Deacon Austin Iloka V. Joe Utomi & Ors (1999)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

The petitioner filed a petition in the Local Government Council Election Tribunal sitting in Asaba in Delta State of Nigeria. The respondent took an objection to the competence of the petition which, after argument, was struck out in a reserved and considered ruling of the trial tribunal.

The petitioner was dissatisfied with the ruling and appealed to this court on two grounds of appeal along with a notice of appeal filed on 20th January, 1999. The petitioner brought a motion for departure from the rules and abridgement of time within which to comply with the provisions of the Court of Appeal Rules, Cap. 62 of the Laws of Federation of Nigeria, 1990. The respondent has, once more taken objection to the competence of the appeal by way of motion on notice. The court, with Concurrence of both parties, decided to take the motion on notice challenging its jurisdiction first.

In this connection, learned counsel for the respondent to the appeal submits that the appeal was incompetent having been filed out of time statutorily stipulated. He contended that the appellant has 7 days within which to file his appeal but he failed to do so within the time prescribed by statute. He referred the court to the provisions of section 86(2) of the Local Government (basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. He argues further that the filing of his notice of appeal outside the time schedule by statute is bad.

I agree with the learned counsel for respondent on the authority of Ekekeugbo v. Fiberesima (1994) 3 NWLR (pt.335) 707, 731 that the word “within” when employed in relation with time means that the act or acts must be done before the expiration of the time specified therein.

Furthermore, it is settled law that all rights of appeal are derived from statutory provisions and not from common law and the failure to comply with such statute is fatal. See Ohene Moore v. Akessah Tayee 2 WACA 43. The court has no discretion as to the right of appeal and the time within which to exercise such right. It is invariably fixed by either the constitution or substantive legislation but certainly not by a subsidiary or procedural enactment. See Adegbite v. Raji (1992) 4 NWLR (Pt.236) 478, 488. The learned counsel for the appellant seems to concede that the appeal was filed out of time but submitted that the filing, though out of time, was proper. He craves in support the provisions of section 15(2) of the Interpretation Act. He urges court to take judicial notice of the fact that 18th and 19th January, 1999 were public holidays and the last day to file the notice of appeal being 19th January, 1999 and a public holiday, the appeal could be filed properly on 20th January, 1999 when it was in fact filed. He finally referred to paragraph 16 of the Fifth Schedule of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 and submitted that it is an authority to file the appeal in the manner it was done.

I propose to deal with the provisions of paragraph 26 of the Fifth Schedule of the Decree first Paragraph 26(1) thereof is not a provision directing the tribunal to sit on Sundays. It is merely direction as to what is to be done in the event that a matter being heard cannot be continued on the ensuing day or if that day were to be Sunday or public holiday the tribunal should not adjourn the matter sine die but to a definite date. Sub-paragraph (2) gives the tribunal absolute discretion to sit on a Saturday or public holiday but certainly not on Sunday. It is apt at this stage to recite paragraph 26 of the Decree which provides as follows:

“26(1) After the hearing of an election petition has begun, if the inquiry cannot be continued on ensuing day or, if that day is a Sunday or public holiday, on the day following the same, the hearing shall not be adjourned sine die but to a definite day to be announced before the rising of the Election Tribunal, and notice of the day to which the hearing is adjourned shall forthwith be pasted by the Secretary on the Tribunal notice hoard.

(2) The hearing may be continued on a Saturday or on a public holiday if circumstances dictate,”

Paragraph 26 deals with hearing of a matter by the tribunal itself. It is silent on matters concerning filing of papers. It is ominiously silent on the aspect dealing with the registry. The provision does not provide that the registry should be opened on public holidays and Saturdays. But if this is the postulation of the learned counsel for the appellant it is very difficult how it assisted his client who did not go to the tribunal either on 18th and 19th January, 1999 to file his papas even though the two days were declared as public holidays.

I agree with learned counsel for the respondents that the provisions of section 15(2) of the Interpretation Act and section 4 of Public Holidays Act do not avail the appellant. Section 86(2) of Decree 16 of 1998 excludes provisions of any enactment such as Interpretation Act and Public Holidays Act cited by the learned counsel for the appellant. The provisions of these two enactments are inapplicable and therefore irrelevant to determination of this appeal. Section 86(2) effectively excludes such enactments since it provides that appeal to the Constitutional Court on an election petition shall be brought within seven days notwithstanding the provisions of any other enactment to the contrary.

In the circumstance, the appellant’s notice of appeal and grounds of appeal filed on 20th January, 1999 in respect of a decision delivered on 12th January, 1999 is one day, with respect, out of time. The due date was 19th January, 1999 in view of the provisions of sub-sections (1) and (2) of section 86 which peremptorily limited the days for filing an appeal to seven. Any appeal brought after the expiration of the statutorily stipulated time is fundamentally and incurably bad. In the circumstance, the appeal fails for want of competence and it is struck out. The respondent to the appeal is entitled to the costs of this appeal which is assessed at N2,000,00.

Other Citations: (1999)LCN/0495(CA)