RAY APIE NANDI & ANOR V. JACOB OTU ENYIA & ORS
(2011)LCN/4793(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of September, 2011
CA/C/NAEA/186/2011
RATIO
ISSUE OF JURISDICTION: IMPORTANCE OF THE ISSUE OF JURISDICTION
It is trite that the issue of jurisdiction is crucial, fundamental and a threshold issue. It is the heartbeat of the adjudication process. Thus, a proceeding commenced or continued without jurisdiction is futility personified and failure dignified, because it is null and void ab initio. The matter must be initiated by due process of law and sustained therewith by the fulfillment of any condition precedent in relation thereto. Indeed, that is why the issue is capable of being raised at any stage of the proceeding and even on appeal, by either of the parties or suo motu by the Court. See Shola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506; Ogbebbor v. Danjuma (2003) 15 NWLR (Pt. 843) 403 and Elabanjo v. Dawodu (2006) 15 NWLR (Pt.1001) 76. Again, once the issue crops up, it must be addressed at the earliest opportunity and disposed of timeously. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
LIMITATION LAW: POSITION OF THE LAW ON THE FUNCTION OF LIMITATION LAW
Limitation law is not strange or unusual in our body of laws. Indeed, limitation legislations prescribe limitational durations or periods for different types or categories of cases. Thus, invariably, certain classes of cases cannot be brought after the expiration of the time fixed after the accrual of the cause of action. Electoral laws advocate expeditious adjudication of election petition and mostly without condoning delay or tardiness of whatever sort. All these more are geared towards ensuring that the electorates and the contestants are not left on the lurch or tenterhooks for too long, regarding the ascertainment of the outcome of the election in which they participated by voting for their candidates. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF PARAGRAPH 18(1) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010 (AS AMENDED) AS TO WHEN A PETITIONER MUST APPLY FOR THE ISSUANCE OF PRE-HEARING NOTICE
Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 as amended states: “18(1) Within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filling 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 TF 007”. To my mind and understanding, the operative words in this provision are: “within”, “days”, “after” and “shall”. The word “shall” therein is imperative or mandatory and not merely permissive. The word “within” when it is used as a preposition means, inside the limits of something such as period or place, before a particular period of time has passed or during a particular period of time. In Ogbebor v. Danjuma (2003) 15 NWLR (Pt. 843) 403/432 Augie, JCA enunciated thus: “To my mind, … when used relative word “within” has been defined variously as meaning any time before; at or before; at the end of; before the expiration of; not beyond, not exceeding, and not later than…” The word “day” denotes a period of twenty four hours or part thereof. For instance we tend to ask: how long is your working day or say that the school day ends at 1.00 pm. See Black’s Law Dictionary 8th Edition, P. 422. The word “after” indicates something which comes later in relation to a particular point in time, space and so on. It further denotes capability of commencement beyond a specific point in time or place. In the instant case, there is no dispute whatsoever among the parties that the appellants were served with the respondents’ replies on Sunday, the 19th day of June, 2011. Furthermore, it is common ground among the parties that the application in question, which gave rise to the instant appeal was filed by the appellants on 27th June, 2011. However, the strong contention centered squarely on whether Sunday should be included or excluded in the computation of the number of days prescribed by Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 as amended, for the purpose of an application for the issuance of pre-hearing notice. It is a golden cum cardinal principle of interpretation that where in their plain, literal, ordinary grammatical meaning, the wordings of a provision in a statute are clear and unambiguous, effect must be given to them without the need of having recourse to any internal or external aid of construction. The Courts have the bounden duty of interpreting the words used by the lawmakers in the manner in which they are used, without adding or subtracting therefrom. It could be seen that Paragraph 18(1) (supra) which is under consideration, did say seven days after the filing and service of replies. It provides that an application shall be made for the issuance of pre-hearing notice as in Form TF 007. Thus, to my mind, the instant case is one of such instances when there is no need for a fallback position, such as reference or recourse being had to aids of construction, statutory or otherwise. See Attorney-General. Ondo State v. Attorney- General Ekiti State (2001) 17 NWLR (PT.743) 706. In some recent decisions of this Court, the position has been restated that by virtue of Section 1 of the Interpretation Act, the said Act shall apply to provisions of any enactment, except in so far as the contrary intention appears in the statutory provision under consideration. Furthermore, it should be noted that under the present