In The Court of Appeal

(Abuja Judicial Division)

On Tuesday, the 4th day of June, 2013

Suit No: CA/A/460/2010

Before Their Lordships

 Between

 And

ABUBAKAR DATTI YAHAYA, J.C.A.(Delivering the Leading Judgment): The appellants as applicants before the Census Tribunal, holden at Abuja, filed three applications on the 20th of October 2009 in Suit Nos. CTC/OS/08/3; CTC/OS/08/4 and CTC/OS/08/28, for

(1.) An Order extending time within which to present a complaint on behalf of residents and indigenes of Atakumosa East Local Government Area of Osun State.

(2.) An Order deeming the complaint already filed by indigenes and residents of Atakumosa East Local Government Area of Osun State as properly filed and served, appropriate fees having been paid.

The Census Tribunal, hereafter called the Tribunal, consolidated the three Motions with consent of all counsel. In a Ruling delivered on the 14th day of September 2010, the Tribunal refused to grant the prayers and held that the said three Suits which were filed on the 11th day of January 2010, are statute-barred. They were struck out. It is against that decision that the Appellants filed their Notice of Appeal with four grounds of appeal.

The Appellants filed their brief on the 22/2/11 but was deemed filed on the 21/3/12. The 1st and 2nd Respondents filed a joint brief on the 2/6/11 but was also deemed filed on the 21/3/12. Likewise, the 3rd respondent's brief was deemed filed on the 21/3/12.

The appellants identified three Issues for determination in their brief. They are: -

1. Whether, in the light of Section 28(1) of the National Population Commission Act and the inherent jurisdiction of the Court, the Tribunal is not empowered to grant extension of time.

2. Whether it is proper, lawful and appropriate to deliver a single ruling in respect of three different applications by different applicants though consolidated.

3. Whether, considering the circumstances of this case, the Attorney-General of Osun State is not a counsel to the Applicants/Appellants whose mistake, omission or inadvertence should not be visited on the innocent Applicants/Appellants.

The 1st and 2nd respondents adopted the Appellants' issues Nos. 2 and 3 but re-drafted Issue No. 1 to read -

1. Whether the Tribunal has the competence to grant extension of time to file complaint after six months as provided under paragraph 2 of the third schedule to the Act, given the limiting provision of paragraph 39(1).

For the 3rd respondent, the three Issues he distilled as contained in his brief are -

(a) Whether the Census Tribunal C sitting at Wuse, Abuja was not right in holding that the complaint in respect of which the Appellants brought a Motion on Notice for extension of time within which to present was statute-barred and therefore it lacked jurisdiction to entertain same.

(b) Whether assuming without conceding that the delay including the Appellants' complaint was a mistake or inadvertence of counsel can such mistake or inadvertence resurrect and/or bring back to life a complaint that is statute barred.

(c) Whether delivery of a single ruling by the tribunal over three different applications brought by same counsel for extension of time within which to present complaint against one set of respondents which applications were consolidated by consent of counsel occasioned miscarriage of justice.

Apart from minor variations, the Issues identified by all the parties are similar. The Issues identified by the appellants will therefore be used in deciding this appeal.

ISSUE NO. 1

Whether in the light of Section 28(1) of the National Population Commission Act and the inherent jurisdiction of the Court, the Tribunal is not empowered to grant extension of time.

Learned counsel for the appellants referred to Section 28(1) of the National Population Commission Act which established Tribunals to hear complaints on Census results and 28(7) of the NPC Act which made the 3rd Schedule thereto the rules of procedure in the Tribunal, and argued that the provisions of the 3rd Schedule to the NPC Act, cannot oust the jurisdiction of the Tribunal conferred by Section 28(1) of the Act. OPUTEH VS. ISIDA (1993) 3 NWLR (Pt. 279) 34 at 58; AFOLAYAN VS. BAMIDELE (1999) 3 NWLR (Pt. 595) 454 at 462 - 463 and FEDERAL CIVIL SERVICE COMMISSION VS. LAOYE (1989) 2 NWLR (Pt. 106) 652 at 711 were referred to and relied upon.

Learned counsel also referred to paragraph 43 of the 3rd Schedule to the NPC Act, which provides that non-compliance with any of the provisions of the Schedule shall not render any proceedings void, and argued that non- compliance with paragraph 2 of the Schedule to the NPC Act is not fatal, since substantial justice is the requirement of the law.

