Chief Momoh Yusuf Obaro V. Alhaji Salihu Ohize & Ors (2008)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
The Appellant contested for the Kogi Central Senatorial District election on 21/4/2007 under the platform of the All Nigeria Peoples Party (ANPP) while the 1st Respondent/Applicant did contest under the Action Congress (AC) among other contestants in other political parties. The 1st Respondent was declared the winner whereupon the Appellant presented his petition before the National Assembly/Governorship and Legislative Houses Election Petition Tribunal, hereinafter called “the tribunal”
At the conclusion of hearing the Tribunal in its Judgment delivered on the 8th day of October 2007 held that the Petitioner failed to prove the petition and it was dismissed.
Dissatisfied with the Judgment, the Appellant now appealed to this Court.
The 1st Respondent/Applicant by a notice raised preliminary objection to the hearing of this Appeal and by a Motion on Notice dated 19th day of November 2007 and filed in this Court on 20th day of November 2007 prayed for the following reliefs:-
“(1) An order of this Honourable Court striking out the Appellant/Respondent’s Notice and Grounds of Appeal as it is incompetent, and filed outside the statutory period allowed for appeals in election matters.
(2) And for such order or orders as this Honourable court may deem fit to make in the circumstances.”
The grounds for the relief sought are as follows:-
(1) The Judgment of the trial Tribunal appealed against by the Appellant was delivered on 8th day of October 2007.
(2) The Appellant filed his appeal on the 1st day of November, 2007, twenty-three days after the Judgment was delivered.
(3) By paragraph 1 of the Practice Direction No. 2 of 2002 made pursuant to the Electoral Act 2006, No 2 section 149, the period prescribed for filing an appeal against the Judgment of a Tribunal in an election case is twenty-one days.
(4) The Appellant’s appeal in this case was filed out of time.
(5) The Appellant did not obtain leave to file his appeal out of time.
(6) The appeal having been filed out of time is incompetent.
(7) This Honourable Court lacks jurisdiction to hear this Appeal by virtue of its incompetence and it should be stuck out.
In support of the application is an affidavit of 10 paragraphs while the Appellant filed a 5 paragraph Counter Affidavit to oppose the application, written addresses were ordered in this application.
At the hearing, the Learned Counsel for the 1st Respondent/Applicant and the Appellant/Respondent adopted and relied on their respective written addresses.
The Learned Counsel for the 1st Respondent/Applicant formulated two issues for determination as follows:-
(1) Whether the Appellant’s appeal was filed within the time prescribed by law.
(2) Whether the Appellant’s appeal having been filed outside the prescribed time is competent .
The Learned Counsel for the Appellant/Respondent on the other hand raised only one issue for determination as follows:-
Whether the Appellant’s Notice to Appeal was filed out of time.
In determining this application, I think it will suffice to consider the issues formulated in the 1st Respondent/Applicant’s written Address since the issues formulated in the Appellant/Respondent written address is more or less the same as that of the 1st Respondent/Applicant.
Issues 1 & 2 (Taken together)
The Learned Counsel for the 1st Respondent stated that the Appellant’s appeal in this case arose from the Judgment of the National Assembly, Governorship and Legislative Houses of Assembly Tribunal sitting in Lokoja, Kogi State. He went further that the Judgment was delivered on the 8th day of October 2007. Reference was made to the record of appeal pages 438 to 472 which contained the Judgment of the Tribunal.
He also referred to the averment that the Judgment was delivered on 10/10/07 in the Counter Affidavit of the Appellant and he submitted that it is not in accordance with the notice of appeal and the printed records of this Court. He therefore urged that the averment should be discountenanced. Learned Counsel for the 1st Respondent/Applicant also referred to:-
-Paragraph 1 of the Practice Direction No. 2 of 2007 and
-Sections 149(1) & (2) of the Electoral Act 2006 and submitted that the Appellant has breached the provisions regulating the time for filling of appeals in election matters.
On the submission by the Counsel for the Appellant/Respondent that Public Holidays, Saturdays and Sundays should be excluded in the calculations and computation of time, Learned Counsel for the 1st Respondent/Applicant referred to Section 15 of the Interpretation Act Cap. 192 Laws of the Federation 1990 and submitted that the appeal was filed out of time.
