lacks jurisdiction to entertain a matter, the proceedings conducted therein is a nullity’ See Elebanjo vs. Dawodu (2006) 15 NWLR (pt. 1001) 76; Nradukoru vs. Nkemdilim (1962) 1 All NLR (pt.4) 587.
It is quite important to make a clear distinction between the jurisdiction of the court or tribunal as a matter of substantive law and jurisdiction as a matter of procedural law. The jurisdiction of the tribunal as matter of substantive law is donated by Section 285 (1) of the constitution of the Federal Republic of Nigeria, 1999 (as amended). That is not in contention in this appeal, what is in argument here is the procedural jurisdiction of the Tribunal as to the regularity of the application for pre-hearing session notice by the appellant. I have stated that the records of appeal eloquently show that the parties before the tribunal consented to the procedure therein and no injustice was shown to have resulted therefrom. A party to an action can waive a right to a procedural matter. See Mobil Producing (Nig) Unlimited vs. LASEPA (2002) 12 SCNJ 1; Feed & Food Farms (Nig) Ltd. vs. NNPC (2009) All FWLR (pt.484) 1436. Indeed I hold that the respondents waived their rights to complain.
The application for pre-hearing was ripe for hearing on 5th July 2011 when it was heard and granted by the Tribunal in the presence of all the learned counsel for the parties, all of who not only consented but raised no objection either to the proceedings or the application itself. The Tribunal did not do justice by dismissing the petition of the appellant upon an application by the 3rd respondent brought on July 18th 2011, about 13 days after the grant of the application for pre-hearing session notices.
I therefore find merit in this appeal and it is allowed. The ruling dated 9th August, 2011 by which the Tribunal dismissed the Election Petition No.EPT/CR/SA/14/2011 is set aside. I order that the petition be remitted to the Tribunal for hearing on its merit.
I make no order as to costs.
UZO I. NDUKWE-ANYANWU, J.C.A.: I have had the privilege of reading in draft form the judgment just delivered by my learned brother I. O. Akeju, JCA. Let me stress that the Tribunal has made an order for the issuance of pre-hearing notice Forms TF 007 and TF 008. This order is subsisting. The tribunal does not have any vires to go back on its order to say that the petition is abandoned.
The idea of an application and the time frame attached to it is to make sure that the petitioner does not go to sleep.
It should be noted that with the wording of paragraph 18(1) Electoral Act, 2010 (as amended), the petitioner has to be working in the Tribunals Secretariat to know when processes are served to start counting the 7 days envisaged.
The application was filed before the close of pleading as argued by the 1st Respondent. It should be noted that 2nd and 3rd Respondents filed no reply within the time allowed by law. With this scenario when does time begin to run against the petitioner.
A zealous Appellant cannot be penalized for being so. The Respondents have not shown any miscarriage of justice as a result of the order of the pre-hearing notice.
For this and the most robust reasoning and conclusions of my learned brother Akeju, JCA, I also find merit in this appeal. Appeal is therefore allowed.
I abide by all the consequential orders contained in the lead judgment including that as to costs.
JOSEPH TINE TUR, J.C.A.: Having read in advance the judgment of my Lord, I. O. Akeju, JCA, I agree with his conclusions.
The petitioner’s application for the issuance of Form TF007 and TF008 was heard by the Tribunal on 5th day of July, 2011 without objection from learned Counsel to the Respondents. The Tribunal granted same. Paragraph 18(1) and (2) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended confers procedural jurisdiction on the Tribunal to issue to the parties Forms TF008 upon the application of the petitioner made as in Form TF007 within seven days after filing and service of the petitioner’s reply on the respondent or seven days after the filing and service of the respondent’s reply, which ever is the case. If the petitioner violated the provisions of paragraph 18(1) of the 1st Schedule in the course of making the application but neither the Respondents or their learned counsel objected and the Tribunal granted the application issuing Forms TF008 for pre-hearing session to commence, the respondents are deemed to have waived whatever procedural violations the petitioner might have committed in making the application.
In Buhari vs INEC (2008) 19 NWLR (Pt.1120) 246 the petitioner and the respondents relied on the Practice Directions to found their case and defence at the Presidential Election Tribunal only for the petitioner to challenge the constitutionality of the Practice Direction in the Supreme Court, having lost at the Court of Appeal. In dismissing the appeal Nike Tobi asked the following questions:
“What is the moral basis of issue No.5 formulated by the appellant? And that takes me to equity which is morality personified in many areas of our law. Has the appellant done equity on this issue? Has he come with clear hands? Why should he indulge himself in a Court process is one breath and then turn around in another breath to question the legality or constitutionality of the process? Will equity allow him to benefit from the Court process and at the same time urge the Court to discountenance it? Equity with its hands of cleanliness and purity will not allow the appellant to blow hot and could with the same breadth. This is because there is the possibility of injuring his health, and equity will not like him to injure his health.
