ALL PROGRESSIVE GRAND ALLIANCE v. PEOPLES DEMOCRATIC PARTY & ORS
(2013)LCN/6470(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of October, 2003
CA/PH/EPT/230/2003
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
ALL PROGRESSIVE GRAND ALLIANCE (APGA) Appellant(s)
AND
PEOPLES DEMOCRATIC PARTY (PDP) & 169 ORS. Respondent(s)
RATIO
DEFINITION OF THE TERM “PRACTICE DIRECTION”
I shall start by defining the term “PRACTICE DIRECTION” although the two words seem to be separate and independent of each other, however, when juxtaposed, in legal parlance “PRACTICE DIRECTION” can be said to be concerned with the rules directing the manner in which applications in an interlocutory proceedings in court shall be dealt with or regulated and the provision of guidelines as to what should be done. In other words, “PRACTICE DIRECTION” always concerns and regulates the manner a particular rule of court shall be complied with or adhered to. On the nature of and how made and by who the supreme court said of “PRACTICE DIRECTION” in UNIVERSITY OF LAGOS AND ANOR. vs. AIGORO (1984) 11 sc 152 per the judgment of Bello J.S.C (as he then was) at pages 159-160 and I quote:
“Now I consider it pertinent to define “practice direction” which may be defined as a direction given by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed and obeyed. In all the common law jurisdictions there has always been an authority vested with the power to issue such directions….
Now coming home, it may be observed that the provisions of our Supreme Court Rules 1977 Order 1 Rules 8,9, 10(1), 14 and 15 are clear and unambiguous. The Rules in clear terms empower the Chief Justice to give directions on the matters Stated by the rules which speak for themselves.” PER ADEREMI, J.C.A.
WHETHER OR NOT THE PRESIDENT OF THE COURT OF APPEAL HAS THE POWERS TO ISSUE PRACTICE DIRECTION TO GUIDE THE PRACTICE AND PROCEDURE IN ELECTION PETITION APPEAL
The President of the Court of Appeal is vested with power under the Constitution Section 285 and Section 8(2) of the Court of Appeal Act, and section 137 of the Electoral Act 2002 to issue practice direction to guide the practice and procedure in election petition appeal courts set up for the purpose. The document has statutory backing and consequently has an effect of law. Counsels and the court are supposed to be guided by the practice direction. Compliance with the provisions of the Practice Direction is therefore mandatory. The Practice Direction has the same effect as the Rules of court in all proceedings related to the election petition appeals. Just as the Rules of court the practice direction constitute the rules to be followed in the election Appeals – they must be complied with strictly – they cannot be circumvented. Williams v. Hope Rising Funds Society (1982) 2 S.C. 145; Ikeni v. Efamo (1997) 4 N.W.L.R. (Pt 499) page 318; Iguaso v. Omojowogbe (1998) 3 N.W.L.R. (Pt 559) page 628; Ojugbele v. Lamidi (1999) 10 N.W.L.R. (Pt 621) page 167. PER ADEKEYE, J.C.A.
WHETHER OR NOT WHERE AN APPELLANT FILES TO FILE A BRIEF OUT OF TIME AND NO LEAVE IS SOUGHT, THE APPEAL IS LIABLE TO BE DISMISSED
It is trite law that where an appellant fails to file brief out of time and no leave is sought and granted for enlargement of time to file such brief, the appeal is liable to be dismissed. See BABAYASI Vs BIDA (1998) 2 NWLR (Pt 538) 367. PER SANUSI, J.C.A.
P.O. ADEREMI. J.C.A. (Delivering the Lead Ruling): By the application filed on the 2nd of October 2003, the appellant/applicant are praying for the following orders:
i) An order granting the appellant/applicant leave to amend its Notice and Grounds of Appeal by filing 4 additional grounds of appeal as set out in the memorandum of additional grounds of appeal annexed thereto.
ii) An order deeming the memorandum of the proposed additional grounds of appeal as having been duly filed as the additional ground of appeal for this suit.
