OKAFOR OKOREAFFIA & ANOR V. HON. AGWU U. AGWU & ANOR (2010)

OKAFOR OKOREAFFIA & ANOR V. HON. AGWU U. AGWU & ANOR

(2010)LCN/3984(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of July, 2010

CA/PH/668/2008

RATIO

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 149 OF THE ELECTORAL ACT 2006 AS TO THE TIME WITHIN WHICH TO APPEAL OR CROSS-APPEAL IN RESPECT OF A JUDGMENT IN AN ELECTION PETITION

The time within which to appeal or cross-appeal in respect of a Judgment in an election petition is provided for in the Electoral Act Section 149(1) of the Electoral Act, 2006 states:- “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.” Going by the provisions of Section 149(1) of the Electoral Act, 2006, the time within which an appeal may be filed is fixed at 21 days. Further, by Practice Direction No. 2 of 2007 made pursuant to the provision of the Electoral Act, 2006, it is clearly provided that at paragraph 1 that “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.It is clear from the provisions of the Electoral Act, 2006 and Practice Direction No. 2 of 2007, the period allowed by the law for filing an appeal in respect of Judgments of Election Petition Tribunal is 21 days and there is no provision whatsoever made in the Electoral Act for extension of time to appeal or cross appeal. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.

EXTENSION OF TIME TO FILE AN APPEAL: WHETHER ONCE THE TIME TO APPEAL OR CROSS APPEAL IN RESPECT OF A JUDGMENT IN AN ELECTION PETITION HAS ELAPSED, IT CANNOT BE EXTENDED

It is also clear that once time to appeal or cross appeal in any matter subject to Section 149 of the Electoral Act, 2006 has elapsed; it cannot be extended for any reason. Section 149 of the Electoral Act, 2006 is akin to Section 141 of the Act once the time for presenting petition has elapsed, it cannot be extended likewise once the time for filing an appeal in respect of decision of an Election Petition Tribunal has elapsed, it cannot be extended .These acts are strictly regulated by the provisions of the Electoral Act, therefore reference made to paragraph 51 of the first schedule to the Electoral Act 2006 is of no moment in this application. This is because the provision expressly made the practice and Procedure of this Court “subject to the provisions of the Act” by using the words “subject to the Provisions” instead of notwithstanding the provisions” of the Act, the legislature made it very clear that the practice and procedure of this honourable Court is subject to and cannot override the express provisions of the Electoral Act. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

