AKAN v. OKON & ORS
(2022)LCN/16143(CA)
In the Court of Appeal
(CALABAR JUDICIAL DIVISION)
On Monday, September 26, 2022
CA/C/261/2022
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
ETIM ANIEKAN AKAN APPELANT(S)
And
1. MR. AKAN EKPE OKON 2. PEOPLES DEMOCRATIC PARTY 3. PASTOR UMO BASSEY ENO 4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO
THE SUIS GENERIS NATURE OF THE PRE-ELECTION AND POST-ELECTION MATTERS
The learned counsel has not told us why we cannot fall back on our Rules of Court to complement any lacuna that exists in the Practice Direction such as exercising our discretion to extend time that has arisen in the circumstances of this case. The case of MUTTAKA BALA SULEMAN & 17,907 ORS. VS. ALL PROGRESSIVE CONGRESS (APC) & 10 ORS. Delivered on the 6th May 2022 by the Supreme Court in Suit NO: SC/CV/250/2022, was simply stating the suis generis nature of the pre-election and post-election matters where time is always of the essence, and whether leave of Court is required to file a pre-election appeal. The Apex Court held that the provisions of Section 233(3) of the Constitution do not apply to election matters. That appeal is in relation to a conduct of political party ward conferences which the Apex Court held did not fall within the ambit of pre-election matters and therefore non-justiciable being internal affairs of a political party. The appeal before us stems from primaries election for the election of candidate to contest general election. It has no bearing on the procedure in the determination of pre-election appeals which was provided for by the Electoral Act itself as alluded to supra. PER ALIYU, JC.A
THE POSITION OF LAW ON THE ENLARGEMENT OF TIME ARISING FROM DEFAULT TO FILE PROCESSES WITHIN THE TIME FRAME STIPULATED BY THE PRACTICE DIRECTION
It is obvious that the Election Judicial Proceedings Practice Direction, 2022 has no provision for enlargement of time arising from default to file processes within the time frame stipulated by the Practice Direction. However, resort can be had to the provision of the Court of Appeal Rules, 2021 by virtue of Paragraph 55 of the First Schedule to the Electoral Act, 2022 to the effect that:
“55. 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 and procedure relating to civil appeals 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 above provision endows this Court the enablement to exercise its discretion under Order 6 Rule 9 (1) of the Rules of this Court which provides:
9 (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, except as it relates to the taking of any step of action under Order 16. “
In the case MINJIBIR V. MINJIBIR (2008) LPELR 4486 (CA), Oredola, JCA held that Rules of Court include practices direction made in addition thereto. Thus, such orders, rules and regulations and/or directives are made to regulate and provide adequate guidelines for the conduct of the proceedings before the Court or Tribunal regarding issues of practice and procedure. PER BOLA, J.C.A.
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): The Appellant/Applicant herein filed his notice of appeal against the ruling of the Federal High Court, sitting at Uyo delivered on the 29th August 2022 in respect of his application for joinder to the suit commenced by the 1st Respondent against the 2nd to 4th Respondents in respect of primaries election conducted on the 25th July 2022 to elect candidate of the 2nd Respondent to the 2023 general election into the office of Governor of Akwa Ibom State.
The suit was commenced by the 1st Respondent as the plaintiff, vide a writ of summons against the 2nd, 3rd and 4th Respondents respectively as the defendants. The brief facts of the case are that the 2nd Respondent (PDP) being a registered political party scheduled and conducted its primary election to elect its Akwa Ibom governorship candidate for the 2023 general election. The primary election was conducted on the 25th May 2022 at Uyo, Akwa Ibom State, and the Appellant along with the 1st and 3rd Respondents participated in the primary election. After the whole exercise, the 3rd Respondent was declared winner of the primaries election and the candidate of the 2nd Respondent to contest the 2023 general election as its governorship candidate.
The 1st Respondent was aggrieved with the declaration of the 3rd Respondent as the winner of the primaries and he challenged it by this suit praying the trial Court for the following reliefs:
1. A declaration that the 1st Defendant is not entitled to present the 2nd Defendant to the 3rd Defendant for the purpose of the 3rd Defendant accepting him (2nd defendant) as the candidate of the 1st Defendant in the forthcoming Governorship election into the office of the Governor, Akwa Ibom State scheduled to take place in 2023.
2. A declaration that having presented forged documents to the screening committee of the 1st Defendant to be screened and presented as the candidate of the 1st Defendant for selection as the flag bearer of the 1st Defendant, the screening committee of the 1st Defendant ought to have disqualified the 2nd Defendant rather than clearing him to take part in the primaries that took place on 25th May 2022.
