CHIEF AMBROSE OWURU v. CHIEF SERGEANT AWUSE & ORS.
(2004)LCN/1534(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of February, 2004
CA/PH/EPT/317/2003
RATIO
APPEAL: APPEAL FROM TRIBUNAL
“Appeals from the decision of Tribunals are not ordinary civil appeals. Right of appeal is provided for by statute. The appeal on hand had lapsed and no appellate court is competent to entertain it. Counsel cited the cases of Eyesen v. Sanusi (1984) 1 SCNLR page 353 at page 367. Queen v. President Ijebu Province(1959) WRMLR page 87 at 91; Moses v. Ogunlabi (1975) 4 S.C. 81 at page 84.
The court of Appeal in the legal system of this country and by the constitution, is vested with the power to hear appeals from Election Tribunals in Local Governments, State Assembly, Gubernatorial, House of Representative and senate elections. Time within which an election must be heard and concluded is also limited by statute and generally speaking, the court cannot extend the time limited by statute’ The right of appeal in election matters are contained in the statute governing the conduct of the election.” PER PER RABIU DANLAMI MUHAMMAD, J.C.A.
PETITION: ELECTION PETITION
“Election Petitions are “sui generis” and as such they are considered to be neither civil nor criminal proceedings. See GBE Vs ESEITE (1988) 4 NWLR (Pt S9) 435; AYUA Vs ADASU (1992) 3 NWLR (Pt 2s1) 598 and OWURU Vs INEC (1999) 10 NIVLR (622) 201. An election petition should not be treated as an ordinary civil suit. An election petition creates a special jurisdiction and the ordinary rules of procedure in civil cases do not serve its purpose. Because of their peculiar nature, the court should endeavor to hear them expeditiously, by reasons of their importance to good governance and the democratic set up. This places the election petitions above the normal transactions between individuals which give rise to ordinary claims in Court. See: ORUBU Vs NEC (1988) 5 NWLR (Pt.94) 323 where Uwais JSC (as he then was) stated at page 347 that:
“An election petition is not the same as ordinary civil proceedings because of the peculiar nature of election which by reason of their importance to the well being of democratic Society, are regarded with an aura that places them over and above the normal day to day transaction between individuals which give rise to ordinary or general claims in court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute.”” PER RABIU DANLAMI MUHAMMAD, J.C.A.
JUSTICES
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
Between
CHIEF AMBROSE OWURU Appellant(s)
AND
1. CHIEF SERGEANT AWUSE
2. ALL NIGERIA PEOPLES PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION OF NIGERIA Respondent(s)
RABIU DANLAMI MUHAMMAD, J.C.A. (Delivering the Leading Judgment):
When this appeal was called for hearing on 17th day of February, 2004, the Court discovered that the Ruling of the Tribunal was delivered on the 14th day of June, 2003 and that the Notice of Appeal was filed on the 1st day of September, 2003 i.e. 77 days after the Ruling was delivered. The Court therefore suo motu raised the issue of the competency of the appeal and asked counsel to address us on the competency or otherwise of the appeal.
Chief Awuru who appeared for himself submitted that the appeal is competent and valid and that the Notice of Appeal was filed within time and in due compliance with all the relevant provisions of the law. He submitted that the relevant provisions are the Electoral Act, 2002; S.25 of the Court o fAppeal Act and the Constitution. He then submitted that there is no Section in the Electoral Act which specifically provide the time frame within which an electoral appeal must be filed. He submitted that the only reference to time of appeal in the Electoral Act is in S.138 which only referred vaguely and generally to the time of appeal. He then referred to S.138(2) and S.139 which made vague reference to the time of appeal. He submitted that the non-reference of the time of appeal is deliberate.
He referred to S.25 of the Court of Appeal Act and submitted that they have 90 days within which to file their Notice of Appeal since the decision of the Tribunal is a final decision. He referred to P.D.P. Vs INEC (2000) 3 SCW (Pt. 8) 424 at 441 and EBOKAM Vs EKWENIBE (1999) 10 NWLR (Pt 622)242. He submitted that the appeal is competent because it was filed within time.
Mr. Mike Okoye learned counsel for the 1st and 2nd Respondents submitted that the Notice of Appeal is filed out of time and there being no application for extension of time, it is liable to be struck out for want of jurisdiction. He referred to S.248 of the 1999 Constitution and submitted that the President of the Court of Appeal is given powers to make rules regulating the Practice and Procedure of the Court of Appeal and it includes Practice Direction. He stated that the Ruling of the Tribunal was delivered on 14/6/03 and the Notice of Appeal was filed on 1/9/03 beyond the days prescribed in the Practice Direction relating to the Election Petitions. He then submitted that the Notice of Appeal having been filed outside that period is incompetent.
He referred to S.246(1)(b) of the 1999 Constitution and submitted that it has been construed by the Supreme Court in AWUSE Vs ODILI (2003) 18 NWLR (Pt 551) 116 that a party has right of appeal whether the decision is final or interlocutory. He then referred to S. 285 (1) & (3) and S.284 of the Constitution and submitted that the Practice Direction has constitutional effect. He referred to SANUSI Vs AYOOLA (1992) 1 NWLR (Pt 263) 275 and urged the Court to strike out the appeal for want of jurisdiction.