The 1st respondent was served but was absent.
The application is supported by a 13-paragraph affidavit to which were attached two exhibits i.e. the filing fee receipt and a process headed “Memorandum of Additional Grounds of Appeal.” No counter-affidavit was filed. When the application came before us on the 14th of October 2003, Dr. Mbachu, learned counsel for the applicant, in urging us to grant the prayers contained in the body of the application relied on the said 13- paragraph affidavit together with the exhibits attached. Chief Nwaiwu, S.A.N., learned Senior counsel for the 2nd and 3rd respondents, in opposition submitted that the application was incompetent, the proposed additional grounds of appeal were not attached. The appellant’s brief of argument was not filed within time and there was no application to file the process out of time. He again submitted while urging that the application be struck out. Chief Nwakanma, S.A.N., learned Senior counsel for the 4th to 16th respondents referred to paragraph 5 of the supporting affidavit wherein it was deposed that the Secretary to the Tribunal had compiled the Record of Appeal and had served a copy of the said Record on the petitioner on the 3rd of September 2003. Learned Senior counsel had drawn our attention to paragraph 5 of the Practice Direction No. 2 of 2003 made by the President of the Court of Appeal pursuant to Section 285 of the Constitution, Section 8(2) of the Court of Appeal Act, 1976 and Section 137 of the Electoral Act 2002 No. 4 provision of which reads:-
“Within a period of 5 days after the service of the record of proceedings, the appellant shall file in the Court and serve all the respondents a written brief, being a succinct statement of his arguments in the appeal.”
and submitted that the provisions of the afore-mentioned paragraphs have not been complied with by the appellant and since there is no application for an order enlarging the time within which to file the brief, the learned senior counsel urged us to invoke the provisions of Order 6 Rule 10 of the Court of Appeal Rules and strike out the application for being incompetent.
In reply on point of law why Dr. Mbachu urged us not to countenance the provision of paragraph 5 of the Practice Direction, as according to him, it lacked legal force for reason of not having been gazetted.
I shall start by defining the term “PRACTICE DIRECTION” although the two words seem to be separate and independent of each other, however, when juxtaposed, in legal parlance “PRACTICE DIRECTION” can be said to be concerned with the rules directing the manner in which applications in an interlocutory proceedings in court shall be dealt with or regulated and the provision of guidelines as to what should be done. In other words, “PRACTICE DIRECTION” always concerns and regulates the manner a particular rule of court shall be complied with or adhered to. On the nature of and how made and by who the supreme court said of “PRACTICE DIRECTION” in UNIVERSITY OF LAGOS AND ANOR. vs. AIGORO (1984) 11 sc 152 per the judgment of Bello J.S.C (as he then was) at pages 159-160 and I quote:
“Now I consider it pertinent to define “practice direction” which may be defined as a direction given by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed and obeyed. In all the common law jurisdictions there has always been an authority vested with the power to issue such directions….
Now coming home, it may be observed that the provisions of our Supreme Court Rules 1977 Order 1 Rules 8,9, 10(1), 14 and 15 are clear and unambiguous. The Rules in clear terms empower the Chief Justice to give directions on the matters Stated by the rules which speak for themselves.”
It will be seen from the above that Practice Directions may not have the authority of rules of court, they are instructions in aid of the practice of law in the court. The head of any hierarchy of courts always possesses power and authority under an enabling statute and in particular under the relevant provisions of the Constitution to make such necessary Practice Directions for smooth, quick and orderly dispensation of justice. And where they are not in conflict with any provisions of the rules of court, or any substantive law or even the Constitution, they necessarily command obedience. A cursory reading of the Practice Direction No. 2 of 2003 made by Hon. Justice Umaru Abdullahi, the president, Court of Appeal, has the cover of the provision of the 1999 Constitution, in particular Section 25. I have not seen and our attention has not been drawn to any provisions of the rules of court, or substantive law or any part of the Constitution which it infringes.