dispensation, it is most likely that invocation of Interpretation Act is with regards to computation of time for the presentation of an election petition and not otherwise. Let me restate, that an election proceeding is not an ordinary run of the mill proceeding in which a party can decide to procrastinate. Procrastination as we all know is a thief of time. An election matter is governed by the Constitution, Electoral Act and other subsidiary legislations made thereunder. Without prevarications, it is the norm and expectation that an election matter must be disposed of timeously and with utmost urgency, because of its peculiar nature. Thus, time is of the essence in election matters. Indeed, election petitions are expected to be bereft of the procedural impediments that are likely to cause avoidable delays in the determination of the substantive dispute. See Akpokinivo v. Agas (2004) 10 NWLR (Pt.881) 394. At all times and without exception, in the determination of an election petition, recourse and or regard must be had to the need for urgency in respect thereof. Regarding the arguments by the learned counsel for the appellants on the applicability of the Federal High Court (Civil Procedure) Rules to the determination of election petitions, it is to be noted that such application is not in the nature of a blank cheque. Hence, by virtue of Paragraph 54 of the First Schedule to the Electoral Act, 2010 as amended, the Federal High Court (Civil Procedure) Rules can only be invoked in relation to an election petition, only to the extent that the electoral law expressly allows or permits. Thus, the rules shall be applied with such modifications as may be necessary to render them applicable having regard to the provisions of the Act. See Yusufu v. Obasanjo (2003) 16 NWLR (Pt.847) 554 where the Supreme Court construed Paragraph 50 of the First schedule to the Electoral Act, 2002, which is in pari materia with paragraph 54 of the First Schedule to the Electoral Act, 2010 as amended. In the instant case, the respondents’ replies were served on the appellants on 19th June, 2011. The appellants brought their application by way of motion on notice on 27th June, 2011. The pre-condition under Paragraph 18(1) of the First schedule (supra) is that this must be done within seven days. It is to be noted, that the said appellants application was clearly and glaringly dated thus, “DATED THE 23RD DAY OF JUNE, 2011.” Yet the appellants waited up till 27th June, 2011 when the same was filed. I am of the firm viewpoint, that compliance with the statutory provisions of seven days after the filing and service of the petitioner’s reply on the respondent or seven days after the filing and service of the respondent’s reply as the case may be, within which petitioner is mandatorily obliged to apply for the issuance of pre-hearing notice for the commencement of the pre-hearing session and scheduling, is a fundamental requirement or pre-condition. If it is breached, it becomes fatal an incurable. Consequently, failure to comply with the said statutory provision is dangerous and hazardous as the tribunal or court would be deprived of the necessary jurisdiction to continue to entertain the petition. Having obtained guidance from decisions of this Court, I have construed the provision of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 as amended. I found the said provision to be plain, clear, straightforward and unambiguous. With this state of affairs, I do not see the need to look elsewhere in a bid to construe the same. I therefore find no difficulty in arriving at the conclusion that the seven days allowed by the electoral law for the application in question admits of no other consideration than the one given to it by the election tribunal in so far as the instant case is concerned. Having been served on 19th June, 2011, the last day for the requisite application by necessary intendment of paragraph 18(1) (supra) is 26th June, 2011. The application herein was filed on 27th June, 2011. It was thus filed out of time having been filed on the eighth day after the service of respondents’ replies on the appellants. It was a day too late and with virulent resultant fatal consequences. It should be noted, that it is not the duration of delay but the designed effect that matters most. It is trite that a trial before a court or tribunal, however well conducted is to no avail if the court or tribunal has become divested of its jurisdiction. On the whole and in the final analysis, it is my humble viewpoint that the petition has been caught or infected by the bug of limitation law, which has been embedded in paragraph 18(1) of the First schedule (supra) and it is thus statute barred. The election tribunal in this case effectively lacked competence to continue to entertain, talk less of further determining the appellants’ petition. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. RAY APIE NANDI
2. ACTION CONGRESS OF NIGERIA Appellant(s)
AND
1. JACOB OUT ENYIA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE RESIDENT ELECTORAL COMMISSIONER CROSS RIVER STATE Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: (Delivering the Leading Judgment): This appeal is against the ruling of the National and State Houses of Assembly Election Tribunal (hereinafter referred to as the election tribunal) holden at Calabar. The ruling in question was delivered on 14th July, 2011.