Mr. Dappa-Addo learned counsel for the 3rd respondent submitted that a right of appeal is not a fundamental human right but a constitutional or statutory right. He submitted that that being the case, a party exercising his right of appeal must conform with the statute in support of his submission, he cited the cases of EYESAN Vs SANUSI (1954) 1 SCNLR 353 and THE QUEEN Vs RESIDENT IJEBU PROVINCE (1959) WNLR 87.
He further submitted that if time for filing appeal is lapsed that court has no jurisdiction to hear the appeal as was held in ADELEKE Vs COLE (1961) 1 All NLR 35. He also submitted that the right of appeal in Election Petition is provided by the Electoral Act 2002 and that S.138 of the Electoral Act and the Practice Direction give time within which an appeal should be filed. He referred to Paragraph 51 of the 1st Schedule to the Act and S. 5(2) o f the Court o f Appeal Act which gives the President of the Court of Appeal power to make Practice Direction.
He then submitted that S.138 of the Act and paragraph I of the Practice Direction have limited the time within which an appeal could be filed. He submitted that the appeal was filed outside the 21 days prescribed by the practice Direction and the law. He therefore urged the court to strike out the appeal.
Let me first deal with the peculiar nature of election petition.
Election Petitions are “sui generis” and as such they are considered to be neither civil nor criminal proceedings. See GBE Vs ESEITE (1988) 4 NWLR (Pt S9) 435; AYUA Vs ADASU (1992) 3 NWLR (Pt 2s1) 598 and OWURU Vs INEC (1999) 10 NIVLR (622) 201. An election petition should not be treated as an ordinary civil suit. An election petition creates a special jurisdiction and the ordinary rules of procedure in civil cases do not serve its purpose. Because of their peculiar nature, the court should endeavor to hear them expeditiously, by reasons of their importance to good governance and the democratic set up. This places the election petitions above the normal transactions between individuals which give rise to ordinary claims in Court. See: ORUBU Vs NEC (1988) 5 NWLR (Pt.94) 323 where Uwais JSC (as he then was) stated at page 347 that:
“An election petition is not the same as ordinary civil proceedings because of the peculiar nature of election which by reason of their importance to the well being of democratic Society, are regarded with an aura that places them over and above the normal day to day transaction between individuals which give rise to ordinary or general claims in court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute.”
It could be seen from the authorities quoted above, election petitions are peculiar in nature. They are proceedings “sui Generis” which are not considered to be identical with other proceedings. They are considered important that the Court should not allow technicalities and rules of procedure to cause delay in their disposition.
The 1999 Constitution and the Court of Appeal Act has conferred upon the President of the Court of Appeal the powers to make rules for regulating the practice and procedure of the Court of Appeal. S.8 of the Court of Appeal Act, 1976 provides:
8(1) “The practice and procedure of the court of Appeal shall be in-accordance with this Act and, subject to this Act, in accordance with rules of Court.
(2) The President may make rules regulating the practice and procedure of the Court of Appeal.”
Section 248 of the Constitution of the Federal Republic of Nigeria, 1999 provides:
“Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.”
Exercising the powers conferred upon him by the constitution of 1999; the Court
of Appeal Act and the Electoral Act the President of the Court of Appeal gave Practice Directions in respect of conducting election petitions. Practice Direction No. 2 of 2003 is in respect of appeals coming to the Court of Appeal. It provides:
“For the purpose of appeals coming to the Court of Appeal under Section 137 of the Electoral Act 2002 No.4, this Practice Direction shall be strictly observe 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.”
The above provision is very clear. The appellant must file the Notice and Grounds of appeal within 21 days from the date of the decision appealed against. This is a mandatory provision which must be strictly observed.
Also paragraph 51 of the first schedule to the Electoral Act provides:
“Subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with the practice of procedure relating to appeal in the Court of Appeal or of the Supreme Court as the case may be regard being had to the need for urgency on electoral matters.”
The import of the above paragraph 51, in my opinion is that where the Practice Direction regarding election appeals is silent on any particular practice and procedure of the Court of Appeal, recourse will be had to the Court of Appeal Rules, relating to appeals in the Court of Appeal. Since the Practice Direction No.2 of 2003 is not silent on when to file the Notice and Grounds of Appeal, recourse will not be had to the Court of Appeal Rules.
It is therefore my considered opinion that the Practice Direction No. 2 regulates the time within which to file an election petition appeal.
Learned counsel for the appellant clearly misconceived the whole issue by disregarding the Practice Direction.
Where the Practice Direction has covered a matter recourse would not be had to the Court of Appeal Rules. The Practice Direction which has got constitutional backing is a rule of Court which must be obeyed. See the Supreme Court decision in WILLIAMS Vs HOPE RISING FUNDS SOCIETY (1982) 2 SC 145 where it was held that the rules of Court are made to be obeyed and no favour should be shown for not obeying same.
In APARI Vs HOSE (1999) 5 NWLR (Pt 604) 541 Practice Direction No. 1 of 1983 stipulated that the appellant shall file with his notice and grounds of appeal in the court and serve on the respondent a written brief. The appellant failed to file the brief along with the Notice and Ground of Appeal. The appeal was struck out holding that the failure to comply with the Practice direction is fatal and cannot be cured by an application for extension of time.