3. A declaration that the 2nd Defendant is not qualified to represent the 1st Defendant as her candidate in the Governorship Election scheduled for 2023 or at any other time.
4. A declaration that the Plaintiff having participated in the primaries of the 1st Defendant and having scored the 2nd highest votes in that primaries election is entitled to bear the flag of the 1st Defendant in the Governorship election scheduled for 2023, the 2nd Defendant having not qualified to fly the flag of the 1st Defendant in that election.
5. An order that the Plaintiff and not the 2nd Defendant is entitled to fly the flag of the 1st Defendant in the forthcoming Governorship election to be conducted by the 3rd Defendant into the office of the Governor of Akwa Ibom State.
6. An order that the 2nd Defendant having forged West African School Certificate, 1981, voter’s card said to have been issued to him on 30th May 2014 as well as altered his name and other credentials of his, ought not to have been cleared to participate in the primaries of the 1st Defendant that took place on 25th May 2022.
7. An order that the 2nd Defendant has no qualification to be qualified to be elected into the office of the Governor of Akwa Ibom State.
8. An order that the Plaintiff be presented by the 1st Defendant to the 3rd Defendant to fly the flag of the 1st Defendant in the Governorship election scheduled for 2023.
One of the Appellant’s grounds for filing his application to be joined as the Defendant to that suit is that the 1st Respondent (being the plaintiff) did not join the Appellant as a Defendant to that suit even though he (1st Respondent) expressly mentioned the Appellant as one of the aspirants that participated in the primaries election that the 2nd Respondent conducted on the 25th May 2022 for the selection of the governorship candidate for Akwa Ibom State. He argued that it was in order to avoid multiplicity of actions over the said primaries election that the Appellant decided to apply by a motion on notice filed on the 18th July 2022 praying the trial Court to join him as a defendant in that suit. The said motion is contained in pages 356-358 of the record of appeal, the Appellant prayed the trial Court for:
1. AN ORDER of this Honourable Court granting leave to the Applicant to join as Defendant, the person listed as “party sought to be joined” on the face of this Application.
2. AN ORDER of this Honorable Court joining the party seeking to be joined as 4th Defendant in this suit.
3. AN ORDER of this Honorable Court granting leave to the Applicant to file and serve on the Plaintiff and Defendants the Applicant’s statement of defence, counterclaim, witness statement on oath with requisite annexures.
4. AN ORDER of this Honourable Court deeming as properly filed and served the Applicant’s statement of Defence, counterclaim, witness statement on oath with requisite annexures, the prescribed fees having been paid.
5. AND ANY OTHER ORDER(S) as this honorable Court may deem fit to make in the circumstance.
He relied on seven grounds for seeking the above prayers, thus:
1. That Party seeking to be joined is a registered and card-carrying member of the 1st Defendant, the Peoples Democratic Party (PDP).
2. The Party seeking to be joined indicated interest in the PDP forthcoming Gubernatorial Election in Akwa Ibom State
3. The Party seeking to be joined bought and paid for the expression of interest form and was cleared to contest the election
4. The Party seeking to be joined bought the Nomination form for the Governorship and participated in the May 25th 2022 Governorship primary at Uyo, Akwa Ibom State.
5. The Party seeking to be joined paid all necessary fees pertaining to the contest of the election.
6. Any decision reached by this Court is likely to affect the interest of the party seeking to be joined one way or the other.
7. The party seeking to be joined is a necessary party to the just and effectual determination of this suit.
The application was supported by affidavit and written address. The Respondents all opposed the application of the Appellant and filed counter affidavits to which he filed replies. In his ruling on the application, the learned trial Judge found and held that the Appellant failed to establish that he is a necessary party to the suit and therefore his application was dismissed for lack of merit. He was aggrieved with the decision of the trial Court and he filed notice of appeal against it relying on three grounds of appeal to pray this Court to allow this appeal, set aside the decision of the trial Court, or in the alternative, order the re-hearing of the Appellant’s application for joinder before another Judge of the Federal High Court, preferably at Abuja Division of that Court.
However, during the hearing of the appeal, the Appellant informed the Court of a motion on notice he filed on the 20th September, 2022 pursuant to Order 6 Rule 1 of the Court of Appeal Rules, 2021 seeking the following orders of this Court:
1. AN ORDER of Court extending the time within which the Appellant/Applicant may compile and transmit Records of Appeal out of time in Appeal No. CA/C/261/2022.
2. AN ORDER of Court deeming the said record already compiled and transmitted as properly compiled and transmitted out of time.