On 26th April, 2011 the 2nd and 3rd respondents herein conducted election into the Cross River State House of Assembly for the Boki II State Constituency. The 1st appellant and 1st respondent among others were candidates at the said election. They were sponsored by their respective political parties. Upon the close of poll, the 2nd respondent, declared the 1st respondent as the winner of the said election. He was returned as having been duly elected.
Both the 1st and 2nd appellants were dissatisfied with the said declaration and return of the 1st respondent. They jointly filed a petition and challenged the same before the election tribunal. The various replies filed by the respondents were duly served on the appellants on 19th June, 2011. Thereafter and on 27th June, 2011 to be precise the appellants filed an application for the issuance of pre-hearing notice. The 1st respondent opposed the application on the ground that it was filed out of time. The election tribunal agreed with him in its ruling delivered on 14th July, 2011. The election tribunal invoked Paragraph 18(4) of the First schedule to the Electoral Act, 2010 as amended and accordingly dismissed the petition.
The appellants were aggrieved therewith and hence the instant appeal which was filed on 29th July, 2011. It contained seven grounds of appeal. Parties herein duly filed and exchanged their respective briefs of argument. Two issues were formulated in the appellants’ brief for the determination of this appeal. They are:
“i. Whether on the authority of Ikoro v. Izunaso (2009) 4 NWLR (Pt. 1130) 45 the lower tribunal was right in holding that the application for the issuance of pre-hearing notice was filed out of time? (Ground 1)
2. Whether the petitioners were out of time in filing the application for the issuance of pre-hearing notice even if time is computed from Sunday 19th June, 2011, being the date of service of the respondents’ replies on the petitioners? (Grounds 3, 4, 5, 6, & 7).
According to the learned counsel for the 1st respondent, only one issue calls for determination in this appeal. The sole issue goes thus:
“Whether from the facts of surrounding the application of the appellants, their application for Issuance of pre-hearing session Notice filed within seven days from 19/6/2011 when pleadings were deemed closed.” (sic).
Both the 2nd and 3rd respondents more or less adopted the issues formulated by the appellants.
Learned counsel for the appellants submitted on the first issue, that the election tribunal erred when it held that the application for the issuance of pre-hearing notice was filed out of time and thereby rendered it incompetent. For this submission and the point regarding when pleadings are deemed to have been closed in an election petition, he placed reliance on the case of Ikoro v. Izunaso (2009) 4 NWLR (Pt. 1130) 45. Counsel also referred to Paragraph 18(1) of the First schedule to the Electoral Act, 2010 as amended. He maintained that the fact that the appellants were served with replies filed by the respondents on 19th June, 2011 was conceded by all the parties. It was thus his submission “that going by the authority to Ikoro V. Izunaso (supra), time of the filing of the application for issuance of pre-hearing notice started to run on 24th June, 2011 and ended on 30th June, 2011.” We were then urged to hold that the appellants’ application which was filed on 27th June, 2011 was filed within time and that this issue be resolved in favour of the appellants.