In OJUGBELE Vs LAMIDI (1999) 10 NWLR (Pt 621) 167 it was held that rules of court which include Practice Direction are made to be obeyed and no favour should be shown for not obeying them. In that case the Practice Direction issued by the President of the Court of Appeal which constituted the rules of the court in election appeals must be complied with and cannot be circumvented. Muri Okunola J.C.A. (of blessed memory) State:
“In conclusion, the Practice Direction of this Court as a rule of
court must be complied with and not circumvented and no favour should be shown for not obeying same.
Thus the appellant’s brief filed herein, on the showing of learned counsel for the appellant without compliance with the Practice Direction vitiates the appeal.”
As I have earlier stated in this Ruling, election petitions are “sui generis” and they are neither criminal nor civil proceedings. They are not governed by the ordinary rules of proceedings. Because of their peculiarity, they are governed by special rules of proceedings made specifically for that purpose. To state that the time within which to file an election appeal is governed by S.25 of the Court of Appeal, Act is a manifest misconception. I therefore hold that the filing of an election appeal is governed by paragraph I of the Practice Direction No.1 of 2003 and further hold that it is a mandatory provision which must be complied with strictly and failure to comply with the Practice Direction vitiates the appeal.
Since the Ruling of the Tribunal was delivered on 14th June, 2003 and the Notice of Appeal was not filed until on 1st September,2003 that is 77 days after the Ruling was delivered. This is clearly outside the 2l days prescribed by the Practice Direction, I hold that the Notice and Grounds of Appeal were filed out of time. The court has no jurisdiction to entertain the appeal. The appeal is hereby struck out. I make no order as to costs.
PIUS OLAYIWOLA ADEREMI, J.C.A.: The simple but fundamental issue that offers itself for resolution in this appeal is whether the Notice of Appeal filed on the 1st of September 2003 challenging the ruling of the Election Petition Tribunal sitting at Port Harcourt delivered on the 14th of June 2003 striking out the petition of the petitioner/appellant was out of time. In determining whether a process of court, the like of a Notice of Appeal, is time-barred, it is of fundamental importance to determine when time began to run.
In the case of BOARD OF TRADE VS. CAYZOR, J.R. VINE & CO LTD (t927) A.C. 610, the House of Lords laid down a guideline when it held: “Time therefore begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to succeed.”
This dictum was quoted with approval by the Supreme Court in FADARE VS. A.G. OYO STATE (1982) 4 S.C. 1.
By computation of time applying the provisions of Section 15(2)(a) and (b) of the Interpretation Act, Cap 192 Laws of the Federation of Nigeria 1990, time begins to run on the day following the day of the happening of the event since the day of the happening of the event is always excluded
In the instant appeal, time began to run from the 15th of June 2003. What is the duration of time within which an aggrieved party may lodge an appeal against the decision of an Election Petition Tribunal?
By the combined effect of the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria 1999, Section 8(2) of the Court of Appeal Act and Section 137 of the Electoral Act 2002 No. 4, the President of the Court of Appeal is empowered to make PRACTICE DIRECTIONS in respect of election appeals. In exercise of the powers conferred upon him by the aforementioned provisions of the Constitution and the Acts the President of the Court of Appeal had issued out PRACTICE DIRECTION NO. 2 of 2003 regulating appeals for the Election Tribunals to the Court of Appeal. The second paragraph of the PRACTICE DIRECTION reads:
“For the purpose of appeals coming to the Court of Appeal under Section 137 of the Electoral Act 2002, this PRACTICE DIRECTION shall be strictly observed by all parties.”
Section 1 of the PRACTICE DIRECTION which relates to the time of filing appeal reads:
“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.”(underlining mine for emphasis)
The Notice of Appeal in this matter which was filed on the 1st of September 2003 against a decision of the Election Petition Tribunal handed down on the 14’h of June 2003 is without any doubt outside the limitation period of 2l days prescribed. In IYIRHIARO VS USOH (1999) 4 NWLR (PT.597) 91 this court has held that time cannot be extended by any tribunal or any appellate court for filing a petition time of which has been statutorily limited.
This decision is in consonance with the philosophy of conducting election matters in court which is that it is of essence that all election matters be expeditiously determined. This inures to the benefit of the generality of the society. By analogy, this principle must apply to election appeals.
In the instant case it must be said that there was no application praying for an order extending the time to appeal against the decision of the Tribunal below. When no relief is sought or no order is prayed, a court of justice does not grant one.
For this little contribution but most especially for the detailed reasoning contained in the leading ruling of MUHAMMAD, J.C.A., a ruling that I have had a privilege of a preview and the reasoning and conclusion of which I am in full agreement with, I also strike out this appeal as being incurably bad in law. I abide by all other consequential orders therein contained including the order as to cost.
O. O. ADEKEYE J.C.A.: I had read before now the Ruling just delivered by my learned brother R. D. Muhammad, J.C.A. I agree with his meticulous reasoning and conclusion.
On the 17th of February 2004 when this appeal was mentioned, while going through the Records of Appeal, the court observed that the Ruling now appealed against was delivered on the 14th of June 2003, while the Notice of Appeal itself was filed on the 1st of September 2003. The court informed the counsels of its observation and having raised the issue suo motu, Counsels were invited to address the court as to whether the appeal was filed within the period stipulated by the Electoral Laws Act 2002. This issue obviously bothers on the competence of the Court of Appeal to adjudicate on the appeal and being a threshold, radical and fundamental issue of jurisdiction, counsels should be heard to resolve the issue before the court can take any further steps. A competent court of record has an unfettered jurisdiction to determine whether it has jurisdiction to entertain a matter before it: Oyelami v. Military Administrator Osun State (1999) 1 NWLR (Pt 613) page 45; Ogunmokun v. Military Administrator of Osun Sfafe (1999) 3 NWLR (Pt 594) page 261.
