PRINCE EDOZIE O. AROH v. HON. CHARLES ODEDO & ORS.
(2011)LCN/4777(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of August, 2011
CA/E/EPT/01/2011
RATIO
COMPUTATION OF TIME: WHETHER IN THE COMPUTATION OF TIME FOR FILING OF AN ELECTION PETITION, THE DATE THE RESULT OF THE ELECTION WAS DECLARED MUST BE INCLUDED
Now Section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999 (2nd Alteration Act) made provision for a time span within which an aggrieved party in an election may file a petition. It reads thus:- “An election petition shall be filed within 21 days after the date of the declaration of result of the elections.” A similar provision is also found in Section 134 (1) of the Electoral Act 2010 which provides that:- “An Election petition shall be filed within 21 days after the date of the declaration of results of the election” The above provisions are a clear departure from what it was in the Electoral Act 2002 and Electoral Act 2006 under which most of the authorities in the law reports including those relied on by the respondents on the computation of time in election petitions were enunciated. Under the aforesaid statutes, the computation of time for filing of a petition was calculated to be inclusive of the date of such declaration. See OGBEBOR VS DANJUMA (2007) 2 EPR 564; KUPOLATI VS OKE supra and DARAMOLA VS AREBISALA supra. For purposes of clarity, I herein below reproduce the relevant Sections of the Electoral Act 2002. It reads:- S.132 “An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared. PER ABDU ABOKI, J.C.A.
INTERPRETATION OF STATUTE: WHETHER THE PROVISIONS OF SECTION 15 (4) AND (5) OF THE INTERPRETATION ACT ARE APPLICABLE TO THE COMPUTATION TIME FOR FILING OF BRIEFS IN ELECTION MATTERS
Where the issue arose as to the applicability of Section 15 (4) and (5) of the Interpretation Act to the computation time for filing of briefs in election matter. This court per Onnoghen JCA (as he then was) held that the Interpretation Act was applicable in the computation of time.) His Lordship succinctly put it as follows at page 21 of the report:- “I have gone through the Electoral Act 2002 and the first Schedule thereto and the Practice Direction N0 2 of 2003 that was made there under, and have seen no provision whatsoever, which stipulates that in interpreting the provisions of the said Act or rules made there under the provisions of interpretation Act shall not apply. I am of the firm view that only a clear provision to that effect will render the interpretation Act, particularly Section 15 (4) and (5) thereof inapplicable. See also WAKU VS ADAGBA (2006) ALL FWLR (PT 309) 1518 and AWUSE VS ODILI Q004) 8 NWLR (PT 876) 481. PER ABDU ABOKI, J.C.A.
COMPUTATION OF TIME: WHETHER PUBLIC HOLIDAYS ARE RELEVANT IN THE COMPUTATION OF TIME FOR FILING AN ELECTION PETITION
It is now established that in computation of time within which to file an election petition, public holidays are relevant when the last day of the time limited for filing falls on a public holiday. Thus, if the last day of the period prescribed for filing election petition falls on a public holiday, then the period will be taken as continuing till the next day following which is not a public holiday. This is the import of section 15(2) (b) and (3) of the Interpretation Act. See IYIRIIIARO VS USOH. (1999) 4 NWLR (PT.597) 41; WAKU VS ADAGBA (2006) ALL FWLR 1518 and YISA VS ORZUA (2006) ALL FWLR (PT 311) 1942 at 1949-1950. PER ABDU ABOKI, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
PRINCE EDOZIE O. AROH Appellant(s)
AND
1. HON. CHARLES ODEDO
2. ACTION CONGRESS OF NIGERIA
3. THE RETURNING OFFICER, IDEMILI NORTH/SOUTH FEDERAL CONSTITUENCY
4. THE ELECTORAL OFFICER, IDEMILI NORTH LGA (INEC)
5. THE ELECTORAL OFFICER, IDEMILI SOUTH LGA (INEC)
6. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): The appeal under consideration here is against the Ruling of the National Assembly Election Tribunal, Holden in Awka, Anambra State, (Coram U. B. Bwala J. Chairman, T. I. Cocodia J. member and M. A. Adeigbe J. member) delivered on the 20th day of June 2011, whereby the petition filed by the appellant in the said tribunal was struck out for being incompetent.