I think issue No.5 is caught by the principles of estoppel by conduct. I come to this inclusion because the appellant was the first person to invoke the Practice Directions in the proceedings and he cannot deny it. That was the origin in the English courts of equity of the doctrine of estoppel in pais that is, by formal words or conduct once a party, either by his words or conduct, has intimated that he consents to an act, as in this case, the use of the Practice Directions, which has been done and that he will offer no opposition to it, he cannot later question the legality of the act he had so sanctioned to the prejudice of those who have given faith to his word. See Akanni vs Makanju (1978) 11 SC 13 at 26; Chief Okpurawa vs Chief Okpokam (1988) 4 NWLR (Pt.90) 554; Feponle vs U.I.T.H.B.M. (1991) 4 NWLR (Pt.183) 43; Hi-Flow Farm Ind. vs Unibadan (1993) 4 NWLR (pt.200) 719; Ondo State University vs. Folayan (1994) 7 NWLR (Pt.354) 1.”
While substantive jurisdiction cannot be waived by the parties or their counsel, not so with procedural jurisdiction. That can be waived. See Kossen (Nig.) Ltd. vs. Savannah Bank (Nig.) Ltd. (1995) 9 NWLR (Pt.42) 439 at 451; Adebayo vs. Johnson (1969) 1 All NLR 176 at 190 – 191 and Eboh vs. Akpori (1968) 1 All NLR 220 at 221.
The Tribunal no longer had jurisdiction to set aside the orders lawfully made on 5th July, 2011. The 3rd Respondent has not shown before this court that the Tribunal’s order violated any provisions of the Constitution or of the Electoral Act, 2010 as amended.
A Tribunal faced with the construction of the provisions of paragraphs 18(1) and 2(a)-(d) of the 1st Schedule to the Electoral Act, 2010 as amended should take into consideration the object and intention of the legislature in making provisions for pre-hearing session as set out under paragraph 18(6) to (13) of the 1st schedule. It is to ensure that the petition is dealt with as a matter of urgency, and expeditiously. That is the purport of stipulating that certain acts should be done within given time frame. Where the petitioner failed to do so, for instance, applying for pre-trial conference, paragraph 18(3) of the 1st Schedule confers power on the Respondent to apply for pre-hearing session or the dismissal of the petition else the Tribunal will dismiss the petition under paragraph 18(4) and (5) of the Schedule.
In my humble view, since time is of essence, a petitioner who is diligent and eager to have his petition urgently determined by filing an application for the issuance of Form TF007 for pre-hearing session to commence ought not in law and equity to be penalized because the application was brought prematurely. The intention of the legislature must be gathered from the wordings of paragraphs 18(1) to (13) of the 1st Schedule to the Act supra. For instance, in Maxwell On the Interpretation of Statutes, 12th edition by P.St. J. Langan page 309 the author wrote that:
“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 Statutes, generally the first day of the period will be excluded from the reckoning, and consequently the last day will be included.”
See Re North, ex P. Hasluck (1895) 2 Q. B. 264 per Lord Esher M. R.
The power to direct the issuance of Form TF008 for the commencement of pre-hearing session vests on the Tribunal. Any application that is incompetent is usually struck out by a Court or Tribunal. See Nigerian Leather Works Ltd. vs. Voss (1977) NNLR 220; Ajayi vs. Odunsi (1959) 4 FSC 189; Shell BP vs. Onasanya (1976) 1 All NLR (Pt.1) 425 and Oloriode vs. Oyebi (1984) 5 SC 1.
Having without objection granted the application for pre-hearing session on 5th July, 2011 the Tribunal lacked the jurisdiction to somersault and set aside the order on the pre that the application was brought prematurely and to then dismiss the petition. The dismissal shut out the petitioner from the temple of justice so he may not be able to ventilate this grievance. I also allow this appeal and abide by all the orders made by my learned brother.
Appearances
E. E. Osim Esq.For Appellant
AND
B. Olusegun Esq.
Osasu Isibor Esq.
Julius O. IdiegeFor Respondent
