Thomas Ugwu V. Hon. Ede Samuel Igwe & Ors (1999)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

This is an appeal against the decision of the Local Government Election Tribunal holden at Enugu on 8/2/99 nullifying the return of the appellant as the elected Councillor of Ubahu/Amankanu Ward in Nkanu East Local Government Area. The tribunal returned the petitioner/respondent as the duly elected councillor of the same ward.

In the nationwide Local Government election held on 5/12/98, the 1st respondent vied under the banner of Alliance for Democracy (AD). The appellant herein contested on the platform of All Peoples Party (APP). One Simeon Akaeme tried his chance under Peoples Democratic Party (PDP). The appellant was returned as the winner on 5/12/98 a Councilor elect of the stated ward. The 1st respondent was not satisfied with the return of the appellant. In short, he felt he had cause to cry foul. The 1st respondent filed his petition at the Election Tribunal Registry on 21/12/98.

Eze O. Eze Esq., learned counsel for the 2nd – 3rd respondents, filed a notice of preliminary objection dated 7/1/99 on 18/1/99. He raised objection to the jurisdiction of the tribunal as, according to him, the petition is incompetent having been filed out of time allowed by law. In the reply filed on behalf of the appellant on 21/1/99, paragraph 5 contains a challenge to the competence of the petition.

The preliminary objection was taken on 23/1/99. The tribunal overruled the objection in a rather hasty fashion. The tribunal stated that the period of 5/12/98, when the result was declared and 21/12/98 when petition was filed, is 13 days. The trial tribunal then went ahead to determine the petition in favour of the petitioner/respondent on 8/2/99. The stance of the tribunal precipitated this appeal.

The notice of appeal dated 11/2/99, was filed on 15/2/99. The notice was accompanied by two grounds of appeal which read as follows:-

“Ground 1 – error in law

The Election Tribunal erred in law when it went on to hear and determine this petition on its merits without regard to the fact that it had no jurisdiction so to do.

Particulars

(a) The Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 provides that an election petition shall be presented within fourteen days of the declaration of the election result.

(b) The election held (sic) and result therefore was declared on 5/12/98.

(c) The petition was filed on 21/12/98.

Ground 2.

The judgment of the tribunal is against the weight of evidence.”

The appellant’s brief, dated 1/3/99, was filed on 3/3/99. The brief, as well as Mr. B.O. Igwe’s oral argument in the appeal, only touched on ground 1. The 1st respondent’s brief, dated 4/3/99, was filed on 5/3/99. It also dealt principally with ground 1. It appears that ground 2, which complains about weight of evidence, is abandoned. It is accordingly struck out.

The issue for determination is not far fetched. Both sides are ad idem that the issue relates to whether the petition was filed within the time allowed by the law or not so as to determine the jurisdiction of the tribunal.

Mr. B.O. Igwe, learned counsel for the appellant, in arguing the appeal, referred to section 82 of the Local Government (Basic Constitutional & Transitional Provisions) Decree No. 36 of 1998 hereafter to be referred to as the Decree. The section stipulates that petition under the Decree shall be presented within fourteen days from the date on which the result of the election is declared. The result of the election in the ward was announced on 5/12/98. Fourteen days from 5/12/98 expired on 19/12/98. Petition was filed on 21/12/98. Learned counsel contended that the fact that 19/12/98 was a Saturday did not in any way alter the situation as Saturday is not designated a ‘holiday’; and even if it is a holiday it will still be taken into account in computing the statutory period. He placed reliance on section 15(4) and (5) of the Interpretation Act, Cap. 192, Laws of the Federation, 1990; and Order XXII, rule 1(c) of the Federal High Court Rules made applicable under paragraph 51 of Schedule 5 to the Decree.

Learned counsel finally submitted that the petition filed on 21/12/98 was void ab initio. The trial and determination of same by the tribunal was without jurisdiction and therefore null and void. He referred to the cases of Abdulkadir v. Musa (1999) 1 NWLR (Pt.587) 348; Madukolu v. Nkemdilim (1962) 2 SCNLR 341. He urged that the appeal be allowed.