The appellant in this appeal had on the Platform of the All Progressive Grand Alliance (APGA) contested in the election to the Idemili North/South Federal Constituency held on the 9/4/2011. The result of the said election was declared on the 10/4/2011 wherein the 1st Respondent in this appeal was declared the winner of the said election. Being aggrieved with the result as declared, the appellant then filed a petition at the National Assembly Election petition tribunal Awka on the 3/5/2011, where in paragraph 13 he prayed for the following reliefs:-
13.Wherefore the petitioner prays the Honourable Tribunal for the following reliefs:-
(A) A declaration of the tribunal that the 1st respondent did not secure majority of the lawfully valid votes cast at the election held on 9/4/11 to elect the member representing Idemili North/South Federal Constituency at the National Assembly.
(B) A further declaration of the Honourable Tribunal that the petitioner was who had secured the highest number of valid votes cast in the election ie 9425 votes to the 1st Respondents 9266 votes and therefore is the winner of the said election.
(C) A declaration of (sic) Honourable Tribunal that in the circumstances, the petitioner stands elected as the winner of the aforesaid election and a further order of court that the 6th respondent (INEC) issue the certificate of return in favour of the petitioner in the circumstances.”
In reaction thereto, the Action Congress of Nigeria who was the 2nd Respondent to the petition at the lower tribunal filed a motion on notice on the 6/6/11 wherein the order of the tribunal was sought to strike out the petition for being incompetent on the ground that it was filed out of time.
The said motion was supported by a 9 paragraph affidavit to which is attached a document tagged Exhibit ‘A’, and also a written address, (page 79-87 of record). The petitioner at the lower tribunal also reacted by filing a 9 paragraph counter affidavit and a written address in support, (see page 88 to 94 of record).
At the resumed hearing of the tribunal on 20/6/11. It was recorded as follows:-
COURT:- “Parties in this case are asked to address us whether we have jurisdiction to entertain this petition vis-a-vis the date of declaration of the results of the election and the date the petition was filed?”
Counsel for the parties duly made their submissions after which the tribunal gave a short ruling which I herein below reproduce in extensor.
RULING:-
“The petition was filed on 03-05-2011. Declaration of the results of the election held on 09-04-2011 was made on 10-04-2011. Section 285 (5) of the constitution, Section 134 of the Electoral Act all allow petition to be filed within 21 days of the declaration of the result of an election. In the instant petition declaration of the result of the petition was on 10-4-2011. We have considered all arguments of brilliant counsel before us. Counting from 10-4-2011 to 03-05-2011 gives 23 days. The petition was therefore filed 3 days outside time. We rule that the petition is incompetent before us being filed outside the statutory 21 days so we lack jurisdiction to entertain it. We accordingly strike out the petition as being incompetent before us.”
The Petitioner (hereinafter called the appellant, dissatisfied with the said ruling appealed to this court vide a notice of appeal containing one ground of appeal and dated and filed on 21/6/11. The said notice and grounds of appeal was with the leave of this court amended on the 3/8/2011.
Briefs of argument were in accordance with the relevant rules of this court duly filed and exchanged and at the hearing of the appeal on 9/8/2011 the parties duly adopted and relied on their respective briefs of argument and replies.
The appellant’s amended brief of argument dated 29/7/11 and filed on 3/8/11 deemed properly filed on 9/8/11 was settled by Chuma Oguejiofor. The 1st Respondent’s brief of argument dated 4/8/11 and filed on 9/8/2011 was settled by Chief (Mrs) AJ. Offiah SAN.
The 2nd Respondent’s brief of argument dated 3/8/11 and filed on 4/8/11 was settled by Godwin Onwusi (Esq).
The 3rd to 6th Respondents brief of argument dated and filed on 18/7/11 was settled by Chief P.M.B. Onyia.
In the appellant’s brief of argument, one sole issue was raised for determination to wit:-
“Whether the trial tribunal was right in striking out the petitioner’s petition on the ground that same was filed out of time ie 23 days after the Declaration of result and outside the 21 days prescribed in the Electoral Act 2010 as amended.”