Counsels for the appellant and respondents made copious submissions in respect of limitation of time. Chief Owuru for the appellant submitted that Section 139 of the Electoral Act stated that the Rules of procedure to be adopted for the election petitions and appeals arising therefrom shall be those set out in the 1st schedule to the Act. Paragraph 51 of the 1st Schedule to the Act stated that an appeal to the Court of Appeal shall be determined in accordance with the practice and procedure relating to appeals in the Court of Appeal. Section 25 of the Court of Appeal Act makes provisions for appeals, 14 days in respect of interlocutory appeals and three months for appeals against final decisions. The appeal before the court is a final decision. It is therefore covered by three months statutory period.
He said that the Court of Appeal Practice Direction No. 2 of 2003 is an inferior legislation to the Court of Appeal Act and the 1999 constitution, the appeal is filed within the time specified by the court of Appeal Act Section 25; this court should entertain the application filed on 17th February 2004. Counsel cited the cases of PDP v. INEC (2000) 3 SCNLR (Pt 8) page 424; Ebekan v. Ekwenibe & Sons Trading Co. Ltd (1999) 10 NWLR (Pt 622) page 242-243.
Mr. Mike Okoye for the 1st respondent submitted vehemently that the appeal was filed out of time and any application for extension of time should be equally struck out for want of jurisdiction.
Section 248 of the 1999 empowered the President of the court of Appeal to make Rules regulating Practice and Procedure in an appeal. The President produced the Practice Direction to regulate the Practice and Procedure in the election petitions and appeals. The appeal filed in this matter clearly exceeded the days stipulated in the Practice Direction 2003. Any notice of Appeal filed outside the period rendered the appeal incompetent as the Practice Direction has a constitutional effect. Any appellant aggrieved by the decision of an Election Tribunal has a right to appeal against it. counsel referred to the case of Awuse v. Oditi (2003) 18 NWLR PAGE 852 at page 1116.
Mr. Dapaa-Addo for the 3rd respondent also confirmed that the President of the court of Appeal is empowered to promulgate rules regulating the practice and procedure in the Court of Appeal, including the Practice Direction in respect of electoral petitions. Section 138 and paragraph 1 of the Practice Direction No.2 of 2003 regulates the time for the filing of an appeal from the decision of the Election Tribunal to the Court of Appeal.
Appeals from the decision of Tribunals are not ordinary civil appeals. Right of appeal is provided for by statute. The appeal on hand had lapsed and no appellate court is competent to entertain it. Counsel cited the cases of Eyesen v. Sanusi (1984) 1 SCNLR page 353 at page 367. Queen v. President Ijebu Province(1959) WRMLR page 87 at 91; Moses v. Ogunlabi (1975) 4 S.C. 81 at page 84.
The court of Appeal in the legal system of this country and by the constitution, is vested with the power to hear appeals from Election Tribunals in Local Governments, State Assembly, Gubernatorial, House of Representative and senate elections. Time within which an election must be heard and concluded is also limited by statute and generally speaking, the court cannot extend the time limited by statute’ The right of appeal in election matters are contained in the statute governing the conduct of the election.
A quick look at some Electoral Laws shows that electoral laws make provisions for appeals and the tribunal to which an appeal lies. Section 246(1)(b) and (2) of the Constitution provides that an appeal to the Court of Appeal shall be as of right from Election Tribunal cases involving State Assembly, Governorship, House of Representative and Senate Elections, Jidda v. Kachalta (1999) 4 NWLR (Pt 599) page 426.
Time to take steps in appeals in election petition matters are statutorily limited. In effect, election petition statutes do contain provisions limiting the time within which an appeal must be heard. For instance section 137 of the Electoral Act 2002 stipulates that
Without prejudice to the provisions of Section 294 subsection (1) of the constitution of the Federal Republic of Nigeria 1999 an election petition and an appeal arising therefrom under this Act shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or court.”
Paragraph 52 of schedule 5 to the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 5 of 1999 provides that –
“Subject to the provisions of this Decree, an appeal to the court of Appeal, shall be determined in accordance with the practice and procedure relating to appeals in the Court of Appeal regard being had to the need for urgency as electoral matters.”
Practice and procedure of the Court of Appeal relating to election matters are to be found in the Court of Appeal Rules, the Constitution, Section 246(1)(b) and 2 of the 1999 Constitution, and Practice Direction issued by the President of the Court of Appeal in the exercise of the powers conferred upon him by the Constitution and other enabling laws, electoral laws. The relevant Practice Direction as regards the year 2003 election petition appeals based on section 285 of the 1999 Constitution, section 137 of the Electoral Act 2002 No.4 is the practice Direction No. 2 0f 2003.