Counsel then referred to paragraph 39(1) and (2) of the 3rd Schedule to the NPC Act and submitted that it extends to the power of extending the time to do anything or take any proceeding, to the Tribunal. He emphasised that rules of court should not be employed to defeat the course of justice and deciding matters on the merit - OLANIYAN VS. OYEWOLE (2008) ALL FWLR (Pt. 399) 503 at 523 - 524; ALH. TUKUR ABUBAKAR & ORS VS. ALH UMARU MUSA YAR'ADUA & ORS (2008) 4 NWLR (Pt. 1078) 465 and MUKADAM VS. AKANBI (2000) 13 NWLR (Pt. 685) 616 at 625. He urged us to resolve the Issue in favour of the Appellants.

Learned counsel for the 1st and 2nd respondents disagreed with the position of the Appellants and submitted that since paragraph 39(1) of the 3rd Schedule is subject to paragraphs 2 and 15 of the 3rd Schedule, there is a limitation, and the Tribunal cannot enlarge time for the filing of complaints. He referred on "subject to", to the cases of AQUA LTD VS. ONDO SPORTS COUNCIL (1988) 4 NWLR (Pt. 91) 622 at 655; TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517 at 580 and IDEHIN VS. IDEHIN (1991) 6 NWLR (Pt. 198) 382 at 419. He urged us to resolve the Issue in favour of the respondents.

For the 3rd respondent, learned counsel referred to paragraph 2 of the 3rd Schedule to the NPC Act, and emphasised on the use of the word "shall" therein, defined in NATIONAL ASSEMBLY VS. CCI CO. LTD (2008) 5 NWLR (Pt. 1081) 519 at 540 and F.A.B.S. LTD. VS. IBIYEYE (2008) 14 NWLR (Pt. 1107) 375 at 396 - 397. Since there is a limitation as to the period within which to file the complaint, the right of the appellants had been extinguished when they filed outside the limitation period - EGBE VS. ADEFARASIN (NO. 2) (1985) 1 NWLR (Pt. 3) 549; NASIR VS. C.S.C KANO (2010) 6 NWLR (Pt. 1190) 253 and OMAYE VS. OMAGU (2008) 7 NWLR (Pt. 1087) 447 at 501.

Counsel also argued that paragraph 39(1) of the 3rd Schedule to the NPC Act is subject to paragraphs 2 and 15 of the 3rd Schedule. He then referred to OKEREKE VS. YAR'ADUA (2008) 6 NWLR (Pt. 1082) 37 at 58 on the meaning of "subject to."

On paragraph 43(1) of the 3rd Schedule to the Act, learned counsel argued that if the Tribunal directs that non-compliance with any of the provisions of the Schedule renders any proceedings void, then it is void. Since this is what the Tribunal 'directed', then there cannot be any complaint. He urged us to resolve the Issue in favour of the respondents.

Now, it is Section 28 of the NPC Act that established Census Tribunals with the power to "hear complaints and objections to census results." Paragraph 2 of the 3rd Schedule of the NPC Act makes it mandatory to file such census complaints within six months after the date on which the census results are released. What happens if the complaint is not filed within the prescribed six months period?

Paragraph 39(1) and (2) of the 3rd Schedule to the NPC Act provides -

1. The Tribunal shall have power, subject to the provisions of paragraph 2 and 15 of this schedule, to enlarge or adjudge the times appointed by this Act or the rules of court mentioned in paragraph 44 of this schedule or fixed by any order enlarging time, for doing any act or taking any proceeding upon such terms (if any) as the justice of the case may require. 

2. Enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed. 

From the above, it is clear that the general power given to the Tribunal to extend or abridge time concerning any proceedings before it, is subject to the provisions of paragraphs 2 and 15 of the 3rd Schedule to the Act. This means that paragraphs 2 and 15 are taken away from the situations upon which the Tribunal can extend time or abridge it. This is because it is a principle of interpretation, that statutes should be read as a whole and literal construction given to the words in their ordinary natural meaning - NWAKIRE VS. C.O.P (1992) NWLR (Pt. 241) 289. 