For the 1st Respondent as per his brief of argument, the only issue for determination is:-
“Whether the judgment of the tribunal was valid vis-a-vis the provisions of the law guiding the filing of election petitions.”
The 2nd Respondent in her brief of argument also distilled one issue for determination as follows:-
“Whether the tribunal below was right in not excluding Sunday 1st May and Monday 2nd May 2011 in computing the time for the Appellant to file his petition.”
The 3rd to 6th Respondents in their own brief of argument raised one issue for determination thus:-
“Whether the lower tribunal was wrong in striking out the petition as statute barred.”
Except for mode of couching, all the parties raised similar issue for determination in their respective briefs of argument. That being the scenario, I will adopt the issue as couched in the appellant’s brief in the consideration of this appeal.
On the said sole issue, that is whether the learned trial tribunal was right in striking out the petitioners petition on the ground that the same was filed out of time ie 23 days after the Declaration of results and outside the 21 days prescribed in the Electoral Act 2011 as amended. Chuma Oguejiofor, of counsel for the appellant in his brief of argument referred to Section 134(1) (i) of the Electoral Act 2010 as amended which provides that an election petition shall be filed within 21 days after the date of the declaration of the results of the election. He added that it is not in contention between the parties or the lower tribunal that the result of the election was declared on 10/4/2011, and reckoning2l days from the 11/4/11, the last day fell on Sunday 1/5/11 which is a public holiday. He further stated that Monday 2/5/11 was declared public Holiday by the federal government to observe workers day, so on Tuesday 3/5/11 the appellant filed his petition which clearly was in order because Sunday 1/5/11 and Monday 2/5/11 were public Holiday during which by law the petitioner is excused from filing the petition.
Learned counsel also referred to the Public Holidays Act, L.F.N. 2004 particularly Sections 1, and Section 2 (2) as well as the schedule thereof for the days that constitutes public Holidays when no one should be compelled to do any act which he will not be compellable to do on a Sunday. He also cited in support the following cases. KANGAMA VS NEC (1993) 3 NWLR (PT 284) 681; BALOGUN VS ODUMOSU (1999) 2 NWLR (PT.592) s90 and SALIU VS ADESANYA (1999) 2 NWLR (PT.592) 533.
Learned counsel then concluded that the appellant properly filed his petition on 3/5/l1 1 since the last day for the filing of petition fell on a Sunday 1-5-2011 and the next day following was declared a public Holiday by the federal government for the commemoration of workers day. He then urged the court to set aside the ruling of the lower tribunal. For the 1st Respondent Chief A.J Offiah Senior counsel, in the brief of argument referred to Section 285(5) of the 1999 constitution and Section 134(1) (i) of the Electoral Act 2010 as amended wherein it is provided that:-
“An election petition shall be filed within 21 days after the declaration of result of the election.”
Learned Senior counsel added that the operational words in both provisions is SHALL which the supreme court in ODEDO V INEC (2008) 17 NWLR (PT.1117) 554 held that it connotes a mandate, obligation and command. It is therefore not permissive or subject to the fluctuating mood of parties or circumstance.
She further cited the cases of AYUA VS ADASU (1992) 3 NWLR (PT.231) 598; OBI VS MBAKWE (1984) 1 SCNLR 192 and NWOBODO VS ONOH (1984) 1 SCNLR 1 to contend that the wordings of a statute relevant to election petition may be strict but if they are unambiguous as to what it directs, it must be complied with.
Learned Senior counsel also quoted copiously from the Dictum of C. C. Nweze JCA in KUPOLATI v. OKE (2009) ALL FWLR (PT486) 1858 and DARAMOLA VS ARIBISALA (2009) ALL FWLR (PT496) 1965 where the provisions of Section 141 of the Electoral Act 2006 which had a similar provision with the current Section 134(1) of the Electoral Act 2010 as amended was exhaustively addressed and she argued further that in interpreting the aforesaid Sections there is no need to have recourse to any other statute and urge the court to discountenance the cases of KANGAMA VS NEC. supra and BALOGUN VS ODUMOSU supra relied on the appellant’s counsel because they are distinguishable because the decisions were not based on the Electoral Act 2006 or 2010, neither was the issue of computation of time canvassed or resolved in the cases. Learned Senior counsel also referred to Section I of the Interpretation Act which provides that the Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in the act or enactment in question. She contended that Election petitions are sui generic and rather unique and it is because of the speedy commencement and disposal of Election matters that provision was made in paragraph 26(2) that:-
“The hearing may be continued on a Sunday or on a public Holiday if circumstances dictates.” Further reference was made to the unreported case of CPC VS GOODLUCK JONATHAN & ORS (sic) where the Court of Appeal Abuja dismissed an application which sought to strike out the petition before it on the ground that the same was filed on a Sunday ie a Dies non Juridicus based on the current Electoral Act.
