DAVID BARAU V. I.N.E.C. & ANOR
(2010)LCN/3800(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of May, 2010
CA/J/EPT/GOV/248/2008
RATIO
APPEAL: POWER OF THE COURT OF APPEAL TO ENLARGE OR EXTEND TIME FOR NOTICE OF APPEAL
Order 7 Rule 10 of the Court of Appeal Rules 2007 confers on the Court of Appeal power to enlarge or extend time provided by the rules for the doing of anything to which the rule apply. There is also a similar power under Section 24(4) of the Court of Appeal Act. PER BODE RHODES-VIVOUR, J.C.A
APPEAL: HOW SHOUD THE APPEAL COURT EXERCISE ITS POWER IN GRANTING APPLICATION FOR EXTENSION OF TIME
The power is discretionary. It must at all times be exercised judicially and judiciously. That is to say with correct; and convincing reasons. See Wilbahi Haulage Ltd. v. Anambra Motor Manufacturing Co. (Anammco) Ltd 2009 All FWLR Pt. 485 P. 1790. Federal Housing Authority v. Abosede 1998 2 NWLR pt. 537 p. 117. PER BODE RHODES-VIVOUR, J.C.A
COURT: WHAT EXERCISE OF DISCRETION OF COURT ENTAILS
Exercise of discretion entails the Judge acting within the confines of the rules governing the particular application and not as he likes.
See: Nzeribe v Dave Engineering Co Ltd 1994 8 NWLR Pt. 361 P. 124. An exercise of discretion by a Judge in clear breach of the law or rules governing the application would be held to be perverse. See: Akujinwa v. Nwaonuma 1998 13 NWLR pt. 583 p 632. PER BODE RHODES-VIVOUR, J.C.A
JUSTICES
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
UZO I Justice of The Court of Appeal of Nigeria
NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
DAVID BARAU Appellant(s)
AND
1. I.N.E.C.
2. MURTALA H. NYAKO Respondent(s)
BODE RHODES-VIVOUR, J.C.A (Delivering the Lead Ruling): The Appellant/Applicant seeks by his Motion on Notice filed on the 27th of April, 2010 and brought under Order 7 Rule 10, 8 Rule 10(1) 17 (2) of the court of Appeal Rules 2007.
The Practice Direction No.2 of 2007 and the inherent jurisdiction of this Honourable Court, the following:
1. An order extending the time for the Appellant to compile and transmit the Record of Appeal to this Court.
2. An order deeming the Record of Appeal already compiled and transmitted by the appellant as properly compiled and transmitted to this Court.
3. An order extending time within which the appellant may file his Brief of argument in the appeal.
4. An order deeming the appellants Brief of argument already filed as an independent and separate process and served, as properly filed and served on all the Respondents.
The application is supported by a 12 paragraph affidavit deposed to By I.K.C. Kanu Esq., a legal practitioner in chambers of Learned Counsel for the Appellant/Appellant. Annexed to it are documents marked Exhibits A and B.
Both counsel for the Respondents did not file a counter-affidavit because they were served on the 29th of April, 2010, the day the application was heard.
The Appellant and the 2nd Respondent contested the Gubernatorial Elections in Adamawa State on the 14th day of April, 2007. The election was nullified by the Governorship/National Assembly, Legislative Houses Petition Tribunal which sat in Yola Adamawa State. The decision was affirmed by the Court of Appeal on the 26th day of April, 2008. The Court of Appeal ordered a re-run of the election. At the conclusion of the re-run the Appellant lost and so the 1st Respondent declared the 2nd Respondent the duly elected Governor of Adamawa State.
Dissatisfied with the results declared by the 1st Respondent, the Appellant (the PPA candidate) filed a petition at the Governorship/National Assembly, Legislative Houses Petition Tribunal. The Tribunal found that the Petition had been abandoned and dismissed it on the 25th day of July, 2008 pursuant to paragraph 3 (4) and (5) of the Practice Directions 2007. This decision did not go down well with the Appellant, and so he filed a Notice of Appeal dated the 7th of August, 2008. (There is nothing to show when it was filed).
Prior to the filling of this application both Counsel for the 1st and 2nd Respondents filed identical applications on 11/12/09 and 23/4/12 seeking dismissal of the appeal for want of diligent prosecution. This application is to regularize the Appellants brief so that the appeal could be heard. At the hearing of the application on the 29th day of April, 2010, Mr D. U. Egbele Learned Counsel for the Appellant/Applicant abandoned prayers 1 and 2 and urged us to grant prayers 3 and 4, contending that the Court should be magnanimous in hearing the appeal since the Appellants brief has been filed.
Learned Counsel for the 1st Respondent, Mr. Ayo Akam did not oppose the application.