He submitted that the failure of the Appellant to file his appeal within time is not mere irregularity but one which is fatal and renders the appeal incompetent. He referred to the following cases:-
APGA vs. PDP (2004) 2 FWLR part 192 page 266:
Kere vs. Kalba (2004) All FWLR Part 221 Page 1447:
Afribank Nigeria Plc vs. Akwara (2006) 1 SC Part 11 at Page 40;
Tyonzgul v. AG Benue State (2005) 5 NWLR Page 226 at 251 Paragraph B-C.
The Learned Counsel for the 2nd to 14th Respondents associated himself with the submissions of Counsel for the 1st Respondent/Applicant and he urged that this appeal be dismissed. He also applied to withdraw the Notice of Preliminary Objection filed on behalf of the 2nd to 14th Respondents on the 21st day of January 2008.
In his own reply Learned Counsel for the Appellant/Respondent referred to Order 23 rule 1 (c) of the Federal High Court (Civil Procedure Rules) 2000 and he submitted that by implication Public Holidays, Saturdays and Sundays shall not be reckoned with in the computation of time where the act is required by law or by the orders of the Court to be done for a period longer than five days.
He stated that 11th and 12th October 2007 were declared public holidays by the Federal Government of Nigeria, and there are three Saturdays (13th, 20th and 27th October 2007) between 9th October when the Judgment was read and November 1st 2007 when the Appellant filed his Notice of Appeal. He also stated that there were equally three Sundays, (14th, 21st and 28th October 2007) between October 9th when the Judgment was read and November 1st 2007 when the Appellant filed his Notice of Appeal. And all together there are 8 days made up of public holidays and weekends.
Learned Counsel referred to:-
Section 74 (1) (g) of the Evidence Act:
Auto Import Export vs. Adebayo (2003) FWLR Pages 1693-1694 particularly ratios 6 and 7.
Where it was held among others that public holidays are judicially noticed days and computation of time shall begin to run from the next day not being public holidays or weekends.
He now submitted that if the 8 days made up of public holidays and weekends are excluded in line with Order 23 rule (1) (c) of the Federal High Court (Civil Procedure Rules) 2000 then the 21 days to which the Appellant has to file his Notice of Appeal against the trial Tribunal’s Judgment would have ended on 8th November 2007 but if Saturdays are reckoned with as tribunal working days then the time to file the Notice of Appeal would have ended 5th day of November 2007.
He finally submitted that the appeal was filed within the time allowed by the law. He urged that the Preliminary Objection be dismissed.
There is no doubt that the Appellant’s appeal arose from the Judgment of the National Assembly, Governorship and Legislative Houses of Assembly Tribunal sitting in Lokoja, Kogi State. But there is controversy between the parties as to the date the Judgment was delivered.
A careful glean at the record of Appeal especially pages 438 to 472 showed that the Judgment of the Tribunal was delivered on Monday 8th day of October 2007. And at page 473 the Notice of Appeal filed on behalf of the Appellant also confirmed that the Judgment was delivered on the 8th day of October 2007.
Therefore, the averment in the Counter-Affidavit filed on behalf of the Appellant that the Judgment of the Tribunal was read on 9th October 2007 has no basis. And as far as this Appeal is concerned, I hold the view that the Judgment of the Tribunal appealed against was delivered on the 8th of October 2008.
I will now deal with the issue whether the Appellant’s appeal was filed within the time prescribed by law.
The Practice Direction paragraph 1 and Section 1 provides as follows:-
“For the purpose of appeals coming to the court of Appeal under Section 149 of the Electoral Act 2006, No. 2, this Practice Direction shall be strictly observed by all parties:-
(1) The Appellant shall file in the Registry of the Tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against”
It has been settled earlier in this Judgment that the decision appealed against was delivered on Monday the 8th of October 2007. It is also trite that the word “shall” when used in a statute or Rules of Court like the Practice Direction No. 2 of 2007 as in this case, makes it mandatory that the rules must be observed. It is a word of command and denotes an obligation thereby giving no room for discretion. In other words it imposes a duty.
See:-
– Mokelu v. Federal Commissioner for works and Housing (1979) 3 SC Page 35;
– Katto vs. Central Bank of Nigeria (1991) 9 NWLR Part 214 at Page 126.
Consequently, any party dissatisfied with the Judgment of the lower Tribunal must file an appeal within 21 days from the date of the Judgment.
As I said earlier, the Judgment of the Tribunal was delivered on the 8th day of October 2007 and that being the case; the Appellant ought to have filed his appeal not later than Monday 29th of October 2007.