Therefore, it must be adhered to and applied. By its own admission in paragraph 11 of its affidavit, the applicant has admitted that the Secretary to the Tribunal had compiled the record of appeal and served a copy thereof on the petitioner/appellant/applicant on the 3rd of September 2003. As at today the appellant/applicant is yet to file its brief of argument.
No application has been brought by the applicant for an extension of time within which to file its brief of argument. It is always in the interest of the public that litigation must come to an end. By its conduct the appellant/applicant has manifested clear disinterestedness in the due prosecution of the appeal. I pause to say that Practice Direction need not be gazetted.
Sequel to all I have been saying, I am in full agreement with the submission of Chief Nwakanma that this is an appropriate case to invoke the provisions of Order 6 Rule 10 of the Court of Appeal Rules which deal with the consequences of failure to file briefs which provisions read:
“Where an appellant fails to file his brief within the time provided for in rule 2 of this Order or within the time as extended by the court, the respondent may apply to the court for the appeal to be dismissed for want of prosecution….”
Suffice it to say that the rule of court which I quoted supra is an integral part of the rules of Court made by the same President of the Court of Appeal pursuant to the provisions of Section 248 of the 1999 Constitution. The Rules relate to civil cases simpliciter. But the present case is an election matter; so paragraph 5 of the Practice Direction No. 2 of 2003 must be substituted for rule 2 referred to in order 6 Rule 10 quoted supra.
In the final analysis, having regard to the provisions I have referred to I order that the appeal be dismissed and this automatically puts an end to the application filed on 2nd of October 2003 which is under consideration. The respondent is entitled to cost which I assess and fix in favour of the 2nd and 3rd respondents at N2,000.00 and N5,000.00 in favour of the 4th to 169th respondents; all costs being against the appellant/applicant.
RABIU DANLAMI MUHAMMAD, J.C.A.: I have read before now the Ruling just delivered by my learned brother Aderemi, J.C.A. He has thoroughly dealt with all points canvassed in the application. I entirely agree with his reasoning and conclusion.
The application clearly lacks substance. The applicant has failed to establish why we should exercise our discretion in his favour. I too refuse the application. I abide by all the orders made in the leading Ruling including the order as to costs.
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.: I had the opportunity of reading in draft the Ruling just delivered by my learned brother ADEREMI, J.C.A.
When this appeal was adjourned for filing of brief and hearing, the appellant filed an interlocutory application asking for leave of this court to amend the Notice and grounds of appeal by filing four additional grounds of appeal as set out in his memorandum of additional grounds of appeal annexed thereto, and an order for deeming the memorandum of the proposed additional grounds of appeal as having been duly filed and served. The motion was brought pursuant to Order 3 Rule 16 of the Court of Appeal Rules 2002 and paragraph 51 of the First Schedule of the Electoral Act 2002.Counsel for the 2nd, 3rd Respondents and 4th-16th respondents vehemently opposed the application as being incompetent as not only is the memorandum of the proposed additional grounds not exhibited – the appeal was adjourned for hearing and brief has not been filed within the statutory time. There is no application for extension of time to file appellants’ brief.
This court is urged to invoke Order 6 Rule 8 of the Court of Appeal Rules to strike out the appeal for failure to file brief of the appellant within time.
Counsel for the appellant/applicant Dr. Mbachu however argued that court cannot rely on the Practice Direction No. 2 particularly paragraph 5 to strike out the appeal – the document having not been gazetted.
I agree with my learned brother in the lead Ruling that the argument of the applicants’ counsel on the Practice Direction No. 2 of 2003 as being misconceived and a wrong interpretation of practice procedure for elections.