Mr. P.A. Ogwuche, learned counsel for the petitioner/respondent, tried his best to swim against the current of flow. Learned counsel submitted that section 82 of the Decree is relevant. The petitioner/respondent filed his petition at the tribunal registry on 21/12/98. To compute time he referred to Order XII rule 1(a) of the Federal High Court Rules. The 14days allowed the petitioner by law fell on Saturday, 19th December, 1998. Learned counsel opined that Saturday is a non-working day. He further referred to Order XII rule 1(d) of the Federal High Court Rules.

Learned counsel submitted that there is no ground of appeal challenging the ruling of the tribunal given on 23/1/99. He cited the case of Alfotrin Ltd. v. Attorney-General of Federation & Anor. (1996) 9 NWLR (Pt.475) 634 at page 643.

Mr. B.O. Igwe replied by “observing” that issue of jurisdiction can be raised at any time even on appeal. He referred to the case of Nwosu v. Imo State Environmental Sanitation (1990) 2 NWLR (Pt. 135)688. He urged that the appeal  be allowed and the decision of the trial tribunal be set aside.

For a proper appreciation of the issue at stake, I need to quote, in extenso, section 82 of the Decree; section 15(4) and (5) of the Interpretation Act, Cap. 192, Laws of the Federation, 1990; Order XII rule 1(a) & (d) of the Federal High Court Rules.

Section 82 of the Decree reads as follows:-

“82. An election petition under this Decree shall be presented within fourteen days from the date on which the result of the election is declared.”

Section 15(4) and (5) of the Interpretation Act, Cap. 192 reads as follows:-

“15 (4) Where by an enactment any act is authorised 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 Sunday or a public holiday:

Order XII rules 1(a) and (d) provide thus:-

“1 (a) the limited time does not include the day of the date of or the happening of event, but commences at the beginning of the day next following that day;

(b) …….

(c) …….

(d) Where the time expires on public holiday, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being a public holiday.”

From the express provisions of the relevant section 15(4) and (5) of the Interpretation Act, Cap. 192 as reproduced above, one thing that is certain is that Saturday is not a public holiday. Saturday is not a public holiday under the Public Holidays Act, Cap. 378, Laws of the Federation 1990. Even if Saturday were to be a public holiday (which it is not) it would not have been left out in computing the period since the time provided by section 82 of the Decree to file the petition is 14 days i.e. more than six days. If it were to be six days, holidays shall be left out in computing the time.

From the above analysis, one is at a loss as to how the trial tribunal arrived at the arithmetic that the period from 5/12/98 to 21/12/98 is 13 days. Order XII rule 1 (a) of the Federal High Court Rules provides that computation must start from the day next following the event. So counting of the days must start on 6/12/98.

Counting from 6/12/98 to 21/12/98 on one’s finger tips in proper sequence gives 16 days, not 13 days. With due diffidence to the trial tribunal, it goofed in appraising the applicable laws and rules. The tribunal made a mistake by arriving at the wrong answer.

It is clear that the last day for filing the petition was 19/12/98, a Saturday which was not a public holiday by law. The petition which was filed on 21/12/98 was clearly out of time. The trial and ensuing determination of the petition after wrongly overruling the preliminary objection on jurisdiction is no doubt null and void. Refer to Madukolu v Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587. A trial, however well conducted to judgment, is to no avail if a court or tribunal lacks jurisdiction as in this petition. See also Abdulkadir v. Musa supra at page 351; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) 377.

Mr. P.A. Ogwuche felt that there was no appeal against the ruling of the tribunal handed out on 21/1/99.

This matter deals with jurisdiction and can be raised at any time, even on appeal before us. The fact of the matter is that ground 1 of the grounds of appeal amply covers the complaint relating to the competence of the petition and afortiori the jurisdiction of the trial tribunal. The case of Alfotrin Ltd. cited by the learned counsel is not apposite as it deals with failure to appeal on findings of fact.

I feel constrained to say that the appeal is meritorious. Brick-bats notwithstanding, the law on jurisdiction is clear. The law is there and at play. The appeal is allowed by me. I quash and set aside the null and void ruling of the trial tribunal handed down on 23/1/99 and the ensuing judgment of the same tribunal delivered on 8/2/99. From the circumstance of the petition and the fact that part of the mistake is that of the tribunal, I make no order as to costs in favour of the appellant.

Let the appellant go and enjoy his ‘booty’ as Councilor of Ubahu/Amankanu Ward in the boisterous Council of Nkanu East Local Government. He needs to re-think.

Other Citations: (1999)LCN/0512(CA)