PEOPLES DEMOCRATIC PARTY v. KEBBI STATE INDEPENDENT ELECTORAL COMMISSION
(2019)LCN/13061(CA)
RATIO
APPEAL: RECORD OF APPEAL: WHEN A RECORD OF APPEAL IS NOT FILED WITHIN TIME AND LEAVE NOT SOUGHT TO FILE OUT OF TIME, THEN SUCH AN APPEAL WILL BE STRUCK OUT
This in effect presupposes that the Record of Appeal ought to have been compiled and transmitted to this Court on 18th October, 2017. From our records however, the Record was finally filed in this Court on 27th November, 2017 which was well after the period allowed by the Rules of this Court. No leave of either the Court below or of this Court was obtained to file such Record out of time. In consequence, the said Record of Appeal is adjudged incompetent and is hereby struck out. Accordingly, the Appeal is struck out for lack of diligent prosecution.PER ABDULLAHI MAHMUD BAYERO, J.C.A.
In The Court of Appeal of Nigeria
On Friday, the 7th day of December, 2018
CA/S/177/2017
Justice
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
Justice
PEOPLES DEMOCRATIC PARTYAppellant(s)
AND
KEBBI STATE INDEPENDENT ELECTORAL COMMISSIONRespondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A.(Delivering the Leading Judgment): This is an Appeal against the Judgment of Kebbi State High Court in Suit No. KB/HC/43/2017 delivered on 13th July, 2017. By an originating summons brought pursuant to Order 3 Rule 5 of the Civil Procedure Rules of Kebbi State High Court, the Appellants filed the Suit for the determination of:-
a) Whether by Part 2 (b) 3(a) & b of the 3rd Schedule of the 1999 Constitution of the Federal Republic of Nigeria, the Kebbi State Independent Electoral Commission can lawfully function and carry out any of its electoral function with less than its constitutionally required numbers.
b) Whether the Kebbi State Independent Electoral commissions guideline for the local Government Council general election 2017 made by the Kebbi State Independent electoral commission, is not null, void, illegal and of no any effect.
c) Whether Paragraph 4 i, j and k of the Kebbi State Independent electoral commission guideline for the local Government Council general election 2017 is not inconsistent with Section 106 of the 1999 Constitution of the Federal Republic of Nigeria.
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d) Whether by Paragraph 7 (8) of the Kebbi State Independent Electoral Commissions guideline for the local Government Council general election 2017 the 2nd, 3rd, 14th, 15th, 27th,28th, 40th, 41st, 52nd, 53rd, 65th, 66th, 82nd, 83rd, 94th, 95th,107th, 108th, 119th, 120th, 131th, 132th, 144th, 145th, 156th, 157th, 170th, 171st, 193rd, 194th, 195th, 196th, 207th, 208th, 219th, 220th, 257th, and 258th being the aspirants for the offices of the local Government Chairman and vice Chairman are required to deposit any non refundable nomination fees before the election.
The reliefs sought by the Appellants before the lower Court are contained at page 13 of the Record thus:-
a) A DECLARATION that by Part 2 (B) 3a & b of the 3rd Schedule of the 1999 Constitution of the Federal Republic of Nigeria, the Kebbi State Independent Electoral Commission cannot lawfully function and carry out any of its electoral function with less than its Constitutionally required members.
b) A DECLARATION that the Kebbi State Independent electoral commission guideline for the local Government Council general election 2017 made by the Kebbi State independent electoral commission is null, void, illegal and of no any effect.
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A DECLARATION that Paragraph 4 i, j and k of the Kebbi State electoral commission guideline for the local Government Council general election 2017 is inconsistent with Section 106 of the 1999 Constitution of the Federal Republic of Nigeria.
c) A DECLARATION that by Paragraph 7 (8) of the Kebbi State electoral commission guideline for the local Government Council general election 2017, the 2nd, 3rd , 14th, 15th, 27th, 28th, 40th, 41st, 52nd, 53rd, 65th, 66th, 82nd, 83rd, 94th, 95th, 107th, 108th, 119th, 120th, 131st, 132nd, 144th, 145th, 146th, 156th, 157th, 107th, 171st, 193rd, 194th , 195th, 196th, 207th, 208th, 219th, 220th, 257th, and 258th being aspirants for the offices of Chairman and vice Chairman are not required to deposit any non refundable nomination fees before the election.
d) AN ORDER directing the defendant, its agents, privies or assigns to stop any step taken or to be taken preparatory to the election of 15th July, 2017.
e) AN ORDER setting aside all actions, steps or functions carried out by the defendant before now or thereafter whether by itself, agent, privies or assigns.
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f) AN ORDER suspending the local Government Council election in Kebbi State slated for the 15th of July, 2017 pending the appointment of at least one member of the defendant.
g) Any other orders as the Court may deem fit to make in the circumstances of this case.
The lower Court in its Judgment delivered on 13th July, 2017 dismissed the claims of the Appellant for lack of evidence.
Dissatisfied he filed this Appeal. When the Appeal came up for hearing, both the Appellant and the Respondent were represented by Counsel. Respondent Counsel urged the Court to strike out the Appeal, because the Record of Appeal was not transmitted properly. Appellants Counsel applied for date for Judgment. This Court however discovered that the Notice of Appeal was filed on 20th July, 2017. The Registrar of the lower Court by Order 8 Rule 4 of the Rules of this Court 2016, had 60 days from the 20th July, 2017 to compile and transmit the Record of Appeal. Failing of which it becomes mandatory for the Appellant to compile and transmit the Records within 30 days after the Registrars failure or neglect.
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This in effect presupposes that the Record of Appeal ought to have been compiled and transmitted to this Court on 18th October, 2017. From our records however, the Record was finally filed in this Court on 27th November, 2017 which was well after the period allowed by the Rules of this Court. No leave of either the Court below or of this Court was obtained to file such Record out of time. In consequence, the said Record of Appeal is adjudged incompetent and is hereby struck out. Accordingly, the Appeal is struck out for lack of diligent prosecution.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of previewing the judgment just rendered by my learned brother Abdullahi Mahmoud Bayero, JCA. I agree with the reasons therein and the conclusion that the incompetent record of appeal cannot sustain this appeal. In other words, once record of appeal is transmitted outside the statutory time frame, it was to be regularised by an application for extension of time. In absence of any such application made to the Court and granted, the record so belatedly transmitted is incompetent and the same virus affects the briefs filed, which must be based on a competent record of appeal.
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It is rather sad that the Appellant’s counsel, whose attention was drawn to that fundamental irregularity, chose to adopt the Appellants brief without regularising the record of appeal.
In the circumstance, the appeal is incompetent and should be struck out. It is accordingly so ordered.
I also subscribe the consequential orders made in the judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother ABDULLAHI M. BAYERO, JCA just delivered and I am in agreement with his reasoning and conclusions in striking out this Appeal. I am also in agreement that the Appeal is incompetent for failure to file a competent record of Appeal and sundry other defects. I abide by the consequential orders made by Court.
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Appearances:
Hussein ZakariyyaFor Appellant(s)
Lagalo Dan LagaloFor Respondent(s)
Appearances
Hussein ZakariyyaFor Appellant
AND
Lagalo Dan LagaloFor Respondent