The preamble of this practice Direction reads as follows:
“In the exercise of the powers conferred upon me by section 285 of the Constitution of the Federal Republic of Nigeria 1999, Section 8(2) of the Court of Appeal Act, 1976, Section 137 of the Electoral Act 2002 No.4, I, Hon. Justice Umaru Abdullahi-President of Court of Appeal give the following Practice Directions –
For the purposes of appeals coming to i.e. Court of Appeal under section 137 of the Electoral Act 2002 No.4- this Practice Direction shall be strictly observed by all parties, Paragraph 1 of the Practice direction stipulates that:
“The appellant shall file in the Registry of the Tribunal his notice and grounds of appeals within 21 days from the date of the decision appealed against.”
It is embodied in the preamble of the Practice Direction that the provisions shall be strictly obeyed by all parties. In the case of Olugbele v. Lamidi (1999) 10 NWLR (Pt 691) page 107 at 171 it was held that the provisions of the Practice Direction shall be strictly complied with and that non-compliance vitiates the appeal. In the cases of Falana v. Obasanjo (1999) 6 NWLR (Pt 606) page 283; Abah v. Robert (1999) 4 NWLR (Pt 597) page 126; Opia v. Ibru (1992) 2 NWLR (Pt 231) page 658 it was held that where time is prescribed by statute to do anything relating to election petition and the time limit allowed or permitted is not complied with the court purporting to exercise jurisdiction outside the period has gone on an unworthy pursuit of its own.
In this appeal where the Notice of appeal was filed 76 days instead of 21 days after the election petition Tribunal delivered its judgment, the appellant has failed to comply with the provisions of the relevant Rules regulating his conditions of appeal. The appellant has surely failed to bear in mind that the
“Jurisdiction to hear an election is of a very special nature which does not carry with it the ordinary incidence of appeal in an ordinary civil case.”
Ojo v. Abegunrin (1989) 5 NWLR (Pt 120) page 162; Ndu v. Onaguluchi (No.1) (1999) 11 NWLR (Pt 625) page 152 in the case of Balogun v. Odumosu (1999) 2 NWLR (Pt 592) page 590 the court held that:
“It is in the intention of the legislators that parties stick strictly to the times stated in the Decree. The court would not aid any one who decided to sleep only to wake up when it is too late.”
The appeal filed here on the 1st of September 2003, though judgment was delivered by the Election Petition Tribunal on the 14th of June 2003 had elapsed by afflux ion of time and this court has no jurisdiction to hear it as there is no application to extend the time for filing of same. Application filed before this court on 17th February 2004 seeking an order for leave of court to amend ground 3 of the Notice of Appeal is incompetent as there is no such Notice of Appeal before this court. The application is accordingly struck out. I abide the consequential orders in the lead Ruling.
ALBERT GBADEBO ODUYEMI, J.C.A.: Following the conduct by the 3rd Respondent throughout Nigeria on 19th April, 2003 of Governorship elections into the 36 States in the Federation of Nigeria, the applicant herein, who was not a candidate at that election filed an election Petition challenging the nomination by his political party, the 2nd Respondent of the is Respondent to the 3rd Respondent as a candidate of the 2nd respondent for the election.
The ground of his complaint was that he remained the duly nominated candidate of the 2no Respondent for the Governorship election.
Therefore, he prayed the Election Tribunal that it be determined that the 1st Respondent:
“1). Was at the time of the Election not qualified or disqualified from being presented as a candidate for the April 19th 2003 Governorship Elections.
2). That the petitioner was validly nominated but was unlawfully excluded from the Elections.
3). That the petitioner may have such further or other orders as may be just.”
Thereafter 1st respondent filed before the relevant Governorship Election Tribunal a Notice of Preliminary objection praying the Tribunal inter alia to dismiss or strike out the said petition on the Grounds that –
“a) The petition is grossly incompetent and this Honorable Tribunal does not have the jurisdiction to entertain same.
b) The petition is not in accordance with the provisions of part vii of the Electoral Act and/or the provisions of the 1st Schedule to the Electoral Act.”
The learned Election Tribunal heard arguments from learned counsel representing the parties.
In a considered ruling, the tribunal held as follows:
“Section 133(1) of the Electoral Act,2002 states the categories of people entitled to take advantage of the provisions of the Act. It provides as follows:
‘(1) An election petition may be presented by one or more of the following persons –
(a) a candidate at an election:
(b) a Political Party which participated at the election.’
Apart from the fact that the Petitioner/Respondent was not a candidate at the said election the issue in respect of which he is seeking the intervention of the tribunal took place before the conduct of the Governorship election on 19th April, 2003. This Tribunal can therefore not assume jurisdiction in respect of it: Madiaga-Erhaeb v. I.N.E.C.(1999) 12 N.W.L.R. (Pt.630) 288 at p.299; Ibrahin v. I.N.E.C. [1999] 8 N.W.L.R. (pt.614) 334; Adebiyi v. Babalola (1993) 1 N.W.L.R. (Pt.267) 1 at pp. 10 – 11. It is for this reason that this tribunal holds that this Petition lacks any merit whatsoever and it should therefore be struck out. It is therefore consequently struck out”
Following that decision, which was given by the Tribunal on 14th June, 2003, the applicant felt dissatisfied and filed in the Registry of this Court on 1st September, 2003 a Notice of Appeal containing 3 Grounds whereby appellant challenged the decision of the Lower Tribunal to strike out his petition.
