ADEBISI ADEGBUYI ESQ & ANOR. v. HON. RAMONI OLALEKAN MUSTAPHA & ORS.
(2010)LCN/3719(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of April, 2010
CA/I/EPT/OG/NASEN/99/08
RATIO
INTERPRETATION: PROVISION OF SECTION 149 IN RELATION TO TIME FOR APPEALING THE DECISION OF THE ELECTION TRIBUNAL
Section 149 (1) & (2) of the Electoral Act provides:
149 (1) If the Election Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, then, if notice of appeal against that decision is given within 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 21 days within which an appeal may be brought. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
INTERPRETATION: CONSTRUING SECTION 138 OF THE ELECTORAL ACT 2002 AND SECTION 149 OF THE ELECTORAL ACT 2006
In the case of Buhari Vs Obasanjo (2005) 13 NWLR (941) 1 at 179 B – H, the Supreme Court, in construing Section 138 of the Electoral Act 2002, which is in pari materia with the provision of Section 149 of the Electoral Act 2006, recognized the fact that the said Section does not provide for a situation where the challenge to the return of the elected candidate was unsuccessful or where a petition is dismissed in limine without a determination as to whether the returned candidate was validly elected or not. His Lordship, Uwais, CJN (as he then was) after setting out the provisions of Section 138 (1) and (2) of the Electoral Act 2002, held at page 170 G – H:
“It could be seen that Section 138 of the Electoral Act is concerned with a situation where the decision of a tribunal or court has been given against a candidate, who has been returned as elected declaring that such candidate has not been validly elected. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
1. ADEBISI ADEGBUYI ESQ.
2. ACTION CONGRESS Appellant(s)
AND
1. HON. RAMONI OLALEKAN MUSTAPHA
2. PEOPLE?S DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 1234 ORS Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Ruling ): This is a motion on Notice dated the 29th January, 2010 and filed on the 1st February, 2010. Arguing the motion, Counsel for the Applicant, Otunba Kalejaiye SAN said it is brought under paragraph 1 of the Practice Direction No. 2, 2007, Order 6 Rule 6 of the Court of Appeal rules 2007 and under the inherent powers of this Court. The application prays for an order to strike out the Notice of Appeal in the main matter dated the 7th May, 2008 and filed on the 8th May, 2008 and any appeal based on it. The grounds for the application are that the Notice of Appeal was filed out of time i.e. outside the 21 days allowed by law under paragraph 1 of the Practice Direction No.2, 2007 and further that this Court lacks jurisdiction to entertain any appeal based on the incompetent Notice of Appeal. The Application is supported by a 6 paragraph affidavit. Attached are two exhibits – ‘AA’ and ’88’. Exhibit ’88’ is the Registrar’s statement while exhibit ‘AA’ is the Notice of Appeal. Counsel relied on the supporting affidavit especially paragraphs 4 and 5. He referred to the counter affidavit dated the 9th February 2010 and filed same day. Otunba Kalejaiye submitted that the deposition in paragraph 5 of the counter affidavit is a clear admission that the Notice of Appeal was filed on the 8th May, 2008 despite the use of the word ‘mysterious’. He submitted also that what could have resolved that mystery is for the Appellant to attach the treasury receipt issued to him for the filing of the Notice of Appeal and this the Appellant did not do. Learned Senior Counsel further submitted that this Court should invoke the provisions of section 149(d) of the Evidence Act to the effect that if he had produced the receipt it would have worked against him. He urged this Court to hold that there is no mystery in the filing of the Notice of Appeal by the Appellant.
Regarding the interpretation of paragraph 1 of the Practice Direction No. 2 of 2007, Counsel referred this Court to OLAWEPO V. SARAKI (2009) ALL FWLR PART 498 page 256 esp 316-317. It is the Applicant’s contention that judgment was delivered on the 11th April, 2008 and the 21 days enjoined by law started to run from the 17th April 2008. It included the 11th April, 2008 and that according to Applicant’s Counsel is the judicial interpretation of the word ‘within’ in paragraph 1 of the Practice Direction NO.2 of 2007.
