Ray Apie Nandi & Anor V. Jacob Otu Enyia & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.