The legislature in enacting a law, must have meant what it said and the words used are not in vain. In this wise, the use of the words "subject to" in paragraph 39(1) of the 3rd Schedule, is for a purpose. The purpose is to restrict, to limit the operation of the paragraph so that paragraphs 2 and 15 of the 3rd Schedule could have an overriding effect on paragraph 39(1) and (2). See AQUA VS. ONDO STAE SPORTS COUNCIL (1988) 4 NWLR (Pt. 91) 622 cited in TUKUR VS. GONGOLA (1989) 4 NWLR (Pt. 117) 517 at 542; OKEREKE VS. YAR'ADUA (Supra) at page 58 which held that - 

'The expression "subject to" used in paragraph 14(1) of the first Schedule to the Electoral Act 2006 introduces a condition, a provision, a restriction and a limitation....'

It is also idle to argue as the appellants had done, that because the limitation period is in the schedule, which is meant to be rules of procedure, it cannot negate or oust the clear provisions of the Act in section 28(1) of the NPC Act. This is because paragraphs 2 and 15 of the 3rd schedule to the Act, have not in any way negated or ousted the provision of Section 28(1) of the NPC Act. If the said paragraphs 2 and 15 had ousted in toto, the jurisdiction of the Tribunal to hear complaints and objections on Census results, then they would not be given effect to, at all. All that the said paragraphs had done, was to prescribe a period within which the complaints could be filed before the Tribunal. The power to hear the complaints have not at all been affected or ousted. They remain intact. The said paragraphs 2 and 15 of the 3rd Schedule to the NPC Act, provide for the procedural time within which complainants can invoke the jurisdiction of the Tribunal and they came into existence in fact, because of Section 28(7) of the NPC Act which states -

"The rules of procedure to be adopted by the Census Tribunal in hearing complaints and objections to census results, shall be set out in the Third Schedule to the Act."

It is an acceptable and modern method of legislative drafting, to make provisions for procedural rules, in a schedule to the law, and not in the main body of the law itself. This is what was done here, and the object had not been derogated therefrom. Since this is the position, paragraphs 2 and 15 of the 3rd Schedule to the NPC Act, have not overridden the provision of Section 28(1) of the NPC Act and as such, the cases of OPUTEH VS, ISHIDA (Supra); AFOLAYAN VS. BAMIDELE (Supra) and F.C.S.C. VS. LAOYE (Supra) are not applicable to this case.

Reference has been made by the appellants, to paragraph 43(1) of the Third Schedule to the Act, which provides -

"Non-compliance with any of the provisions of this schedule, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the tribunal shall so direct...."

to argue that non-compliance with paragraph 2 of the Schedule, should not render the Suits filed outside the six months period, void.

First of all, the argument has not taken into consideration, the provision - "unless the tribunal shall so direct" - In this respect, the tribunal had directed that the three Suits or complaints filed in the Tribunal outside the prescribed six months period, are void. Since the Tribunal has power to so direct, by virtue of Section 43(1) of the Third Schedule, it cannot be faulted.

Secondly, Section 43(1) of the Third Schedule to the NPC Act is a general provision, which cannot operate in the face of a specific provision of paragraph 2 of the Third Schedule, and override it.

Learned counsel for the appellants has also argued that in the interest of doing substantial justice, the Tribunal should have granted extension of time to the appellants, so that the suits or complaints could be heard on the merit.

Before a court can have the competence and jurisdiction to entertain a matter, three conditions must co-exist. They are: -

1. The court is properly constituted as regards numbers and the qualification of the members, and no member is disqualified for any reason;

2. The subject-matter of the case is within the stated jurisdiction of the court and there is no feature in the case before it, which prevents the court from exercising its jurisdiction; and 

3. The case had come to the court, initiated by due process of law, and upon the fulfillment of any condition precedent to the exercise of jurisdiction.

See MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; ODOFIN VS. AGU (1992) 3 NWLR (Pt. 229) 350 and A.G. ANAMBRA VS. A.G. FEDERATION (1993) 6 NLWR (Pt. 302) 692.

Once any of these conditions is absent, the court will lack the jurisdiction to preside over the case and if it does, the proceedings in entirety, would be a nullity, no matter how well conducted and decided - MAGAJI VS. MATARI (2000) 5 SC 46.

It is a condition precedent, stipulated by paragraph 2 of the Third Schedule to the NPC Act, to file the complaint or objection within six months from the date the census results were released. It is not controverted, indeed that is the reason for the three applications, that the Appellants had failed to file the complaints within the stipulated time. The condition precedent having been lacking, the Tribunal had no jurisdiction to entertain the Suits, since a time limitation, is an absolute bar to jurisdiction.