On the second issue, learned counsel for the appellants argued that section 285(5) of the1999 Constitution of the Federal Republic of Nigeria, has now made the time for filing of election petitions a constitutional one, while Section 318 (4) of the Constitution made the Interpretation Act, applicable to construction of provisions of the Constitution. Reference was by the learned counsel to section 15(2)(a) and (b); (3) and (15) of the Interpretation Act, 2004, Laws of the Federation of Nigeria. Similar reference was also made to order 48 Rule (1) (a) and (3) of the Federal High court (Civil Procedure) Rules. It was further submitted that in the light of the above, “all judicial authorities to the effect that the Electoral Act is autonomous and does not admit of extraneous aids for its interpretation must now give way to S.318 (4) of the Constitution which is the grundnorm”. Reference was made to Yusufu v. Buhari (2003) 16 NWLR (Pt. 847) 554 with the submission that time for the filing of the application for the issuance of pre – hearing notice would consequently begin to run from 21st June, 2011. The argument was also canvassed by appellants’ counsel, that by virtue of S.4 of the Public Holidays Act, 2004, “no person shall be compelled to do any act on a day appointed as a public holiday”, excepting that a person can do an act on a Sunday, provided that he consented to the doing of the act in question. He cited the case of Anie v. Uzorka (1993) 8 NWLR (Pt.309) 1. It was his further submission, “that even if the registry of the tribunal was opened on Sundays, the appellants could not have been compelled to file an application on Sunday, 26th June, 2011.” Additionally that the election tribunal, “erroneously relied on the authority of Sirika v. Bello (2011) 2 NWLR (Pt.1232) 452 to exclude public holidays in the computation.” That the applicable law to the instant case is Section 15(3) of the Interpretation Act.
Learned counsel for the 1st respondent in his response to the submissions made above, contended that the set of facts in the decision of this court in Ikoro v. Isunazo (supra) relied upon by the appellants, is distinguishable from the ones in the instant case and thus inapplicable thereto. Counsel maintained that the appellants’ application by way of motion on notice for the issuance of pre hearing session notice, “was filed out of time” when consideration is given to the time or period when pleadings closed in the instant case. We were urged to so find and hold.
Learned counsel for the 2nd and 3rd respondents canvassed similar arguments to the ones advanced in the 1st respondent’s brief. He placed reliance on Sirika v. Bello (supra) with the submission that Sunday should be reckoned with in computation of time in election petition matters. Furthermore, that the recourse had by the appellants to the Federal High Court Rules, is of no moment, more so when the jurisdiction of an election tribunal to deal with election petition is of a very special nature which is different from the one in an ordinary civil case.
It is to be noted, that appellants’ reply brief responded to the preliminary objection raised by the 1st respondent to the competence and hearing of this appeal. On the preliminary objection raised by the 1st respondent herein and arguments canvassed thereon, without dissipating much needed energy and to avoid waste of time, having given due consideration to the said objection, I am of the firm viewpoint that it is unsustainable and it is accordingly discountenanced and dismissed by me.
It is trite that the issue of jurisdiction is crucial, fundamental and a threshold issue. It is the heartbeat of the adjudication process. Thus, a proceeding commenced or continued without jurisdiction is futility personified and failure dignified, because it is null and void ab initio. The matter must be initiated by due process of law and sustained therewith by the fulfillment of any condition precedent in relation thereto. Indeed, that is why the issue is capable of being raised at any stage of the proceeding and even on appeal, by either of the parties or suo motu by the Court. See Shola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506; Ogbebbor v. Danjuma (2003) 15 NWLR (Pt. 843) 403 and Elabanjo v. Dawodu (2006) 15 NWLR (Pt.1001) 76. Again, once the issue crops up, it must be addressed at the earliest opportunity and disposed of timeously.
In the instant case, the central or core issue is simply whether the appellants’ application for issuance of pre-hearing notices was made within or outside the time prescribed by the relevant and applicable statutory provisions. Learned counsel for the parties duly examined the two sides of the divide – for and against on the said core issue.