Later, by a Motion on Notice filed on 17th February ,2004 appellant sought leave of this Court to amend one of the Grounds contained in the Notice of Appeal filed by him When the application came for hearing in this Court, the Court suo moto invited Counsel for the parties to address it on the competence of the appeal having regard to the fact that the Ruling of the Election Tribunal was given on 14th June, 2003 while the Notice of Appeal to this Court was filed on 1st September, 2003.
The appellant/applicant who appeared in person sought a short adjournment to enable him prepare to address the Court.
The adjournment was granted. At the resumed hearing learned Counsel addressed as follows:
Chief A. Owuru – the appellant/applicant submitted that the appeal was filed within time under the relevant statutory provisions, which are –
“(1) The Electoral Act, 2002
(2) 5.25 of The Court of Appeal Act and
(3) The Constitution of The Federal republic of Nigeria 1999.
Chief Owuru contends that no provision of the Electoral Act,2002 specifically provides a time limit for appeals to be brought to the Court of Appeal in respect of an election matter. In this connection learned Counsel discussed the provisions of SS.138 (1) and (2); S. 139 of the Electoral Act as well as paragraph 51 of the 1st Schedule to the Electoral Act and submits that in the event recourse must be had to the provision of S. 25 of the Court of Appeal Act which stipulates a period of 14 days and 3 months respectively in respect of Appeal brought to the Court of Appeal on interlocutory decision and final decisions of Court lower to the Court of Appeal from which appeals lie to the Court of Appeal under the provisions of the 1999 Constitution.
Applicant relies on:
(1) P. D. P. v. I.N.E.C. (2003) 3 SC. W.L.R. Pt. 8 p.42
(2) Ebolam v. Ekweinben & Sons Trading Co. Ltd. (1999) 10 N.W.L.R. Pt.622 P.247
on his contention that an appeal filed in the Court of Appeal on 1st November, 2003 in respect of a decision of the Election Tribunal giver on 14th June, 2003 was filed within 3 months of the decision and is therefore competent.
Mr. Okoye of Counsel for the 1st and 2nd Respondents submitted as follows:
S.25 (1) of the Court of Appeal Act relating to Rules of Practice and Procedure on appeals ate made under the provisions of S. 248 of the Constitution of the Federal Republic of Nigeria 1999 and that these rules including Practice Directions made thereunder by the President have constitutional authority.
Consequently, learned Counsel submitted that this appeal, which was filed beyond the time limit, provided by the Practice Directions issued by the Hon. President of the Court of Appeal is incompetent and ought to be struck out.
He relies on:- SS. 2a6 (1)(b); 2S5 (1); (3) and the 6th schedule to the 1999 constitution as well as:-
(i) Awrue v. Odili [2003] 18 NWLR Pt. 851 p. 116
(i) Sanusi v. Ayoola (1992) NWLR Pt.263 p.275.
Learned counsel M. Dappa Addo for the 3rd Respondent submitted that –
A right of appeal is not a fundamental right but a constitutional right which must therefore exercised in accordance with constitutional or statutory provisions governing the exercise of such right.
(i) Enesan v. Sanusi [1984] 1 SC N. L. R. 353
(ii) The Queen v. Resident, Ijebu Province [1959] W.N.L.R.87 @ 91
(iii) Moses v. Ogunlali (1975) 4 SC 81 @ 84.
Accordingly, that where the time stipulated in the relevant statute for filing an appeal has lapsed, the Appeal Court would have no jurisdiction to entertain the appeal.
He relies on Adeleke v. Cole [1961] 1 All N. L. R. p.35.
It is the further argument of learned Counsel for the 3’d respondent that both SS.138 and 139 of the Electoral Act and together with the 1st Schedule to the Act as well as the Court of Appeal Rules and Practice Directions of 2003 which were made by the Honourable President of the Court of Appeal by virtue of S. 8 (2) of the Court of Appeal Act have limited the time within which an appeal to the Court of Appeal from a decision of the Electoral Tribunal to 21 days from the date of the decision sought to be appealed against whether that decision is interlocutory or final.
He therefore contended that the appeal in this case having been brought beyond the 21 days stipulated by both the Electoral Act 2002 and the Practice Directions is incompetent and being incompetent this Court would have no jurisdiction to entertain the appeal.
He urged the Court to strike out the appeal.
In reply Chief Owuru contended that by inviting the attention of the Court to Paragraph 51 of the 1st Schedule to the Electoral Act, 2002 learned Counsel is tying to make the Court to create an urgency which does not infact exist.
It is settled law that time is of the essence in election petitions. Therefore when time is limited for a proceeding, failure to comply is usually fatal – Malah v. Kaenallah (1999) 3 NWLR Pt.594 p. 309.
There are two sets of statutory provisions relied upon by Counsel in their respective addresses in this Court.
Speaking broadly one set of statutes are statutes of general application while the other set of statutes are statutes of specific application to elections.
The 1st set of statutes i.e. those relating to general provisions are the following:-
“(a) The 1999 Constitution of the Federal Republic of Nigeria, Section 4 (4) (5); 240; 243 and 248
(b) The Court of Appeal Act SS.8 (1); 25 (1)
(c) Court of Appeal Rules.
On the other hand, the following which constitute the second set of legislation may be said to contain specific legislation – in particular legislation dealing with matters relating to election petition, election tribunal and specific proceeding relating thereto – They are –
(a) The 1999 Constitution of the Federal Republic of Nigeria SS.4(2), (3); 285, Item 22 of Part 1 of the 2nd Schedule – Exclusive Legislative List and the 6th Schedule to the Constitution.