Lack of jurisdiction to entertain a matter is fatal and a court, no matter how important or cogent a reason is, cannot confer jurisdiction on itself and certainly no consideration of the interest of justice can come to play, to enable it assume jurisdiction. See SOSSA VS. FOKPO (2001) 1 NWLR (Pt. 693) 16 at 29; AMADI VS. NNPC (2000) 6 SC (Pt. 1) 66 and KWARA STATE VS. GAFAR (1997) 7 NWLR (Pt. 511) 51. Issue No. 1 is therefore resolved against the appellants.

ISSUE NO. 2

Whether it is proper, lawful and appropriate to deliver a single ruling in respect of different applications by different applicants though consolidated.

The argument of counsel for the appellants in this Issue, is that the Tribunal, after consolidating the three applications and hearing them, wrongfully delivered a single ruling in respect of all the three applications, irrespective of their peculiar natures. Since Consolidation of cases is only for the purpose of hearing them, their individual identities and characters remain and so the decisions must be given distinctly. He placed reliance on AFOEZIOLA VS. NWOKORO (1999) 8 NWLR (Pt. 165) 393 at 405; ENIGWE VS. AKAIGWE (1992) 2 NWLR (Pt. 225) 505 at 535 and NWANYANWU VS. NWEKE (1995) 5 NWLR (Pt. 394) 277 at 240. He urged us to set aside the single ruling delivered in respect of the three applications for extension of time as it has failed to comply with the requirements of the law. Yet he submitted that "no valid decision has been made in respect of the application is Suit No. CTC/OS/08/03."

The response of the 1st and 2nd respondents to Issue No. 2 is that although it is not proper to give one judgment in 7 consolidated suit, if the Suits stand statute-barred, then Issue No. 2 becomes academic, as nothing would be heard in the court.

Learned counsel for the 3rd respondent submitted that as there are common questions of fact and law in respect of the subject matters of the three applications, the delivery of one Ruling disposing of all of them was desirable, proper and did not occasion any miscarriage of justice. He enumerated the common factors of all the three application to 

be -

(a) the reliefs sought are the same;

(b) the affidavit evidence are the same;

(c) the applicants are Local Governments in Osun State

(d) the three respondents are the same;

(e) the challenges in the Suits giving birth to the three applications are the same - Census results; and 

(f) the same counsel filed the three applications.

Consolidation of actions is aimed at saving costs and the time of court, where there are common questions of law and fact bearing sufficient importance to the subject-matter of the action, so that disposition would be at the same time. See DELTA STEEL VS. ADITYA PRABHA (1991) 3 NWLR (Pt. 179) 369. In ANDY UBA VS. DAME ETIABA (2008) 6 NWLR (Pt. 1067), the Court of Appeal quoted the judgment of the court in UME VS. IFEDIORAH (2001) 8 NWLR (Pt. 714) 35 at 43, which held that - 

"Consolidation of actions, in essence facilitates the joinder and trial at the same time, consequent upon the court's order of two or more pending actions. The actions so joined, persist in their separateness and disjunctiveness inspite of the simultaneous trial in a single proceeding. It follows naturally therefore that judgment must be given in respect of each action that had gone into seeming fusion."

However, it is not automatic that once a single judgment is delivered in consolidated suits, it would be set aside. A complaint that a single judgment delivered in respect of consolidated suits is invalid only if it is established that a miscarriage of justice has been occasioned. Otherwise, it will not be disturbed - BALOWU VS. IKPEAZU (2005) 13 NWLR (Pt. 942) 479.

The Ruling of the Tribunal delivered on the 14th of September 2010, began by stating that the three named applications filed on 20th October, 2009 in Suit Nos. CTC/OS/08/3, CTC/OS/08/4 and CTC/OS/08/28 had been consolidated, with consent of counsel. It reviewed the affidavits evidence and submissions of counsel. It applied the law governing the subject matter and held specifically and clearly that -

"The complaints Nos. CTC/OS/08/03, CTC/OS/08/4 and CTC/OS/08/28 filed on 11th January, 2010 are statute-barred and are hereby struck out. Application refused."