Limitation law is not strange or unusual in our body of laws. Indeed, limitation legislations prescribe limitational durations or periods for different types or categories of cases. Thus, invariably, certain classes of cases cannot be brought after the expiration of the time fixed after the accrual of the cause of action. Electoral laws advocate expeditious adjudication of election petition and mostly without condoning delay or tardiness of whatever sort. All these more are geared towards ensuring that the electorates and the contestants are not left on the lurch or tenterhooks for too long, regarding the ascertainment of the outcome of the election in which they participated by voting for their candidates.
Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 as amended states:
“18(1) Within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filling 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 TF 007”.
To my mind and understanding, the operative words in this provision are: “within”, “days”, “after” and “shall”.
The word “shall” therein is imperative or mandatory and not merely permissive. The word “within” when it is used as a preposition means, inside the limits of something such as period or place, before a particular period of time has passed or during a particular period of time. In Ogbebor v. Danjuma (2003) 15 NWLR (Pt. 843) 403/432 Augie, JCA enunciated thus:
“To my mind, … when used relative word “within” has been defined variously as meaning any time before; at or before; at the end of; before the expiration of; not beyond, not exceeding, and not later than…”
The word “day” denotes a period of twenty four hours or part thereof. For instance we tend to ask: how long is your working day or say that the school day ends at 1.00 pm. See Black’s Law Dictionary 8th Edition, P. 422. The word “after” indicates something which comes later in relation to a particular point in time, space and so on. It further denotes capability of commencement beyond a specific point in time or place.
In the instant case, there is no dispute whatsoever among the parties that the appellants were served with the respondents’ replies on Sunday, the 19th day of June, 2011. Furthermore, it is common ground among the parties that the application in question, which gave rise to the instant appeal was filed by the appellants on 27th June, 2011. However, the strong contention centered squarely on whether Sunday should be included or excluded in the computation of the number of days prescribed by Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 as amended, for the purpose of an application for the issuance of pre-hearing notice.
It is a golden cum cardinal principle of interpretation that where in their plain, literal, ordinary grammatical meaning, the wordings of a provision in a statute are clear and unambiguous, effect must be given to them without the need of having recourse to any internal or external aid of construction. The Courts have the bounden duty of interpreting the words used by the lawmakers in the manner in which they are used, without adding or subtracting therefrom. It could be seen that Paragraph 18(1) (supra) which is under consideration, did say seven days after the filing and service of replies. It provides that an application shall be made for the issuance of pre-hearing notice as in Form TF 007. Thus, to my mind, the instant case is one of such instances when there is no need for a fallback position, such as reference or recourse being had to aids of construction, statutory or otherwise. See Attorney-General. Ondo State v. Attorney- General Ekiti State (2001) 17 NWLR (PT.743) 706.
In some recent decisions of this Court, the position has been restated that by virtue of Section 1 of the Interpretation Act, the said Act shall apply to provisions of any enactment, except in so far as the contrary intention appears in the statutory provision under consideration. Furthermore, it should be noted that under the present dispensation, it is most likely that invocation of Interpretation Act is with regards to computation of time for the presentation of an election petition and not otherwise.
Let me restate, that an election proceeding is not an ordinary run of the mill proceeding in which a party can decide to procrastinate. Procrastination as we all know is a thief of time. An election matter is governed by the Constitution, Electoral Act and other subsidiary legislations made thereunder. Without prevarications, it is the norm and expectation that an election matter must be disposed of timeously and with utmost urgency, because of its peculiar nature. Thus, time is of the essence in election matters. Indeed, election petitions are expected to be bereft of the procedural impediments that are likely to cause avoidable delays in the determination of the substantive dispute. See Akpokinivo v. Agas (2004) 10 NWLR (Pt.881) 394. At all times and without exception, in the determination of an election petition, recourse and or regard must be had to the need for urgency in respect thereof.