According to learned senior Counsel for the Applicants this Ibadan Division of the Court of Appeal very recently had cause to pronounce again on paragraph 1 of the Practice Direction 2007 in the unreported decision in MUDASHIRU OYETUNDE HUSSEIN V. ISIAKA ADETUNJI ADELEKE & ORS Appeal No. CA/I/EPT/NA/69/08 delivered on the 17th December, 2009. Counsel submitted that 21 days reckoned from the 17th April, 2008 will bring the 21 days to the 7th May, 2008 and therefore a Notice of Appeal filed on the 8th May, 2008 would have been filed on the 22nd day – out of time.
Learned senior Counsel urged this court to follow that judgment in striking out the Notice of Appeal.
Responding, Mr. Taiwo Kupolati urged this Court to dismiss the application. He submitted that what is in issue is whether the Appellant is required to file their Notice of appeal within 21 days or within 3 months. Counsel referred to the preamble to the Practice Direction 2007. What is the effect of section 149 of the Electoral Act 2006, Counsel inquired? He went on to submit that the first specie of appeal to which section 149 of the Electoral Act relates is in effect of the decision made against a candidate returned by election by INEC. He contended that if the party returned whose election was invalidated by the election tribunal must appeal, he must do so within 21 days. The 1st Appellant Counsel said does not fall into that class. The 1st Appellant was not returned as the winner by INEC and his complaint at the election petition tribunal was also dismissed. In such a case all the authorities which have interpreted section 149 concur that the Appellant in this instance is entitled to 3 months within which he can appeal and not 21 days, Mr. Kupolati contended. The reason, he said, is that the party whose election was invalidated will only be entitled to remain in office if he files his appeal within 21 days.
That was the logic Counsel submitted. Mr. Kupolati further submitted that paragraph 1 of the Practice Direction does not exist in isolation to section 149. This issue Counsel said was the exact issue that was raised before this Court in the case of SIJUADE V. OYEWOLE Appeal No. CA/I/EPT/HA/78/08. Reference was also made to KAZEEM V. KOLA CA/I/EPT/HA/72/08 delivered on the 25th March 2009.
In these cases, Counsel said this Court was faced with a similar position. In these two decisions, it was held following the decision of the Supreme Court in BUHARI V. OBASANJO (2005) All FWLR PART 273 Page 1 at Pages 113-114 that section 149 does not regulate appeal filed by parties who were not returned in an election, Counsel submitted. The Court according to him also held that the Appellants in those two decisions were entitled to three months within which to file their appeal and their objections were dismissed. Counsel referred to pages 12-13 of SIJUADE’S case (supra). He further submitted that ADELEKE’s case (supra) and SARAKI’s case (supra) are distinguishable from this case.
Omoniyi Fayanju Counsel for the 3rd-1,234 Respondents aligned himself with arguments canvassed by Counsel to the Applicants. Otunba Kalejaiye replying on points of law submitted that BUHARI V. OBASANJO (supra) cited by Mr. Taiwo Kupolati was decided on the peculiar position of the Electoral Act 2002 and that the provision of paragraph 1 of the Practice Direction NO.2 of 2007 was not available at the time and as such BUHARI V. OBASANJO is not helpful in the determination of this issue. Learned senior Counsel submitted that section 149 of the Electoral Act is a peculiar provision of the Electoral Act 2006 with the sole aim of avoiding what Counsel referred to as ‘a political landscape of musical chairs, the provision being to protect the incumbent pending the determination of his appeal. Counsel further submitted that the Court of Appeal Act and the rules made thereunder were made by one and the same person – the President of the Court of Appeal. He further submitted that election appeals or election matters are sui generis and that the ordinary provisions applicable in court matters would not normally apply. Learned senior Counsel submitted that SIJUADE V. OYEWOLE (supra) was reached per incuriam and urged this court to strike out the Notice of Appeal.