3. AN ORDER of Court extending the time within which the Appellant/Applicant may file his Appellant’s Brief of argument out of time.
4. AN ORDER of Court deeming the Appellant’s Brief of Argument already filed and served on the Respondents as duly filed and served.
5. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstance.
The above stated prayers were predicated on the following grounds:
1. The Appellant/Applicant is out of time to transmit his record of appeal in this appeal out of time and also has filed his Appellant’s Brief of Argument out of time.
2. For the foregoing reason, the Appellant/Applicant requires the Order of this Court to regularize and deem the said records of appeal already transmitted and served on the Respondents to be deemed as properly filed and served the appropriate filing fees having been paid.
3. The reason for the delay in transmitting the said record of appeal out of time was due to the delay caused by the Registry of the lower Court.
4. When the lower Court eventually prepared and transmitted the record of appeal, the time allowed by the rules of this Honourable Court has expired, the Appellant was out of time, and this also affected the Appellant’s brief of argument, hence this application.
5. The Appellant/Applicant has already served the said records of appeal on the Respondents, so also is the Appellant’s Brief of Argument and therefore requires the Order of this Court to deem same as properly filed and served, hence this application.
The motion was supported by a nine (9) paragraphed affidavit sworn to by Mathias Mbogoh, litigation secretary in the law firm of Egang Agabi & Co. He deposed inter alia in paragraphs 4–6, that the reason for the delay in the transmission of record of appeal is that of the Registrar of the trial Court. Upon being served with record of appeal because of the volume of work in the chambers of the counsel of the Appellant, he could not file the Appellant’s Brief of Argument within the time required by the rules of Court hence this application for extension of time to do so. That the delay is entirely the fault of the office of the counsel and not that of the litigant.
Also in support of the application is the counsel’s written address in which he raised a sole issue for the determination of the application thus:
Whether it is in the interest of justice for this honorable Court to grant the relief sought by the Appellant/Applicant?
In arguing a lone issue, learned counsel relied on Order 6 Rule 9 of the 2021 Rules of this Court which empowers us to enlarge time which these Rules apply. He further relied on the provision of Section 24 (2)(a) of the Court of Appeal Act (as amended) to submit that the reason for the delay in filing this application has been explained in the affidavit in support to be that of the registry of the lower Court. That in order to exercise our discretion in favour of the Applicant we need only to be satisfied that the Applicant has shown good and substantial reason to explain the reason for the delay which has been done. He relied on the case of T.M. LTD & ANOR V. SANT ENGINEERING LTD & ANOR (2009) 6 NWLR (PT.1136) 1 at 9-10 PARA H, to the effect that a party seeking for extension of time must state a good and substantial reason for failing to do the act within the time prescribed by law. He urged the Court to grant the application.
The 1st Respondent’s learned counsel Mr. Chris Ekong raised no opposition to this application. However, the learned counsel for the 2nd and 3rd Respondents’ learned counsel Chief Offiong E. Offiong, SAN, seemingly opposed the application on law, though he did not file a counter affidavit to the affidavit of the Applicant nor a written address in response to that of the appellant. He said he was only drawing our attention to the fact that we have no power to grant extension of time to regularize record of appeal and briefs of argument in pre-election matters in view of the Election Judicial Proceedings Practice Directions 2022, which has not made any provisions for such applications. He relied on the decisions of PDP VS. INEC (2014) LPELR-23808 APC VS. PDP & ORS. 2021) LPELR-53052 (CA) in support.
In response to the points of law raised by learned Silk for the 2nd and 3rd Respondents, the Appellant/Applicant’s counsel submitted that the Rules of this Court empowers us to extend time for the Appellant/Applicant and he also relied on the case of OJOGBO VS. MORO (2019) 7 NWLR (PT. 1700) 168-169 in support and in urging us to discountenance the submissions of the learned Counsel for the 2nd and 3rd Respondents.
RESOLUTION
In the determination of this application, I adopt the lone issue proposed by the Appellant/Applicant to wit: “Whether it is in the interest of justice for this honorable Court to grant the relief sought by the Appellant/Applicant?” I should begin by re-stating that there is no counter affidavit to the affidavit in support of this application. That notwithstanding, I will still look at the merit of the application to see whether the reasons for the delay of transmitting the record of appeal and filing of the Appellant’s brief are cogent enough to warrant the exercise of the Court’s discretion in favour of the Appellant.