(b) The Electoral Act, 2002 SS.131; 737, 138, 139 and the 1st Schedule – Para 51.
(c) Court of Appeal Act S.8 (2) and 25 (2).
(d) Court of Appeal Rules Order 7 Rule 7.
(e) The Practice Direction No’ 2 of 2003
The sum total of the distinction which I have drawn between general legislation and specific legislation in the list immediately proceedings that whereas the general legislations relate to constitutional matters upon which the National Assembly share with State Houses of Assembly concurrent legislative powers, as well as general Federal legislations, the specific legislations referred to in this list relate to those matters in respect of which the National Assembly are required to legislation specifically under item 22 Part 1 of the Exclusive Legislative Powers i.e.-
“Election to the offices of President and Vice President or Governor and Deputy Governor and any other office to which a person may be elected under this Constitution excluding election to a local government council of any officer in such Council.”
Under this list come provisions relating to Election Tribunals – Sec. 285 which has given exclusive original jurisdiction to election petitions relating to the offices of Governor and Deputy Governor and other offices to which the Act relates including the Provisions of the 6th Schedule which deal with the composition of the tribunals.
Similarly, whereas the Court of Appeal Act deals in General with the subject of appeals from subordinate Courts from which a right of appeal lie, the provisions relating to election petitions and appeals from the Election Tribunals set up to try them contained in the Electoral Act, 2002 relate to specific matters on elections and election petitions and appeals; thereon.
What I am trying to say is that it is trite that – it is a rule of statutory interpretation that provisions in a particular statute on a specific matter would be given priority over conflicting provisions in a similar statute of general application – Generalibus non specialibus derogare potest.
It therefore appears to me that learned Counsel for the 3rd respondent struck the right cord on this subject in his address on this matter when he submitted that the provisions of 21 days in SS. 138 of the Electoral Act as well as in the Practice Directions 2003 given by the President having regard to the need for urgency on electoral matters contained in paragraph 51 of the 1st Schedule to the Electoral Act would take precedence over the conflicting provision of 14 days or 3 months for interlocutory or final appeals contained in S. 25 of the Court of Appeal Act.
In this connection, it is to be pointed out that the appellant/applicant has already drawn this distinction with respect to this appeal in that rather then filing Notice of his appeal in the Registry of the Lower tribunal as would have been applicable Order 3 Rule 2 of the Court of Appeal Act if he seriously contended that the Court of Appeal Rules had precedence over the corresponding provisions of the Practice Directions issued by the President of the Court of Appeal in cases of conflict on election matters he chose to file his Notice of Appeal in the registry of this Court as required by the Practice Directions.
It is particularly instructive in this matter to quote the rights of the parties given by S. 138 of the Electoral Act to which this Court at its Abuja Division has given effect in an unreported case which came before it in that Division –
S. 138 provides –
“(1) If the Electoral Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, and if notice of appeal against that decision is given 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the determination of the appeal.
(2) If the Election Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the expiration of the period of 27 days within which an appeal may be brought.”
In that case, the P. D. P. a political party sponsored a candidate at an election whose election was questioned before Election Tribunal.
Before the decision of the tribunal was given, the successful P. D. P. candidate had died. The decision of the Election Tribunal was in favour of the Petitioner who had challenged the victory of the deceased candidate. Two days after the expiration of the 21 days stipulated in S. 138 of the Electoral Act, 2002, the P.D.P. brought an application to the Court for leave to appeal as an interested party against the decision of the Election tribunal. It was held that the right of the successful petitioner before the tribunal had become vested after 21 days of the decision of the Tribunal since no appeal against that decision had been lodged in the Court. Therefore the Court of Appeal had no discretion to interfere with the vested right of the petitioner who had been declared victorious by the Election Tribunal.
In the circumstances of this appeal, I hold that the Notice of Appeal having been filed in Court after the 21 days allowed by the Electoral Act, 2002 and the Practice Directions issued by the Honourable President of the Court of Appeal, the right of appeal, if any of the applicant had lapsed.
Consequently, this Court has no jurisdiction to entertain the appeal.
For these and the fuller reasons contained in the lead Judgment of my learned brother,
MUHAMMAD, J. C.A., which I had the privilege to read before now, I too hold that the appeal is incompetent. I strike it out.
AMIRU SANUSI, J.C.A.: The ruling just rendered by My Learned Brother Muhammad J.C.A. was made available to me before now. Having perused same, I am in entire agreement with his reason and conclusion that the appeal filed by the appellant/applicant having been filed out of time and having lot sought and obtained leave of this court deserves to be struck out.
At any rate, just for purpose of emphasis, I wish to add a word of mine. When the learned counsel for the appellant/applicant Chief A. Owuru who appeared in person sought for this courts permission to argue his appeal on 17/2/2004, this court on noticing that the said appeal was filed on 1st of September 2003 it suo moto ordered the parties counsel to address it on the competence of the appeal in view of the fact that the ruling of the lower tribunal being appealed against was delivered on the 14th June 2003 and there being no application by the counsel for extension of time to file the same. All the parties counsel agreed for adjournment to today 18/2/2004 to address the court on the issue it raised suo moto on the competence or otherwise of the appeal.