Learned counsel then contended that under Section 1 of the 1st schedule to the Public Holidays Act, Sunday is not listed as one of the days to be observed as a public Holiday in the computation of time for the presentation of an election petition.
Next is the 2nd Respondent whose counsel G. N. Onwusi in the brief of argument made his submissions in tandem with that of the 1st Respondent. In addition he cited the cases of EMEKA VS EMORDI (2004) 16 NWLR (PT 900) 433 at 437 and EMESIN VS NWACHUKWU (1999) 3 NWLR (PT 596) 590 to submit that election petitions are Sui generis and one of the attributes is that time is of the essence and once time prescribed for doing an act elapses, the defect becomes fatally incurable. He referred to Section 10(2) of the Interpretation Act and Section 26 (2) of the Electoral Act 2010 (as Amended) to contend that both the public Holidays Act and the Interpretation Act apply in election matters to the extent that there is no contrary intention in the electoral Act but in this case Section 26(2) of the Electoral Act 2010 (as amended) provided a contrary intention with regard to the observance of public Holidays in Election petition cases in that it empowers the election tribunals to operate on Saturday and public Holidays which include Sundays. He also relied on the unreported case of CPC VS INEC & 42 OTHERS delivered on 14/7/2011. Where the Court of Appeal dismissed an application to strike out a petition on the ground that it was filed on a Sunday.
Learned counsel then submitted that the trial tribunal was right in not discountenancing 1st and 2nd May 2011 in computing the time for the petitioner to file his petition In their own brief of argument, P.M.B. Onyia of counsel submitted inter alia that, the lower tribunal was right in striking out the petition for being statute barred because there is no ambiguity as to the period prescribed under Section 285 (5) of the 1999 constitution for filing election petitions. Learned counsel, in this regard is of the strong view that to determine when the 21 days allowed by the law expired, the computation of time should start on the 10/4/2011 when the result of the election was declared and not from the 11/4/2011 as being contended by the appellant in which case the 21 days will expire on 30/4/2011 and not 1/5/2011 as the last day to file his petition.
He added that 30/4/11 is a Saturday and under the public Holidays Act, a Saturday is not a public Holiday as held in KANGAMA VS NEC (1993) 3 NWLR (PT 284) 681.
In further contention on the stance that the period of limitation starts to run from the day the cause of action arose, learned counsel referred to the following case:-
OWEI VS IGHIWI (2005) 1 SC (PT.11) 16; FADARE VS A.G. OYO STATE (1982) 4 SC; EBOIGBE VS N.N.P.C. (1994) 5 NWLR (PT 347) 649 at 659; KUPOLATI VS OKE supra; NPA PLC VS LOTUS PLASTICS LTD. (2005) 12 SC (PT 1) 19 and OZOR OCHIAGHA UGOCHUKWU VS OKECHUKWU SIMON NWOKE (UNREPORTED) APPEAL NO. CA/E/EPT/5A/2007.
In the alternative, learned counsel towed the line of the other respondents to submit that the petition was statute barred and not validly filed on 3/5/2011 notwithstanding the provisions of Section 15 (2) (b) of the Interpretation Act which is an inferior legislation to the 1999 constitution. He added that besides, section 15(2) (b) only presents a scenario where the office in which the act is to be performed is inaccessible or shut to the public on Sundays or public holidays as against the present case where the registry of the lower tribunal was open on Sundays and public holidays and in fact received two petitions for filing on the 2/5/2011.