1. OKAFOR OKOREAFFIA
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)

AND

1. HON. AGWU U. AGWU
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 175TH ORS. Respondent(s)

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: (Delivering the leading Ruling): By a Motion on Notice dated 11th January 2010 and filed on 20th January 2010, the 2nd to 176th Respondents sought for the following orders:-
1. An Order enlarging the time within which the 2nd to 176th Respondents/Cross Appellants/Applicants can seek leave to cross appeal against a part of the decision of the lower Tribunal dated 14th day of November, 2008.
2. An Order enlarging the time within which the 2nd to 176th Respondents/Applicants can cross appeal against part of the Judgment of the lower Tribunal in this Petition dated 14th November 2008.
3. An Order granting the 2nd to 176th Respondents/Applicants leave to cross-appeal against part of the said judgment of the lower Tribunal dated 14th November, 2008 dismissing the objection to the Jurisdiction of the lower Tribunal to entertain this petition for being incompetent and for being presented outside the statutory period.
4. An Order deeming the 2nd to 176th Respondents/Applicants Notice of Cross Appeal hereto annexed and marked as Exhibit A as properly filed.
5. An Order deeming the 2nd to 176th Respondents/Cross Appellants/Applicants Brief of Argument also filed with this application as properly filed and served.
6. An Order giving such directions as may be reasonably necessary to enable the Honourable Court fully exercises its general powers in the determination of the substantive appeal and cross-appeal.
7. And for such further and other Orders as the Honourable Court may deem fit to make in the circumstances.
The motion is supported by a 20 paragraphs affidavit deposed to by Alex Christian Ogolo Esq.
In Opposition to the motion, the Appellants/Respondents filed a counter affidavit of 6 paragraphs deposed to by Okafo Okoreaffia.
By the order of this Court the parties were directed to file written addresses in respect of the motion.
The Applicants’ written address is dated 12/2/10 and filed on 15/2/10.
The Applicants also filed a Reply on points of law dated 16/3/10 and filed on 19/3/10; learned Counsel to the 2nd to 176th Respondents/Applicants adopted the two written addresses as argument in respect of the application and urged the Court to grant the application.
The Appellants/Respondents through his Counsel filed a written address dated 24/2/10 and filed on 25/2/10. Learned Counsel to the Appellant adopted the written submission and urged the court to dismiss the application.
Counsel to the 1st Respondent informed the court that he is not opposing the application.
In his written address Counsel to the 2nd to 175th Respondents/Applicants identified the following issues for determination.
a) Whether the Applicants can at this stage raise the issue of Jurisdiction to entertain the Petition.
b) Whether it is in the interest of Justice to grant this application.
Learned Counsel to the Applicants/Respondents also identified two Issues for determination which are stated thus:
1 – Whether this Honourable Court has powers and Jurisdiction to extend time to file an appeal or cross appeal in respect of a Judgment in an Election Petition.
2 – Whether assuming (without conceding) that the Honourable Court has such powers the applicants herein have made a case on the merits.
In my view, the only issues that call for determination in this application are stated thus:-
Whether this Honourable Court has powers and Jurisdiction to extend time to file an appeal or cross appeal in respect of a Judgment in an Election Petition.
In his written address, learned Counsel for the Applicants submits that Issues of Jurisdiction can be raised as this stage, that this is so because it is now trite that the issue of Jurisdiction can be raised for the first time on Appeal and if raised at any stage of proceedings, the Court has a duty to consider same, reference made to FEDERAL COLLEGE OF EDUCATION (SPECIAL) OYO V. CHIEF AKIN AKINYEMI 2008 15 NWLR (PT. 1109) 24 AT 47; EJORKELE V. NWAFOR (2008) 15 NWLR (PT. 1110) 418; WEST MINISTERS BANK LIMITED V. EDWARDS (1942) A.C.529 AT 536.
Counsel to the Applicants contends that in the final Judgment of the honourable Tribunal delivered on 14th day of November, 2008, the Court considered the issue of the competence of the petition; specifically on the same being statute barred and held that same was not statute barred. Further, counsel contends that this decision of the honourable Tribunal goes to the root of the power of the honourable Tribunal to entertain the petition and delivered Judgment on same, flowing from same by extension is the power of this honourable Court to entertain the appeal; reference made to MADULOLU V. NKEMDIRIM (1962) ALL NLR, 581; UBA V. ETIABA (2008) 6 NWLR (PT. 1082) 154 AT 223; ATIKU ABUBAKAR V. YARADUA & ORS. (2008) 1 SC PT. 211 77 AT 99; NKEIRO ONYEJIOCHA & ORS. V. UCHE MADUAKO in Appeal CA/PH/EPT/54/2007; UDOMA V. ARUNSI (2009) 17 NWLR (PT. 1170) 310.
That the Court in considering whether to extend time within which the Applicant may appeal on a ruling touching on the competence of the petition which is an issue of Jurisdiction stated clearly that in such matters of Jurisdiction, it is appropriate to allow same to be taken so that the issues can be resolved once; reference made to FADIORA V. GBADEBO & ANOR (1978) NSCC VOL. 11 121 AT 133.
That this Court being one of last resort to such election petition appeals Counsel to the Applicant urged the Court to resolve this Issue in favour of the Applicant and grant this application.
In reply to the submissions of the Applicant, learned Counsel to the Appellant/Respondent submits that time within which to file an appeal or cross appeal to this honourable Court against a Judgment in an Electron Petition is fixed at within 21 days from the date of the said Judgment by Section 149 of the Electoral Act 2006. That the Electoral Act is a statute not a Rule of Court, Procedure or Practice. The Electoral act does not legislate for the extension of time limited by it for bringing appeals or cross-appeals to the Court of Appeal in respect of Judgments of Election Tribunals nor does any other act or Law so legislate, learned Counsel to the 1st Appellant/Respondent, referred to Order 7 Rule 10 of the Court of Appeal Rules and paragraph 51 of the First Schedule to the Electoral Act, 2006 and submits that the Powers and Jurisdiction of this honourable Court to extend time is by the provisions of its own Rules and clearly limited to situations where the time sought to be extended was limited try the Rules of Court. That that is not the case here. The 21 days within which an appeal may be filed is fixed by the Electoral Act, 2006. That the Act did not give this honourable Court powers to extend that time. Being legislation, it can only be amended by legislation by the National Assembly.
In reply on points of law, Counsel to the Applicants submits that Section 149 of the Electoral Act does not apply to this appeal and the application for extension of time to cross appeal. That the Section comes into play only when a party is declared the winner of an election and the honourable trial Tribunal in an election petition nullifies his election. The law allows him to continue in office on grounds of public policy and legislation until the appellate procedure is concluded.
In this application the sole Issue for determination is whether this honourable Court has Powers and Jurisdiction to extend time to file an Appeal or Cross Appeal in respect of a Judgment in an Election Petition. The time within which to appeal or cross-appeal in respect of a Judgment in an election petition is provided for in the Electoral Act Section 149(1) of the Electoral Act, 2006 states:-
“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.”
Going by the provisions of Section 149(1) of the Electoral Act, 2006, the time within which an appeal may be filed is fixed at 21 days. Further, by Practice Direction No. 2 of 2007 made pursuant to the provision of the Electoral Act, 2006, it is clearly provided that at paragraph 1 that “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.”
It is clear from the provisions of the Electoral Act, 2006 and Practice Direction No. 2 of 2007, the period allowed by the law for filing an appeal in respect of Judgments of Election Petition Tribunal is 21 days and there is no provision whatsoever made in the Electoral Act for extension of time to appeal or cross appeal.
It is also clear that once time to appeal or cross appeal in any matter subject to Section 149 of the Electoral Act, 2006 has elapsed; it cannot be extended for any reason. Section 149 of the Electoral Act, 2006 is akin to Section 141 of the Act once the time for presenting petition has elapsed, it cannot be extended likewise once the time for filing an appeal in respect of decision of an Election Petition Tribunal has elapsed, it cannot be extended .These acts are strictly regulated by the provisions of the Electoral Act, therefore reference made to paragraph 51 of the first schedule to the Electoral Act 2006 is of no moment in this application. This is because the provision expressly made the practice and Procedure of this Court “subject to the provisions of the Act” by using the words “subject to the Provisions” instead of notwithstanding the provisions” of the Act, the legislature made it very clear that the practice and procedure of this honourable Court is subject to and cannot override the express provisions of the Electoral Act.
In the light of what I have stated above I find no merit whatsoever in this application and it is accordingly dismissed in its entirety.