In his submission the learned applicant argued that his appeal was competent as the Notice and Ground of Appeal he filed on 1/9/03 was filed within time by virtue of the provisions of the Electoral Act 2002, section 25 of the Court of Appeal Act and the constitution of the Federal Republic of Nigeria of 1999. He submitted that the Electoral Act failed to specify any period within which to appeal against the decision of an Election Tribunal to the court of Appeal. In that regard, he submitted that regards must be had to the provisions of Section 25 of the Court of Appeal Act which provides three months as period within which an appeal can be lodged to this court on finally decision of a trial court/tribunal and that he filed the appeal within two and half months. On this submission he cited and relied on the cases of PDP VS. INEC (2000) 3SC LR (pt. 8) 424 at 441; Ebokan Vs. Ekwenibe & Sons (1999) 10 NWLR (Pt.622) 242 at 243.
Mr. Mike Okoye of learned counsel for the 1st and 2nd Respondent in his address on the issue submitted that the appeal filed by the applicant was incompetent as the Notice of Appeal was filed out of time and should be dismissed. He argued that Section 25 of the Court of Appeal Act provides that appeal should be in such manner as directed by the rules of court. He also submitted that Section 248 of the 1999 constitution gives the President of the court of Appeal to make rules regulating the practice and procedure of this court which includes issuance of practice direction and that the president pursuant to the powers given to him by the constitution had issued practice direction stipulating time within which an appeal against decision of Election or election petitions can be filed. He referred to Awuse Vs. Odili (2003) 18 NWLR (pt.857) 116 he also submitted that on the procedure which includes issuance of practice direction. The President pursuant to the powers given to him by the constitution had issued practice direction stipulating time within which an appeal against decision of Tribunal on can be filed. He referred to Awuse Vs. Odili (supra).
Also in his address, Mr. Daapa Ada of counsel for the 3rd Respondent submitted inter alia, that section 138 of the Electoral Act 2002 and Practice Direction No. 2 issued by President of the Court of Appeal limits the time within which an appeal from any decision of Election tribunal can be filed. He said since the applicant’s appeal was filed two and half months after the delivered of the ruling, it can be said to have been filed out side the time permitted by the Electoral Act read with the Practice Direction and is therefore incompetent. He urged this court to strike it out.
There is no gainsaying that all parties to this case agreed that this appeal was filed on 1/9/2003 while the decision sought to be appealed against was delivered by the lower tribunal on 14/6/2003. It has also been conceded by all the parties that there was no application by the applicant/appellant for extension of time within which to file this appeal.
The President of the Court of Appeal pursuant to the powers conferred upon him by the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria of 1999, Section 8(2) of the Court of Appeal Act of 1976 and Section 137 of the Electoral Act 2002 on the 5th day of April, 2003 issued Practice Direction No. 2 of 2003 wherein he limited the period of filing appeal against the decision of any election tribunal to twenty one days from the date such decision being appealed against was delivered.
Admittedly, right of appeal from decision of an election tribunal is a constitutional one since by virtue of the provisions of section 246(1) (b)(ii) of the 1999 constitution an appeal to this court against the decision of the National Assembly/Governorship and Legislative Houses election Tribunal is as of right. See Awuse Vs. Odili (supra) Khalil vs. Yar Adua (2003) 6 NWLR (Pt 847) 446 at 488. It needs however to be emphasized here that in such exercise of such constitutional right of appeal,, the appellant must strictly comply with the provisions of the Electoral Act 2002 as well as the constitution and rules of this court and Practice Direction issued by the president of this court vide the powers conferred on him to issue such direction by the 1999 constitution. See .Ajasin Vs. Sanusi (1984) 1 SCNLR 353.
Failure to comply with this statutes in filing appeal could in my view, render an appeal incompetent. Perhaps the only escape route that can make the appeal competent is where the appellant seeks and obtains leave to file the appeal out of time. But where such leave which is a prerequisite to sustain the appeal, is not sought and obtained the court shall and indeed must strike it out. See Sanusi Vs. Ayoola (1992) 1 NWLR (Pt 263) 275 at 330.
Now since the applicant has not complied with the provisions of the Electoral Act 2002, the Rules of this court and the Practice Direction and indeed the constitution of the land in filing this appeal within the period stipulated by these statutes, failure to seek leave for extension of time within which to file the instant, appeal then the appeal is incompetent and invalid. It deserves to be struck out. I must by way of conclusion say that election petition proceeding has its own peculiarity. It being governed by the Electoral Act, needs to be disposed of with maximum urgency so that the parties know their fates and the governed know their true and genuine leaders or representatives to whom they give their actual mandate to govern or represent them. Time to dispose of election petitions and appeal is also of great essence. Since election petitions and their appeals need to be disposed of with minimum of delay, that perhaps inform the abridgment of time to file appeals by aggrieved parties as provided in the practice direction issued by Hon. President of this court.
Thus, for the fuller and more detailed reasons contained in the lead ruling with which I am in entire agreement, I too adjudge the appeal as incompetent. It should be and is accordingly struck out by me.
I also abide by the consequential order made in the lead ruling including one on costs.
Appearances
Appellant in person.For Appellant
AND
Mike Okoye with Princess Ajudua
S. R. Dappa-Addo for the 3rd RespondentFor Respondent