He concluded that as the law stands, this court cannot assist the appellant as he is the architect of his own misfortune. The learned counsel for the appellant filed briefs in reply to that of the respective respondents wherein he addressed the legal issues as raised variously therein and this will be considered in due course.
Now Section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999 (2nd Alteration Act) made provision for a time span within which an aggrieved party in an election may file a petition. It reads thus:-
“An election petition shall be filed within 21 days after the date of the declaration of result of the elections.”
A similar provision is also found in Section 134 (1) of the Electoral Act 2010 which provides that:-
“An Election petition shall be filed within 21 days after the date of the declaration of results of the election”
The above provisions are a clear departure from what it was in the Electoral Act 2002 and Electoral Act 2006 under which most of the authorities in the law reports including those relied on by the respondents on the computation of time in election petitions were enunciated.
Under the aforesaid statutes, the computation of time for filing of a petition was calculated to be inclusive of the date of such declaration. See OGBEBOR VS DANJUMA (2007) 2 EPR 564; KUPOLATI VS OKE supra and DARAMOLA VS AREBISALA supra.
For purposes of clarity, I herein below reproduce the relevant Sections of the Electoral Act 2002. It reads:-
S.132 “An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.” (underling for emphasis)
To my mind the above provisions are clear and unambiguous to the effect that the legislature indeed intended the computation of time for the filing of an election petition to commence from the very day the result of the particular election was declared.
The same scenario of clearness and unambiguity can also be inferred from the provisions of Section 134 (1) of the Electoral Act 2010 which in clear departure from the old school introduced the word “after” to make it abundantly convincing that computation of time for filing of petitions shall commence after the date of the declaration of results of the elections and not from the date of the elections as hitherto was the case under the Electoral Act 2002 and Electoral Act 2006. It is the principle of interpretation that the maker of any law be it constitutional or otherwise does not use any words in vain. See TUKUR VS GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT.117) 517. It pleases the legislature under the new dispensation to, in their own wisdom use the word AFTER in the Electoral Act 2010 in an apparent bid to cure whatever mischief that might have been made manifest under the former statutes. This to my mind is no doubt progressive and borders on legislative dynamism aimed at the attainment of positive democratic principles. Now learned counsel for the 3rd to 6th Respondents had in the first part of his brief of argument contended strenuously that to determine the 21 days, the computation should start from the very date the result of the election was declared that is on the 10/4/2011 and not from the 11/4/2011 which is after the date of the declaration of the result as argued by the appellant.
I believe that the above analysis of the provisions of the Electoral Act 2010 vis a vis the Electoral Acts of 2002 and 2006 resolves the issue to the effect that under the current Act, computation of time shall commence after the date the result of the election is declared which in this case is the 1st April 2011. That brings us to the vexed issue in this appeal, which is whether in calculating the 21 days within which the Election petition ought to be filed after the declaration of the result of the election, Sundays and public Holidays ought to be inclusive. For the appellants, Sundays and public holidays should be excluded in the computation of the 21 days by virtue of the provisions of Section 1 5 of the interpretation Act and the Public Holidays Act, LFN 2004.
For the respondents, they have a common stance to the effect that Election petitions are sui generis and are not considered to be identical with other civil proceedings. Consequently, both the provisions of the constitution and the Electoral Act relating to time for filing of petition must to the exclusion of the interpretation Act be strictly adhered to, considering the urgency and time granted to the tribunals to dispose of petitions. Furthermore, the fact that the Registry of the lower tribunal was open on the 1/5/11 gives no room for the appellant to excuse his not filing his petition.
Dealing first of all with the status of the interpretation Act vis a vis the provisions of 285(5) of the 1999 constitution 2nd Alteration Act and Section 134(1) of the Electoral Act 2010. Section 1 of the interpretation Act provides thus:-
“This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question.”