So although a single Ruling was delivered, the Tribunal specifically mentioned and held that the three applications which had prayers 1 and 2, were refused and the three Suits declared statute-barred. Nobody is left in any doubt, as to the fate of the applications and the Suits. No miscarriage of justice has been occasioned and none has been established, especially as the reliefs, the evidence and the nature of the complaints are the same in all the applications. It is certainly totally wrong to submit as the appellants did in paragraph 6.02 of page 9 of their brief, that "no valid decision has been made in respect of the application in Suit No CTC/OS/08/03". It has been validly refused by the Tribunal.

Even if it is validly argued that the delivery of a single Ruling is improper, the Ruling cannot be set aside and a re-trial ordered. This is because this Court has resolved Issue No. 1 against the appellants. It will be futile to go back to the Tribunal just for the purpose of getting three different Rulings when the Suit or the complaints cannot be heard, having been caught by limitation period. This Issue is also therefore resolved against the appellants and in favour of the respondents.

ISSUE NO. 3

Whether considering the circumstances of this case, the Attorney-General of Osun State is not a counsel to the Applicants/Appellants whose mistake, omission or inadvertence should not be visited on the innocent Applicants/Appellants.

The counsel for the appellants submitted that the Attorney-General of Osun State holds the position of counsel to the entire public of Osun State. He owes them a duty to advise on legal implication of events such as the conduct of census, which he had infact done in this case. He referred to paragraphs 3 - 7 of the affidavit is support of the application to submit that the appellants as well as other Local Government Areas in Osun State, submitted materials and case files to the Attorney-General of Osun State for his advice. After perusing same, he advised that external solicitors be engaged to file complaints. He therefore forwarded the files to the external solicitors but forgot to include the files of the appellants along. That was done later. This was the mistake of the Attorney-General of Osun State which necessitated filing the complaints out of time. This should not be visited on the appellants, he argued.

The 1st and 2nd respondents disagreed that the Attorney-General of Osun State was counsel to the appellants and submitted that it was A.S. Awomolo SAN that is the counsel. At any rate, they argued, the suits are statute-barred and cannot be salvaged for any reason.

The 3rd respondent also clearly took the position, that the Attorney-General Osun State is not the counsel for the appellants and hence his mistake cannot excuse the appellants -PETERSIDE VS. IMB (NIG) LTD (1993) 2 NWLR (Pt. 278) 712 at 733. Even if the Attorney-General of Osun State is counsel for the appellants, his inadvertence cannot extend to cover jurisdictional situation - OWNERS OF M/V. BASCO LINER VS. ADENIJI (1993) 2 NWLR (Pt. 274) 195 at 204.

It seems to me that even if the Attorney-General of Osun State had at one time advised the appellants, he was not the one who filed and represented the appellants before the Tribunal and so he couldn't be the counsel envisaged, whose mistake can validly exculpate the appellants

Further, even if the Attorney-General Osun State was indeed the counsel, the issue is one of jurisdiction of court and there is no reason, no matter how important, that can operate to confer jurisdiction where there is a statute-bar - M/V. BASCO LINER VS. ADENIJI (Supra). So whether the Attorney-General Osun State was counsel to the appellants or not, the answer will be academic as it will add nothing positive to the outcome of the appeal. Issue No. 3 is thus resolved in favour of the respondents and against the appellants.

In the result, this appeal lacks merit and it fails. The Ruling of the Tribunal delivered on the 14th of September 2009 from which this Appeal emanated from, is hereby affirmed.

No order as to costs.

REGINA OBIAGELI NWODO, J.C.A.: I have had the advantage of reading in advance, the judgment of my learned brother, Yahaya JCA, just delivered and I agree with the reasoning and conclusion arrived thereat. 

Jurisdiction of the Court to entertain a matter is fundamental and gives legality to any decision therefrom. When there is a condition precedent stipulated as in the instant case under paragraph 2 of third schedule to the NPC Act, it must be complied to. 

Paragraph 2 of the third schedule to NPC Act stipulates that any complaint or objection must be filed within six months from the date the census results were released. These condition precedent was not complied to, consequently the tribunal lacked the jurisdiction to entertain the suit on grounds of time limitation. The tribunal lacked competence to have proceeded with the suit.

For the above and the fuller reasoning and conclusion in the lead judgment which I agree with, I hold that this appeal lacks merit and is dismissed. I abide by the consequential order in the lead judgment.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I have had the privilege of a preview of the judgment just delivered by my learned brother, Yahaya, JCA and I agree entirely with his reasoning and conclusion that the appeal lacks merit and should be dismissed. There shall be no order as to costs.

     Appearances