The President of the Court of Appeal is vested with power under the Constitution Section 285 and Section 8(2) of the Court of Appeal Act, and section 137 of the Electoral Act 2002 to issue practice direction to guide the practice and procedure in election petition appeal courts set up for the purpose. The document has statutory backing and consequently has an effect of law. Counsels and the court are supposed to be guided by the practice direction. Compliance with the provisions of the Practice Direction is therefore mandatory. The Practice Direction has the same effect as the Rules of court in all proceedings related to the election petition appeals. Just as the Rules of court the practice direction constitute the rules to be followed in the election Appeals – they must be complied with strictly – they cannot be circumvented. Williams v. Hope Rising Funds Society (1982) 2 S.C. 145; Ikeni v. Efamo (1997) 4 N.W.L.R. (Pt 499) page 318; Iguaso v. Omojowogbe (1998) 3 N.W.L.R. (Pt 559) page 628; Ojugbele v. Lamidi (1999) 10 N.W.L.R. (Pt 621) page 167.
Non-compliance with paragraph 5 of the Practice Direction No.2 of 2003 is fatal to the appeal of the appellant – while any application emanating from the appeal suffers the same fate as the appeal. The appeal being incompetent for non-compliance with paragraph 5 of the Practice Direction No. 2 of 2003, and the application filed on 2/10/03 are hereby struck out. I abide by the consequential orders made in the lead Ruling.
ALBERT GBADEBO ODUYEMI, J.C.A.: This application seeks the following orders from this court viz:
(i) An order granting the Appellant/Applicant leave to amend its Notice and grounds of Appeal by filing 4 additional grounds of appeal as set out in the memorandum of additional grounds of Appeal annexed hereto.
(ii) An order deeming the memorandum of the proposed Additional grounds of Appeal as having been duly filed as the Additional Grounds of Appeal for this suit.
The application was accompanied by affidavit paragraphs 4, 5 and 11 of which are relevant and read thus:
(4) “That the Notice of Appeal was filed within time since the Ruling being appealed against was delivered by Election Tribunal on 4th July, 2003
(5) That I filed the Notice of Appeal on 17/7/2003 within 14 days after the Ruling was delivered.
(11) That the Secretary to the Tribunal has compiled the record of appeal and a copy thereof was served on the petitioner on 3rd September, 2003 at the offices of APGA at No.47 Okigwe Road, Owerri.”
Dr. Mbachu, of counsel to the applicant moved the application and the affidavit in support and the annexure thereto and urged this court to grant it:
Amachi Nwaisu, Esq., SAN of Senior counsel for 2nd and 3rd Respondents opposed the grant of the application on the ground that the application is incompetent for the following reasons:
(a) The memorandum was never referred to anywhere in the affidavit as an exhibit; and
(b) The appeal was fixed for hearing today, never the less neither has the applicant filed any brief of argument nor prayed this court for an extension of time to enable him file a Brief.
Chief Nwakanma, also of Senior counsel for 4th – 109th Respondents having referred to paragraph 11 of the affidavit opposed the application on the ground that applicant has 5 days after service on him of the record in the appeal under paragraph 5 of Practice Directions No. 2 of 2003 issued by the President of this Court on 15th April, 2003 within which to file appellant’s Brief of Argument in Court but he has neither done so nor applied for extension of time within which to comply.
He therefore urged upon the court to invoke Order 8 Rule 10 of the Court of Appeal Rules 2002 and strike out not only the application but also the entire appeal.
In reply, the learned counsel for the applicant insisted that there being no proof that the Practice Directions of 2003 have been gazetted, they are not binding.
I am of the view that learned counsel appearing before a duly constituted court has a duty at all times to be courteous and accord the court some measure of respect. Moreso counsel presenting a petition to the court in which he prays the court to exercise its discretion in favour of his client must first of all comply with the Rules of Court applicable in the Court.
These are lacking in respect of this application I am in duty bound to agree with the plea of opposing counsel to refuse the application for incompetence.
For these and for the other detailed reasons contained in the lead Ruling of my learned brother ADEREMI, J.C.A. I therefore strike out the application.
I also abide by the Order as to costs contained in the lead Ruling.
