Legalpedia Citation: (2023-08) Legalpedia 46736 (CA)

In the Court of Appeal

ABUJA JUDICIAL DIVISION

Fri Aug 18, 2023

Suit Number: CA/B/EP/HR/ED/02/2023

CORAM

Abdul-Azeez Waziri JCA

Habeeb Adewale Olumuyiwa Abiru JCA

Muhammed Lawal Shuaibu JCA

PARTIES

1. IYAWE ESOSA
2. LABOUR PARTY

APPELLANTS

1. SUNDAY IZUHUNWA AGUEBOR
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

Hearing to the petition commenced on 16/06/2023 with the petitioners calling their witnesses. On 20/06/23, the subpoenaed witness appeared in Court pursuant to the subpoena and she was sworn as PW3. She pleaded with the Tribunal for time to arrange the ballot papers and the Tribunal acceded to the request by adjourning to 6/7/2023 for continuation of hearing. On the 6/7/2023, the subpoenaed witness also informed the Tribunal that the documents she was asked to produce were being sorted out and at that point, counsel to 3rd Respondent (INEC) prayed that they be given up to Monday, 10th July, 2023 to produce the document but the other Respondents argued that the petitioners have exhausted their time for presenting the petition. On oral application of counsel to the petitioners, the Tribunal extended time to the petitioners to prove their petition. It was against the extension of time given to the petitioners that the Appellant filed this appeal.

HELD

Appeal dismissed

ISSUES

Whether having regards to the mandatory provisions of Paragraphs 16 (3) and 41 (10) (b) of the 1st Schedule to the Electoral Act, 2022, the lower Tribunal had jurisdiction and power to extend the time of the 1st and 2nd Respondents/Petitioners’ to prove their petition beyond the statutory three weeks’ time line?

RATIONES DECIDENDI

EXTENSION OF TIME – FOR AN APPLICATION FOR EXTENSION OF TIME TO SUCCEED

Generally, for an application for extension of time to succeed, the applicant must establish good and substantial reasons for delay in filing his process. Thus, the exercise of judicial discretion depends on the facts of each particular case. – Per M. L. Shuaibu, JCA

ELECTION MATTERS – TIME FACTOR IN ELECTION MATTERS

…election matters being special proceedings, time is of the essence and therefore anything that would cause delay and impede speedy disposal of the election matters must be avoided. – Per M. L. Shuaibu, JCA

ENLARGEMENT OF TIME – CONDUCT OF COURTS IN ENLARGING TIME IN ELECTION MATTERS

By the combined effect of Paragraphs 16 (3) and 41 (10) (b) of the First Schedule to the Electoral Act, 2022, a petitioner in a House of Representative election has three weeks to prove his case. However, the provision of Paragraph 45 (1) of the said First Schedule to the Electoral Act empowers the tribunal to enlarge time for doing any act or taking any proceedings as the justice of the case may require, except otherwise provided by any other provision of the schedule. This implicitly means that the powers of the Tribunal can only be limited by the express provision of the schedule to the Act and in the absence of which, the discretionary powers of the Tribunal to enlarge time is unhindered. – Per M. L. Shuaibu, JCA

COURTS – DISCRETIONARY POWERS OF COURTS TO ENLARGE TIME IN ELECTION MATTERS

…even though time is of essence in an election or election related matters, that does not ipso facto remove the discretionary powers of the Court or Tribunal to enlarge time for doing any act or taking any proceedings as the justice of the case demands. – Per M. L. Shuaibu, JCA

EXTENSION OF TIME – ESSENCE OF PRAYER FOR EXTENSION OF TIME

Perhaps, I may need to stress the point that the essence of a prayer for extension of time is to enable a party to do within the period of the extension of time, the thing sought and which Rules or the Court requires to be done within a prescribed time.  – Per M. L. Shuaibu, JCA

ENLARGEMENT OF TIME – ON REQUIREMENT OF MAKING FORMAL APPLICATION FOR ENLARGEMENT OR ABRIDGMENT OF TIME

As regards the requirement of making formal application of enlargement or abridgment of time and supporting it by affidavit pursuant to Paragraph 45 (4) of the First Schedule to the Electoral Act, 2022, the determinant consideration in my view remains the justice of the case based on the peculiar facts. In the other words, was there any basis for the exercise of the discretionary power of the Court or Tribunal? If there is, then the mode of the application does not matter. In the case of CHAIRMAN & ORS V. EXECUTIVE GOVE. OF PLATEAU STATE & ORS (2016) LPELR-47644(CA), this Court has held that an application for enlargement of time can be taken by a judge in chambers. Thus, an oral application for enlargement of time can suffice, once the facts and circumstances justify the exercise of such discretion by the Tribunal or the Court. – Per M. L. Shuaibu, JCA