Regarding the arguments by the learned counsel for the appellants on the applicability of the Federal High Court (Civil Procedure) Rules to the determination of election petitions, it is to be noted that such application is not in the nature of a blank cheque. Hence, by virtue of Paragraph 54 of the First Schedule to the Electoral Act, 2010 as amended, the Federal High Court (Civil Procedure) Rules can only be invoked in relation to an election petition, only to the extent that the electoral law expressly allows or permits. Thus, the rules shall be applied with such modifications as may be necessary to render them applicable having regard to the provisions of the Act. See Yusufu v. Obasanjo (2003) 16 NWLR (Pt.847) 554 where the Supreme Court construed Paragraph 50 of the First schedule to the Electoral Act, 2002, which is in pari materia with paragraph 54 of the First Schedule to the Electoral Act, 2010 as amended.
In the instant case, the respondents’ replies were served on the appellants on 19th June, 2011. The appellants brought their application by way of motion on notice on 27th June, 2011. The pre-condition under Paragraph 18(1) of the First schedule (supra) is that this must be done within seven days. It is to be noted, that the said appellants application was clearly and glaringly dated thus, “DATED THE 23RD DAY OF JUNE, 2011.”
Yet the appellants waited up till 27th June, 2011 when the same was filed.
I am of the firm viewpoint, that compliance with the statutory provisions of seven days after the filing and service of the petitioner’s reply on the respondent or seven days after the filing and service of the respondent’s reply as the case may be, within which petitioner is mandatorily obliged to apply for the issuance of pre-hearing notice for the commencement of the pre-hearing session and scheduling, is a fundamental requirement or pre-condition. If it is breached, it becomes fatal an incurable. Consequently, failure to comply with the said statutory provision is dangerous and hazardous as the tribunal or court would be deprived of the necessary jurisdiction to continue to entertain the petition.
Having obtained guidance from decisions of this Court, I have construed the provision of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 as amended. I found the said provision to be plain, clear, straightforward and unambiguous. With this state of affairs, I do not see the need to look elsewhere in a bid to construe the same. I therefore find no difficulty in arriving at the conclusion that the seven days allowed by the electoral law for the application in question admits of no other consideration than the one given to it by the election tribunal in so far as the instant case is concerned. Having been served on 19th June, 2011, the last day for the requisite application by necessary intendment of paragraph 18(1) (supra) is 26th June, 2011. The application herein was filed on 27th June, 2011. It was thus filed out of time having been filed on the eighth day after the service of respondents’ replies on the appellants. It was a day too late and with virulent resultant fatal consequences. It should be noted, that it is not the duration of delay but the designed effect that matters most. It is trite that a trial before a court or tribunal, however well conducted is to no avail if the court or tribunal has become divested of its jurisdiction.
On the whole and in the final analysis, it is my humble viewpoint that the petition has been caught or infected by the bug of limitation law, which has been embedded in paragraph 18(1) of the First schedule (supra) and it is thus statute barred. The election tribunal in this case effectively lacked competence to continue to entertain, talk less of further determining the appellants’ petition.
In the premise, I resolve the two issues raised and argued in this appeal by the learned counsel for the parties against the appellants and find that the appeal lacks merit. It is accordingly dismissed with costs which I assessed at N40,000.00 in favour of the two sets of respondents respectively.
JA’AFARU MIKA’ILU J.C.A.: I agree.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Massoud Abdulrahman Oredola, JCA gave me the opportunity of reading in draft form the lead judgment just delivered. I agree with the consideration and resolution of the issues therein and the conclusion that the appeal lacks merit. I dismiss the appeal with costs as assessed in the lead judgment.
Appearances
Mathew Ojua Esq;
Joe Oloko Esq.,
J.K. Omang Esq.,
Ejike Ume Esq.,For Appellant
AND
Julius Idiege Esq
E.O. Okonedo Esq.,For Respondent