The above provision is very clear and unambiguous and I have indeed perused Section 285(5) of the 1999 constitution 2nd Alteration Act 2010 and the Electoral Act 2010 with particular reference to Section 134(1) and the first schedule thereto and I could not find any provision whatsoever stipulating that in interpreting the aforementioned provisions, the Interpretation Act shall not apply, neither did the interpretation Act on its own exclude it’s application to them on the issue of computation of time to file an election petition. See ADEFEMI VS ABEGUNDE (2004) 15 NWLR (PT.895) 1. Where the issue arose as to the applicability of Section 15 (4) and (5) of the Interpretation Act to the computation time for filing of briefs in election matter. This court per Onnoghen JCA (as he then was) held that the Interpretation Act was applicable in the computation of time.) His Lordship succinctly put it as follows at page 21 of the report:-
“I have gone through the Electoral Act 2002 and the first Schedule thereto and the Practice Direction N0 2 of 2003 that was made there under, and have seen no provision whatsoever, which stipulates that in interpreting the provisions of the said Act or rules made there under the provisions of interpretation Act shall not apply. I am of the firm view that only a clear provision to that effect will render the interpretation Act, particularly Section 15 (4) and (5) thereof inapplicable.”
See also WAKU VS ADAGBA (2006) ALL FWLR (PT 309) 1518 and AWUSE VS ODILI (2004) 8 NWLR (PT 876) 481.
I must therefore emphasis here that the provisions of the Interpretation Act applies to all statutes and enactments except a contrary intention is expressly shown in such enactments or in the Interpretation Act itself. There is no such exclusionary provisions in the legislations under consideration in this case. Now to properly address the issue in contention, I herein below reproduce the provisions of Section 15 (1) to (5) of the Interpretation Act CAP 192 L.F.N. 1990:-
Section 15-(1) A reference in an enactment to the time of day is a reference to the time which is an hour in advance of Green which mean time.
(2) A reference in an enactment to a period of days shall be construed-
(a) where the period is reckoned from a particular event as excluding the day on which the event occurs.
(b) Where apart from this paragraph the last of the period is a holiday, as continuing until the end of the next following day which is not a public holiday.
(3) where by an enactment any act is authorized or required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.
(4) Where by an enactment any act is authorized or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period.
(5) In this Section, holiday means a day which is a Sunday or a public holiday.
By virtue of Section 15 2(a) and (b) and (3) above it seems to me that the act of computing the 21 days within which the appellant was to file his petition from 11/4/11 which is a day after the declaration of the result of the election is in order also bearing in mind the reading of Section 134(1) of the electoral Act 2010. The said 21 days expired on 1/5/2011 which is a Sunday and as such a holiday by virtue of Section 15(5) of the Interpretation Act. This automatically shifts the expiration of the period for filing to the next working day which incidentally was also declared a public holiday by the federal government to commemorate the workers day. It follows therefore that the 3/5/11 which is the next working day after the two preceding holidays will enure in the appellants favour as the last day for filing his petition and this he did which fact is not in dispute.
It is now established that in computation of time within which to file an election petition, public holidays are relevant when the last day of the time limited for filing falls on a public holiday. Thus, if the last day of the period prescribed for filing election petition falls on a public holiday, then the period will be taken as continuing till the next day following which is not a public holiday. This is the import of section 15(2) (b) and (3) of the Interpretation Act. See IYIRIIIARO VS USOH. (1999) 4 NWLR (PT.597) 41; WAKU VS ADAGBA (2006) ALL FWLR 1518 and YISA VS ORZUA (2006) ALL FWLR (PT 311) 1942 at 1949-1950.In this case the records show that the result of the election was declared on the 10/4/11 and the parties duly agreed to that. That period of 21 days allowed by Section 134 (1) of the Electoral Act 2010 for the appellant to file his petition started to run after the date of the declaration of result which is on the 11/4/2011. The 21 days allowed by the Act lapsed on Sunday 1/5/2011. By the provisions of Section 15 (5) of the Interpretation Act Sunday is a holiday and being the last day of the time allowed for the appellant to file his petition, it will be taken as continuing till the next following day which should be a working day but in this case, Monday 2/5/11 was also declared a public holiday by the federal government to commemorate the workers day. This further shifted the appellant’s time limitation for filing his petition to Tuesday 3/5/11 and he did file his petition on the said 3/5/11. Though the whole scenario may look tardy and even odd to have waited till the last minute but he acted under the protection of the law.
The learned counsel for all the respondents had argued strenuously that since the registry of the lower tribunal was open on that 1/5/2011 and in fact received two other petitions for filing that day, no excuse will avail the appellant to hide under the cover of a holiday.