STATUTES – THE DUTY OF THE COURTS IN INTERPRETING STATUTES

It is trite that in interpreting a statute, the duty of a Court is to discover the intention of the law maker and in so doing, it must consider the words used in order to discover their ordinary meaning, and then give use their ordinary meaning as they relate to the subject matter – Alagbaoso Vs INEC & Ors (2023) LPELR-9702(SC), Aliyu Vs Namadi (2023) LPELR-59742(SC), Abdullahi Vs Argungu (2023) LPELR-59950(SC), Carnation Registrars Ltd Vs The President, National Industrial Court of Nigeria (2023) LPELR-60102(SC). It is also trite that in the interpretation of statutes, a Court should adopt a holistic approach and interpret the provisions dealing with a subject matter together to get the true intention of the law makers. The provisions must be read as a whole, and not parts in isolation, and they must be interpreted in the light of the whole statute and an effort must be made to achieve harmony amongst them – Kassim Vs Adesemowo (2021) LPELR-55333(SC), Nwobike Vs Federal Republic of Nigeria (2021) LPELR-56670(SC), Umeano & Ors Vs Anaekwe & Anor (2022) LPELR-56855(SC). – Per H. A. O. Abiru, JCA

COURTS – RIGHTS OF COURTS TO GRANT EXTENSION OF TIME AND CONDUCT OF COURTS IN GRANTING EXTENSION OF TIME

…it is clear that while the provision in Paragraphs 41(10)(b) provides the time span of three weeks for the filing of a petitioner to prove his petition, the provisions of Paragraphs 45(1), (2) and (3) thereof allow for the grant of extension of the time by the lower Court to such a petitioner, where the justice of the case so demands, and they say that it matters not that the application for extension of time was brought after the time stipulated for the petitioner to prove his case.

​It is correct that the concluding part of the provision in Paragraph 45(1) above limits the power of lower Court to grant extension of time with the words “except otherwise provided by any other provision of this Schedule” which in simple English means that the lower Court would not exercise the power to grant extension of time where it is forbidden by any other provision in the Schedule. A look through the provision of Paragraph 41 (10)(b) shows that it uses the word ‘shall’ have three weeks. It, however, does not expressly forbid the grant or entertainment of an application for extension of the time provided. It is unlike the provision of Paragraph 16 (2) of the First Schedule to the Electoral Act 2022, which in talking about the five days given to a petitioner to file a Reply to the Reply of a respondent in Paragraph 16(1), provided that “the time limited by Subparagraph (1) shall not be extended”.

Or like the provision in Paragraph 18(4) of the First Schedule to the Electoral Act 2022 which, in talking about the seven days granted by Paragraph 18(1) to apply for pre-hearing session, provided expressly that “where the petitioner and the respondent fail to bring an application under this paragraph, the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall he filed or entertained.” Or even like the provision of Paragraph 18(12) of the First Schedule to the Electoral Act, 2022 which in talking of the setting aside of a judgment entered pursuant to Paragraph 18(11) for failure to participate in the prehearing session, stipulated that “any judgment given under Subparagraph (11) may be set aside upon an application made within seven days of the judgment (which shall not be extended), with an order as to costs of a sum not less than N20,000.00. These are the provisions that come within the words “except otherwise provided by any other provision of this Schedule” in Paragraph 45(1) of the First Schedule, and not the provisions of Paragraphs 41(10)(b) of the First Schedule to the Electoral Act 2022.

To read such forbidding provisions into Paragraph 41(10)(b) of the First Schedule to the Electoral Act will amount to importing words not used by the drafters of the Rules therein in order to change their meaning. It is elementary that in interpreting a statute, nothing is to be added to or taken from its provisions –  Attorney General, Federation Vs Attorney General, Lagos State (2013) 16 NWLR (Pt 1380) 249, Federal Republic of Nigeria Vs Bankole (2014) 11 NWLR (Pt 1418) 337. There is nothing in Paragraph 41(10)(b) of the First Schedule to the Electoral Act stopping the lower Court from exercising its power of extension of time in respect of the period a petitioner may present his case. – Per H. A. O. Abiru, JCA

COURTS – RIGHT OF COURTS TO GRANT AN EXTENSION OF TIME ON AN INFORMAL APPLICATION

Now, while it is correct that this is the formal requirement for the presentation of a motion for extension of time, it does not take away the inherent powers of the lower Court, as a superior Court of record, under Section 6(6)(a) of the 1999 Constitution (as amended), to grant an extension of time on an informal application where the interest of justice so requires – Adeniyi Vs Akintan (2011) 5 NWLR (Pt 1241) 554 at 565-568, Info-FM Radio (Nigeria) Ltd Vs Brilla Broadcasting Services Ltd (2016) LPELR-45467(CA). Moreover, the records of appeal show that the Counsel to the Appellant adequately participated in the oral application and presented arguments against the grant of the extension of time. This is tantamount to his having submitted to the procedure used and he cannot be heard to complain against it on appeal – Ayanwale and Ors Vs Atanda and Anor (1988) 1 NWLR (Pt 68) 22 at 34, Dansa Foods Ltd Vs Union Bank of Nigeria Plc (2015) LPELR-50728(CA). – Per H. A. O. Abiru, JCA

 

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act 2022

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