I will begin with the record of this appeal that was compiled and transmitted to this Court by the Registrar of the lower Court. The Appellant/Applicant deposed to facts in his affidavit to the effect that it was the registry of the lower Court that failed to transmit the record that failed to do so within time stipulated thus this application. Now Rule 9 of the Election Judicial Proceedings Practice Directions 2022, (Practice Directions) provides that:
The Secretary of the Tribunal or Registrar of the lower Court shall, within a period of not more than ten (10) days of the receipt of the Notice of Appeal cause to be compiled and served on all the parties, the Record of Appeal.
Upon examining the transmitted record, I found that the notice of this appeal against the decision of the lower Court delivered on the 29th July 2022 was filed by the Appellant on the 5th August 2022 at the lower Court within the time of 14 days prescribed by Rule 6 (2) of the Practice Directions. From that 5th August 2022, the Registrar of the lower Court must compile and transmit the record of this appeal within 10 days provided by Rule 9 supra, that is, on or before 15th August 2022. But he transmitted the record of appeal on the 2nd September 2022 outside the prescribed period. It is therefore correct, the facts stated by the Appellant/Applicant in paragraph 4 of his affidavit in support that it was the registry of the lower Court that delayed the transmission of the record of appeal. There is no counter to that fact and it is uncontroverted.
It is pertinent to point out that the practice Directions did not provide for a remedy where this situation arises, that is to say, where the Registrar of the lower Court failed to transmit the record of appeal within the 10 days provided by the Practice Directions. It is for this reason therefore the Appellant/Applicant applied pursuant to Order 6 Rule 1 of the Court of Appeal Rules, 2021 to regularize the records.
As a guide, the Election Judicial Proceedings Practice Directions 2022 was issued pursuant to Section 140(2)(a) of the Electoral Act, 2022 and Paragraph 55 of the First Schedule to the Act provides for the practice and procedure of election related appeals thus:
Subject to the provisions of this Act, an appeal to the Court of Appeal and to the Supreme Court shall be determined in accordance with the practice and procedure relating to civil appeals 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.
It means that the Practice Directions 2022 are complimentary and part of the already existing Rules of this Court promulgated pursuant to the provisions of Section 248 of the Constitution of Nigeria, 1999 as amended. In the circumstance, the Appellant was right to apply and seek extension of time to transmit that record of appeal and since the practice directions did not make it the Appellant’s responsibility to compile and transmit the record, he should not be penalized for the lower Court’s registry.
The suggestion of the learned silk for the 2nd and 3rd Respondents that we have no power to extend time in a pre-election appeal is predicated mainly on the fact that it was not provided for in the 2022 Election Proceedings Practice Directions. The learned counsel has not told us why we cannot fall back on our Rules of Court to complement any lacuna that exists in the Practice Direction such as exercising our discretion to extend time that has arisen in the circumstances of this case. The case of MUTTAKA BALA SULEMAN & 17,907 ORS. VS. ALL PROGRESSIVE CONGRESS (APC) & 10 ORS. Delivered on the 6th May 2022 by the Supreme Court in Suit NO: SC/CV/250/2022, was simply stating the suis generis nature of the pre-election and post-election matters where time is always of the essence, and whether leave of Court is required to file a pre-election appeal. The Apex Court held that the provisions of Section 233(3) of the Constitution do not apply to election matters. That appeal is in relation to a conduct of political party ward conferences which the Apex Court held did not fall within the ambit of pre-election matters and therefore non-justiciable being internal affairs of a political party. The appeal before us stems from primaries election for the election of candidate to contest general election. It has no bearing on the procedure in the determination of pre-election appeals which was provided for by the Electoral Act itself as alluded to supra.
I think the Appellant deserves the exercise of our discretion to allow his appeal to be entered by deeming the record of appeal compiled and transmitted outside the time prescribed by paragraph 9 of the Practice Directions. Prayers 1 and 2 are hereby granted as prayed. The Record of this appeal transmitted on the 2nd September 2022 is hereby deemed to have been appropriately entered on that 2nd September 2022 the date it was transmitted.
The Appellant’s prayers 3 and 4 in this application are with respect to his brief of argument which he filed out of time. As I found above, the record of appeal was transmitted on the 2nd September 2022, and the Appellant ought to have filed his brief of argument within 7 days from the date the record was transmitted vide the provisions of Rule 10 of the Practice Direction which provides that:
Within a period of seven (7) days after the service of the Record of Appeal, the Appellant shall file in the Court his Brief of Argument in the appeal for service on the Respondent(s). It means that the Appellant must file his brief of argument within 7 days after he was served with the record of appeal. In his affidavit in support of the application, he stated the reasons why he failed to comply with the provisions of Rule 10 supra in paragraphs 5 and 6 thus:
5. Upon service of the records on the Appellant, because of the volume of work in the firm and the industry required to be put on the brief of argument, the Appellant’s counsel could not cope with the time required by the Rules of Court to file the Appellant’s brief, hence this application for extension of time to do so.