I would imagine that the first thing to try to determine in the consideration of this application is when the Notice of Appeal was filed. Was it filed on the 7th May, 2008 or was it on the 8th May, 2008? Paragraph 5 of the supporting affidavit makes reference to two exhibits AA which is the Notice of Appeal while ‘BB’ is the Registrar’s statement. Exhibit AA is dated the 7th May, 2008 but no filing date is therein indicated.
However, the third and last paragraph of exhibit BB reads as follows:
”Being dissatisfied with the decision of this Honourable Tribunal (Election Petition Tribunal Abeokuta) delivered on the 17th April, 2008, the Petitioners/Appellants appealed to the Court of Appeal Ibadan Division, vide a Notice of Appeal dated the 7th May, 2007 and filed on the 8th May, 2008.”
Thus the Registrar’s statement on the issue of filing is that though the Notice of Appeal is dated 7th May, 2008, the said Notice of Appeal was filed on the 8th May, 2008. Respondent in paragraph 4 of his counter affidavit to the present application which he filed on the 9th February, 2010 stated as follows: ‘The Appellant’s Notice of appeal dated 7th May, 2008 was lodged and delivered to the secretary to the Election petition tribunal on 7th May, 2008 for filing and it was actually received and filed on the 7th May, 2008’ and went on to depose in paragraph 5 that it was quite mysterious to find that the said Notice of Appeal was endorsed as filed on the 8th May, 2008. What I find intriguing and deep food for thought is why in an electoral document of this nature where time is of the essence the filing date was not indicated on the notice of appeal. Nevertheless the Respondents upon filing of the Notice of Appeal must have been issued with a treasury receipt which bore the date of filing. They have certainly not denied not having been issued with one. I think that this is a clear case in which this Court will be right in invoking the provisions of section 149(d) of the Evidence Act and and I so hold that the Notice of Appeal dated 7th May, 2008 was filed on the 8th May, 2008.
Otunba Kalejaiye SAN has referred this Court to the requirement in paragraph 1 of the Practice Direction No. 2 of 2007 that the Notice and Grounds of Appeal be filed within 21 days from the date of the decision appealed against i.e. 21 days from the 17th April, 2008.
Mr. Kupolati for the Respondents has however referred this Court to the preamble to the Practice Direction 2007 and has submitted that what is in issue is whether the Appellants are required to file their Notice of Appeal within 21 days or within 3 months from the date of the decision appealed against. The preamble to the Practice Direction No. 2 of 2007 reads 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:-
It is very clear from this preamble that certain specie of appeals are not covered under the ambit of section 149 of the Electoral Act 2006.
What are the provisions of section 149 of the Electoral Act 2006? They are as follows-
149(1) – “If the Election Tribunal or the Court, as the case may be determines that a candidate returned as elected was not validly elected, then if notice of Appeal against that decision is given within 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.”
149(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 21 days within which an appeal may be brought.”
These provisions are clear and unambiguous. The appellant in the present appeal now being considered was not returned as the winner by the Independent National Electoral Commission and his complaint at the Election Petition Tribunal against the return of the 1st Respondent was dismissed. In that case the decision appealed against certainly does not come within the contemplation of section 149 of the Electoral Act. Section 51 of the 1st Schedule to the Electoral Act 2006 provides that in such cases recourse must be had to the practice and procedure relating to appeals in the Court of Appeal regard being had to the need for urgency in electoral matters. This is provided for under section 24(2)(a) of the Court of Appeal Act 2004 which provides that: “The periods for the giving of Notice of Appeal or Notice of Application for Leave to appeal are –
(a) In an appeal in a civil cause or matter fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”
See the unreported decision of this Court in ALABI A. KAZEEM V. OYEJIDE GBADEBO KOLA & ORS CA/I/EPT/HA/72/08 delivered on the 25th March, 2009.
In the above case Fasanmi (JCA) at page 11 of her lead ruling relied on the Supreme Court decision in BUHARI V. OBASANJO (2005) ALL FWLR (Pt.273) 1 at page 114 paras C-D where Uwais CJN(as he then was) had interpreted section 138 of the Electoral Act 2002 which is in pari material with section 149 of the Electoral Act 2006 thus:
“It could be seen that section 138 of the Act is concerned with a situation where the decision of a Tribunal or Court has been given against a candidate who has been returned as elected declaring that such a candidate has not been validly elected. With respect the opposite is the case in this appeal because the Court of Appeal had declared the 1st & 2nd Respondents/Cross-Appellant validly elected.