AMIRU SANUSI, J.C.A.: I have had a preview of the judgment just read by my learned brother Aderemi, J.C.A. I am in entire agreement with him that the appeal is devoid of any merit and should be dismissed.
My lords, permit me however to comment on some salient issues that featured prominently in the submissions of counsel when arguing the motion.
The applicant is vide in his motion on notice asking this court to:
(a) grant him leave to amend his Notice and Ground of Appeal by filing four additional grounds of appeal; and
(b) an order deeming what he referred to by “Memorandum of the Proposed Additional Grounds of Appeal” as having been duly filed as the Additional Grounds of Appeal for this suit.”
Attached to the application is a document titled “Memorandum of Additional Grounds of Appeal” and not Proposed Notice and Ground of Appeal. Again, the way the said document is couched do not appear to be a “Notice and Ground of Appeal’ Just after it was headed as I said supra, it went on to itemize what in actual sense can not answer the definition of ground of appeal e.g. “Want of Jurisdiction”, then particulars; misdirection – then particulars; Error of Law then particulars stated. Not only that, the said document was merely attached to the motion papers and not exhibited. In my view, no serious “Legal Practitioner” who can truly answer that name can prepare such document. This comment is just by the way.
Now coming to the crux of the matter, in the affidavit supporting the application, the deponent one Chief Uche Mbah deputy chairman of the appellant/applicant’s party the All Progressive Grand Alliance (APGA) stated thus:
“That the secretary to the Tribunal has compiled the record of appeal and a copy thereof was served on the petitioner on 3rd September, 2003 at the offices of APGA at No. 47 Okigwe Road, Owerri.”
It is worthy of note that till this day no brief of argument was filed on the appellant. Order 6 court of Appeal Rules 2002 provides thus:
“Where an appellant fails to file his brief within the time provided for in rule 2 of the Order or within the time as extended by the court, the respondent may apply to the court for the appeal to be dismissed for want to prosecution. If the respondent fails to file his brief, he will not be heard in oral argument except by leave of the court. Where an appellant fails to file a reply brief within the time specified in rule, he shall be deemed to concede all the new points or issues arising from the respondents brief.” (under lines supplied by me).
For the purpose of the election recently held throughout the Nigerian Federation and the need to hear and determine petition filed by aggrieved candidates or political parties that took part or participated at the said elections expeditiously, the President of Court of Appeal has, pursuant to the powers conferred upon him by the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria, Section 8(2) of Court of Appeal Act 1976 and Section 137 of the Electoral Act 2002, issued Practice Direction No. 4 wherein the period of filing briefs by parties to appeals filed before the Court of Appeal as provided in Rule 2 of Order 6 of Court of Appeal Rules 2000 practice direction provided by Paragraph 5 that appellants are to file their brief of argument within five days after service of the record of proceeding and such briefs shall also be served on all the respondents to the appeal. There after the respondent shall also file his Respondent’s brief within 3 days after being served with the appellant’s brief of argument. In the instant application there is no brief filed by the appellant/applicant despite the fact that it confirmed that it was served with the record of proceedings since 3rd September, 2003.
There is no application made by the appellant/applicant for enlargement of time to file its brief of argument. The instant motion did not include any such prayer. And even if there is such application for leave to file brief out of time some indications must be fulfilled. It is trite law that where an appellant fails to file brief out of time and no leave is sought and granted for enlargement of time to file such brief, the appeal is liable to be dismissed. See BABAYASI Vs BIDA (1998) 2 NWLR (Pt 538) 367.
It is for these observations I made and the more detailed reasons contained in the leading rulings of my learned brother that too regard the application as unmeritorious and frivolous. It deserves to be dismissed and I accordingly do same.
I endorse the order made on cost in the leading ruling.
Appearances
Dr. S.J. MbachuFor Appellant
AND
Chief Amaechi Nwaiwu, SAN, with him Mr. O.I. Okpara
Chief Bon Nwakanma, SAN.,
with him Mr. C.E. Ndumaga.For Respondent