6. The delay in filing this brief is entirely the fault of the office and not that of the litigant. (Underlining supplied)
The learned Appellant’s counsel in paragraph (h) of the written address in support of this application referred us to the case of T. M. LTD & ANOR. VS. SANT ENGINEERING LTD & ANOR. (supra) and quoted this Court, (per Galinje, JCA as he then was) as holding that an application for extension of time is not granted as a matter of course, but upon good and substantial reasons for failing to do the act within the time prescribed by law. Now considering that this is a pre-election appeal where time is of the utmost essence, the reason proffered by the Appellant for failure to file his brief after being served with the record of appeal supra is not, in my view good and substantial for me to exercise my discretion in his favour. The Appellant’s prayers 3 and 4 are refused. The sole issue for determination is resolved partly in favour of the Appellant only as regards the transmission of the record of appeal.
Consequently, the appeal having been entered since 2nd September, 2022 and the Appellant having filed his brief outside the 7 days provided by the Practice Direction is incompetent and it is hereby struck out.
RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged to read in advance, the lead judgment of my learned brother Aliyu, JCA and I completely agree with both the reasoning and conclusions. Time set out by the Rules of Court for taking certain steps are not extended as a matter of course. In the instant case, the fact that counsel was busy cannot constitute sufficient reason for failure to file Appellant’s brief within time. I have no option but to find the Appellant’s brief filed out of time incompetent. There being no competent Appellant’s brief, I also strike out the appeal.
ADEMOLA SAMUEL BOLA, J.C.A.: I have read through the draft of the judgment just delivered by my learned brother Balkisu Bello Aliyu, JCA. I am in agreement with his reasoning and conclusion which has lucidly considered the background facts in relation to this appeal and the merit of the Appellant’s application for extension of time to compile and transmit the records of appeal out of time, and also prayed for extension of time which the Appellant/Applicant may file Appellants brief of argument out of time. And to deem the processes already filed and served duly filed and served.
It is obvious that the Election Judicial Proceedings Practice Direction, 2022 has no provision for enlargement of time arising from default to file processes within the time frame stipulated by the Practice Direction. However, resort can be had to the provision of the Court of Appeal Rules, 2021 by virtue of Paragraph 55 of the First Schedule to the Electoral Act, 2022 to the effect that:
“55. 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 and procedure relating to civil appeals 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 above provision endows this Court the enablement to exercise its discretion under Order 6 Rule 9 (1) of the Rules of this Court which provides:
9 (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, except as it relates to the taking of any step of action under Order 16. “
In the case MINJIBIR V. MINJIBIR (2008) LPELR 4486 (CA), Oredola, JCA held that Rules of Court include practices direction made in addition thereto. Thus, such orders, rules and regulations and/or directives are made to regulate and provide adequate guidelines for the conduct of the proceedings before the Court or Tribunal regarding issues of practice and procedure.
It is in the light of the foregoing, this Court considered the relief for extension of time within which the Appellant/Applicant may compile and transmit the records of appeal out of time in this appeal, grant same having been satisfied with good and substantial reason for so doing. However, such discretion cannot be exercised in respect of the order for extension of time to file the Appellant’s brief of argument against the backdrop of want of material, cogent and compelling reason to predicate the grant of the order. In effect, no valid Appellant’s brief was filed by the Appellant in this appeal. The corollary of it is that this appeal is incompetent and subject to its being struck out.
Flowing from the above premises, I abide by the reasoning, conclusion and the resultant striking out of the appeal by my brother Balkisu Bello Aliyu, JCA The Appellant having filed his brief outside the 7 days provided by the Practice Direction which renders the appeal bare without any brief and the appeal therefore incompetent. The appeal is accordingly struck out.
Appearances:
EGANG AGABI, ESQ. WITH HIM, TABI S. TAWO, ESQ. For Appellant(s)
CHRIS EKONG, ESQ. HOLDING BRIEF OF OKEY AMECHI, ESQ. (SAN) FOR 1ST RESPONDENT.
CHIEF OFFIONG OFFIONG, (SAN) ESQ. WITH HIM, ESTHER EKONG, ESQ. AND FELIX OROK, ESQ. FOR 2ND & 3RD
RESPONDENTS.
4TH RESPONDENT ABSENT. For Respondent(s)