Therefore the provision of the section has no application here”.
Otunba Kalejaiye (SAN) cannot be correct in his assertion that BUHARI V. OBASANJO (supra) was based on the Electoral Act 2002 in so far as section 149 of the Electoral Act 2006 is in pari materia with section 138 of the Electoral Act 2002 relied upon in BUHARI V. OBASANJO (supra).
This point having been made Appellants would have 3 months from the 17th April, 2008 when the decision of the Election Petition Tribunal was delivered to file their Notice of Appeal inclusive of the 11th April, 2008 the actual date of delivery of the decision. See GBENGA TOYOSI OLAWEPO V. DR. BUKOLA SARAKI & 3 ORS (2009) ALL FWLR PART 498 page 256 at 317.
In conclusion I am of the firm view and do hold that the Appellant’s Notice of Appeal filed on the 8th May, 2008 is within the 3 months period allowed to so file. The application is therefore without merit and is dismissed. Parties are however to bear their own costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading in draft the ruling of my learned brother,S.S. ALAGOA, J.C.A just delivered. I agree with his reasoning and conclusion.
The issue in contention in this application is the applicability of Section 149 (1) of the Electoral Act 2006 to the present appeal.
The contention of the applicants is that the notice of appeal was filed outside the 21 days prescribed in paragraph 1 (1) of the Practice Direction No. 2 of 2007.
Before considering the provisions of Paragraph 1 (1) of the Practice Direction No.2 of 2007, it is necessary to consider the preamble thereto. It states that the Practice Direction is given by the President of the Court of Appeal for the purpose of appeals coming to the Court of Appeal under Section 149 of the Electoral Act 2006. ‘It is very specific. It follows that an appeal that does not arise from a determination that a person returned as elected was not validly elected would not be covered by the provision of paragraph 1(1) of the Practice Direction.
Section 149 (1) & (2) of the Electoral Act provides:
149 (1) If the Election Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, then, if notice of appeal against that decision is given within 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 21 days within which an appeal may be brought.
(Emphasis supplied)
In the case of Buhari Vs Obasanjo (2005) 13 NWLR (941) 1 at 179 B – H, the Supreme Court, in construing Section 138 of the Electoral Act 2002, which is in pari materia with the provision of Section 149 of the Electoral Act 2006, recognized the fact that the said Section does not provide for a situation where the challenge to the return of the elected candidate was unsuccessful or where a petition is dismissed in limine without a determination as to whether the returned candidate was validly elected or not. His Lordship, Uwais, CJN (as he then was) after setting out the provisions of Section 138 (1) and (2) of the Electoral Act 2002, held at page 170 G – H:
“It could be seen that Section 138 of the Electoral Act is concerned with a situation where the decision of a tribunal or court has been given against a candidate, who has been returned as elected declaring that such candidate has not been validly elected. With respect, the opposite is the case in this appeal because the Court of Appeal has declared the 1st and 2nd respondents/cross-appellants validly elected. Therefore the provisions of the section have no application here.
In the instant case, the appellants/applicants challenged the return of the 1st respondent as the validly elected candidate in the Senatorial Election held on 28th April, 2007. The petition was dismissed. In effect the 1st respondent was declared validly elected. This appeal therefore does not fall within the purview of Section 149 of the Electoral Act. It was in similar circumstances that the Supreme Court in Buhari Vs Obasanjo (supra) held that pursuant to paragraph 51 of the First Schedule to the Electoral Act, recourse must be had to section 27 (2) of the Supreme Court Act, which provided for three months within which to appeal against a final decision.