In this case the Appellant filed his notice and grounds of appeal on Thursday the 1st of November 2007. He relied on the provisions of Order 23 rule 1 (c) of the Federal High Court (Civil Procedure Rules) 2000 which states that Public Holidays, Saturdays and Sundays shall not be reckoned with in the computation of time for doing an act where the law or statute require the act to be done within a period longer than five days.
In my humble view, the Federal High Court (Civil Procedure Rules) 2000 is not applicable in this situation; the applicable rule is the Practice Direction No. 2 of 2007, which states that the Appellant shall file in the registry of the Tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against.
The issue of when public holidays or Sunday should be counted or excluded was settled by the provisions of Section 15 of the Interpretation Act Cap. 192 Laws of the Federation of Nigeria 1990 which provides as follows:-
“15 (1) A reference in an enactment to the time of day is a reference to the time which is one hour in advance of Greenwich 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 day of the period is a holiday, as continuing until the end of the next following day which is not a holiday.
(3) Whereby 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) Whereby 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.”
In view of the fact that the Appellant must file his notice and grounds of appeal within 21 days from the date of the decision appealed against, Saturdays, Sundays and public holidays are counted. The only time Sunday and public holidays are not counted is if the period is less than 6 days, which is not the case in this appeal. See:- Section 15 (4) of the Interpretation Act (supra).
In the case of APGA vs. PDP (supra), it was held by this Court Per ADEKEYE JCA at Page 276 paragraphs B – D as follows:-
“The Practice Direction has the same effect as Rules of Court in all proceedings related to election petition appeals.
Just as the Direction constitutes the rules to be followed in the election appeals, they must be complied with strictly, cannot be circumvented… Non compliance… is fatal to the appeal of the Appellant”
Also in Okonkwo vs. Ngige (2006) 8 NWLR Part 981 at Page 119.
This Court per Ogebe JCA (as he then was) held inter alia as follows:-
“Even if the applicant has a legal interest in the appeal (which he has not been able to establish), his failure to bring this application within 21 days allowed to appeal from the Judgment of Election Tribunal provided for in Section 138 of the Electoral Act 2002 permanently shuts him out as the time provided therein cannot be extended. Time is of essence in electoral matters and delay in taking prescribed steps can be fatal.”
Section 149 of the Electoral Act 2006 is impari materia with section 138 of the Electoral Act 2002 under reference.
See also – Kere vs. Kalba (supra)
Also in the case of Afribank Nigeria Plc v. Akwara (2006) 1 SC Page 11 at 40 particularly at 59 the Supreme Court held among others thus:-
“The appeal decision and the right to appeal persist as long as the Appellant file the notice of appeal within an extended period to do so. It is elementary law that it is the Court that can extend the period within which an appeal can be filed. A party cannot on its own be indolent and suddenly wake up from the indolence or slumber to file an appeal out of time without seeking the leave of the Court. That will be against the rules of Court and the Court will strike out the application effortless.”
In the instant application under consideration, the notice and grounds of appeal was filed on 1st day of November 2007. By simple counting from 8th day of October 2007, 21 days expired on the 29th day of October 2007.
The notice and grounds of appeal was filed 3 days after the 21 days stipulated by the Electoral Act 2006 and Practice Direction No. 2 of 2007 had expired.
This Appeal therefore was filed out of time and I agree with the submissions of the Learned counsel for the Respondent/Applicant that the failure of the Appellant to file his appeal within time is not mere irregularity but one which is fatal.
In view of the foregoing, the notice of Appeal of the Appellant filed on 1st November 2007 having been filed outside the mandatory period is grossly incompetent and it robs this Court of the Jurisdiction to entertain the Appeal.
Issues 1 and 2 are therefore resolved against Appellant/Respondent.
In the result, the preliminary objection succeeds and the notice and grounds of appeal filed on behalf of the Appellant is accordingly struck out.
The notice of preliminary objection which was filed on behalf of 2nd to 14th Respondents on 21/1/2008 having been withdrawn earlier at the hearing of this application is also struck out.
The 1st Respondent and 2nd to 14th Respondents are entitled to costs which is fixed at N15,000.00 (Fifteen Thousand Naira) each in favour of 1st Respondent and 2nd to 14th Respondents jointly.
Other Citations: (2008)LCN/2756(CA)