I am strongly conscious of the fact that time is of the essence in trying of election petitions and the history and antecedents of election matters in this country in terms of delay to the detriment of an aggrieved or eventually victorious party has hardly been a palatable one to recall. Hence the society is now sensitive to any reoccurrence of the turbulent past. To this end registries of election tribunals open sometimes even on Sundays and public holidays for possible receipt and filing of processes from litigants who may find it convenient to do so. To my mind, this is borne out of expediency in support of the effort to accelerate the trial of election petition but it is by all means not a legal imperative that will necessitate sanctions against a party who did not exploit that opportunity. Section 133 (3) of the Electoral Act 2010 provides that:- The Election Tribunals shall-
(a) be constituted not later than 14 days before the election and
(b) When constituted, open their registries for business 7 days before the election.
This is the provision of the law but it is nowhere provided therein that such registries must open 24 hours a day and seven days a week including public holidays.
Furthermore paragraph 26 (2) of the first schedule provided that hearing of election petitions may be continued on a Saturday or on a public holiday if circumstances dictate.
The words are very clear showing that it is not compulsory for hearing to take place on a Saturday or public holiday except circumstance dictates and this to my mind means a combination of factors such as where it is obvious to the tribunal and the parties to the petition that the statutorily allotted time for hearing of and determination of the petition in question is dangerously close to lapsing. Another scenario is where the parties consent to attend court even though it is dies non juridicus that is to say on Sundays or public holidays.
On this issue of filing or even hearing of petitions on Sundays or public holidays this court per Salami P.C.A. painted a clearer picture in the recent case of C.P.C. VS INEC & 42 ORS. (Unreported judgment) delivered on 14/7/2011. At page 45 of the Ruling His lordship stated thus:-
“As for sitting or filing of processes like the petition which is now the bone of contention in this case, this Court, per Agube J.C.A.; had in KUPOLATI v. OKE (2009) ALL FWLR (PT.486) 1858 at 1916 to 1917 cited the portion of ANIE V UZORKA (supra) where the apex court held that any Judge has the jurisdiction to sit on a Sunday which is a dies non juridicus provided it does not compel the litigants who are members of the public or their counsel to appear in court.
By parity of reasoning; it has not been shown in this case that the petitioner or counsel on her behalf was compelled to file her petition on a Sunday so as to warrant the invalidation of the said petition. Indeed, the zeal to file his petition before the expiration of the time stipulated by the Electoral Act and the sacrifice by the staff of the Registry to work on a Sunday owing to the Sui generic nature of election petitions (which ought even to be commended), cannot attract the ire of the court. The Respondents have not complained that they have suffered any injustice nor can they be heard to so complain of any injustice occasioned them by the filing of the petitioner’s processes on a Sunday.
The hey days of technicalities are now over because the weight of judicial authorities has shifted from undue reliance on technicalities to doing substantial justice even-handedly to the parties.” Per Achike, J.S.C. (of blessed memory). See EGOLUM V OBASANJO & ORS. (1999) 7 NWLR (PT 611) 355 at 413; GENERAL MUHAMMADU BUHARI & ANOR V ALHAJI MOHAMMED DIKKO YUSUF & ANOR (2003) 14 NWLR (PT.841), 466 pages 498-499; per Uwaifo J.S.C.”
In the light of the above consideration I resolve the issue in favour of the appellant and therefore hold that this appeal has merit and is hereby allowed. The Ruling of the trial tribunal delivered on 20/4/11 striking out the appellant’s petition is hereby set-aside and the said appellant’s petition is hereby restored for hearing and determination on the merit.
I make no order as to costs.
AMINA A. AUGIE, J.C.A.: I agree.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I agree.
Appearances
Chuma Oguejiofor with I. E. OnuorahFor Appellant
AND
Chief A. J. Offiah (SAN) with O. N. Onwusi (Mrs) and C. Nwaubani (Mrs) for the 1st Respondent.
Ikechukwu Onuoma holding brief of G. Onwusi for 2nd Respondent
P.M.B. Onyia for 3rd to 6th RespondentsFor Respondent