The decision in Buhari Vs. Obasanjo (supra) was followed in the cases of A.N.P.P. VS. R.E.C. AKWA IBOM (2008) 8 NWLR (1090) at 453C -536E; 541-542 D-C and the unreported decisions of this court in Sijuade Vs. Oyewole Appeal No. CA/I/EPT/HA/78/08 delivered on 25/3/09 and Kazeem Vs. Kola Appeal No. CA/I/EPT/HA/72/08 delivered on 25/3/09.
In Olawepo Vs. Saraki (supra), while responding to the preliminary objection to the cross-appeal, learned counsel for the cross-appellant raised the issue of the applicability of Section 149 of the Electoral Act to an appeal which is not against a determination that a candidate returned as elected was not validly elected. In that case, the cross-appeal was against part of the judgment wherein the court held that the schedule accompanying the petitioner’s counsel’s address formed part of the address. In resolving the issue, the court took the view that Paragraph 1(1) of the Practice Directions applies to every appeal against the decision of an election tribunal. The specific nature of the matter provided for in section 149 of the Act was not considered. The preamble to the Practice Direction was also not considered. This is where the decision in Buhari Vs. Obasanjo becomes applicable. I am of the respectful view that had their Lordships in Olawepo Vs. Saraki (supra) averted their minds to the particular situation covered by Section 149(1) of the Electoral Act, the decision on the competence of the cross-appeal would have been different. The application of Section 149 (1) was not raised or considered in the case of Hussain Vs. Adeleke CA/I/EPT/NA/69/08 delivered on 17/12/09. That case is therefore not applicable in the present case.
With regard to the contention of Otunba Kalejaiye, SAN that the authority of Buhari Vs. Obasanjo (supra) is inapplicable because it was decided based on the peculiar provisions of the Electoral Act 2002 and before the Practice Direction No.2 of 2007 was made, I am of the view that insofar as the Practice Direction states that it relates specifically to appeals coming to the Court of Appeal under section 149 of the Electoral Act 2006, the decision of the Supreme Court interpreting section 138 of the Electoral Act 2002 which is in pari materia with Section 149 of the Electoral Act, is relevant and applicable. This court is bound by that decision.
It must be observed here that the position regarding the applicability of Section 149 (1) to appeals not arising from a determination that a returned candidate was not validly elected, does not affect the settled position of this court on the computation of time in election matters. In effect what it means is that where recourse must be had to the provisions of the Court of Appeal Act, in reckoning the period of 14 days or three months from the date of the decision, the actual date on which the decision was made would be inclusive.
In the instant appeal, the appellant’s petition challenging the return of the 1st respondent was dismissed. The decision appealed against therefore does not came within the purview of section 149 of the Electoral Act. In the circumstances, by virtue of paragraph 51 of the First Schedule to the Electoral Act 2006 the practice and procedure relating to appeals in the Court of Appeal becomes applicable. By virtue of Section 24 (2) (a) of the Court of Appeal Act 2004, the appellants had three months from 17th April, 2008 within which to file their notice of Appeal. The notice of appeal filed on 5th May, 2008 was well within the three months period.
For this reason, I agree with my learned brother in the lead ruling that the notice of appeal filed on 8th May, 2008 is competent. I also hold that the application fails and is accordingly dismissed. The parties shall bear their respective costs.
CHIDI NWAOMA UWA, J.C.A:I read in advance the Ruling delivered by my learned brother S. S. Alagoa, J.C.A.
I agree with the reasoning and conclusion reached, in that the present case is outside the cases caught up by S. 149 of the Electoral Act, 2006, in that the 1st Appellant/Respondent was not returned as elected and his election invalidated by an Election Petition Tribunal or Court. This is to ensure that such a candidate files his appeal timeously within 21 days as provided by Paragraph 1 of the Practice Directions, 2007, to qualify such appellant to remain in office while waiting for the outcome of his appeal. See Sijuade v. Oyewole in Appeal No. CA/I/EPT/HA/78/08 delivered on 25/3/09 by this Court and Division.
I also dismiss the application and abide by the order awarding no costs.
Appearances
Otunba Kalejaiye SANFor Appellant
AND
Mr. Taiwo Kupolati.
Omoniyi Fayajoo Esq.For Respondent