Learned Counsel for the 2nd Respondent, Mr. O. Akoni SAN opposed the application. He observed that the. Record of Appeal was compiled, and transmitted to this Court and served on the parties sometime in August, 2008, but it was only in April, 2010 that the Appellant filed his brief. He further observed that the affidavit in support did not state when the applicant was served the Record of Appeal and why he was unable to file his Brief within 10 days after he was served with the Record of Appeal. Relying on Section 5 of the Practice Direction No. 2 of 2007 he further observed that there has been non compliance with the said provision and the application should be dismissed for want of diligent prosecution.
The Appellant/Applicant now seeks by this application two prayers to wit:
(a) An order extending the time within which the Appellant may file his Brief;
(b) An order deeming the Appellants Brief already filed as an independent and separate process and served, as properly filed and served on all the Respondents.
Prayers 1 and 2 abandoned are hereby struck out.
Order 7 Rule 10 of the Court of Appeal Rules 2007 confers on the Court of Appeal power to enlarge or extend time provided by the rules for the doing of anything to which the rule apply. There is also a similar power under Section 24(4) of the Court of Appeal Act.
The power is discretionary. It must at all times be exercised judicially and judiciously. That is to say with correct; and convincing reasons. See Wilbahi Haulage Ltd. v. Anambra Motor Manufacturing Co. (Anammco) Ltd 2009 All FWLR Pt. 485 P. 1790. Federal Housing Authority v. Abosede 1998 2 NWLR pt. 537 p. 117.
In this application, a Judge would be said to have exercised his discretion judicially and judiciously, when the affidavit in support of the application contains depositions which show good and substantial reasons why the appellant failed to file his brief within the prescribed period. The Practice Direction No 2 of 2007 provides in Section 5 that the Appellant shall file his brief within 10 days after he is served with-the Record of Appeal, and the Practice Direction is emphatic that the provision therein shall be strictly observed by all the parties.
Now, relevant extracts of the affidavit in support to explain the delay in filing the Appellants brief reads as follows:
3. That I know as facts:
(a) That the Appellant is being dissatisfied with the decision of the Governorship and Legislative Houses Election Tribunal, Adamawa State Holden in Petition No: AD/EPT/GOV/1/2008 delivered on the 15th day of July, 2008 appealed to this Honourable Court in terms of the of Notice of Appeal attached hereto and marked as Exhibit.
(b) That by the practice Direction guiding proceedings in this appeal, the Appellant was supposed to within ten (10) days compile .and transmit the Record of Proceedings to this Honourable Court.
(c) that the Secretary of the Lower Tribunal was unable to compile and transmit the Record of Appeal within the time stipulated by the Direction of this Honourable Court.
(d) That upon the failure of the Secretary of the Lower Court to compile and transmit the record long after the expiration of the time stipulated by the Rules of this Honourable Court, the Appellant was supposed to have done so within the time stipulated by the Rules of this Court.
(e) That the Appellant, was unable to compile and transmit the Records of Appeal after the failure of the Secretary to the Lower Tribunal, because of the paucity of funds to do so, particularly the distance to Adamawa State coupled with the Boko Haram crises that engulfed the Northern part of the country and also the Local Government Election crises that engulfed Plateau State which made movement in and out of the Stat a Herculean task.
(f) That the inability of the Appellant to compile and transmit the Record of Appeal was not deliberate, but due to the delay of the Lower Tribunal Registry in compiling Record within time.
(g) That as rightly deposed to by Counsel to the 1st Respondent in paragraph 4(c) of his supporting affidavit to the application to dismiss this appeal for want of diligent prosecution filed on the 11th of December, 2009 the failure to compile and transmit the Record of Appeal has not been that of counsel to the Appellant.
4. That the Record of Appeal has now been compiled and transmitted to this Honourable Court, and same has been duly served on all the Respondents.
5. That an order of this Honourable Court is necessary and most desirous to deem the transmitted Record of Appeal as duly compiled and transmitted.
6. That I know as a fact that upon the receipt of the Record of Appeal, we immediately settled the Appellants brief of argument.
7. That we discovered however that, because the Appellant was outside the prescribed period within which to file the appellants Brief, there was and there is still the need to seek the leave of this Honourable Court allowing the Appellant to file his appellants Brief within the time to be extended by the graciousness of this Honourable Court. Section 5, of the Practice Directions No. 2 of 2007 is a mandatory provision. The Appellant shall file his Brief within 10 days after he is served with the Record of Appeal.
Nowhere in the affidavit in support of this application does the deponent explain/state:-
(a) When the Appellant was served with Record of Appeal.
(b) Why the Appellant was unable to file his Brief within 10 days after he was served the Record of Appeal.
An affidavit in support of an application for extension of time to do anything the Rules provide for must be comprehensive on details. Put in another way, the only good reason that would enable the Court exercise its discretion to grant this application would be a detailed explanation reasonable enough to show why the Appellant was unable to file his Brief within 10 days after he (the appellant) was served with the Record of Appeal.
The Record of Appeal was certified as a true copy on 28/8/08, transmitted to this Court and served on the parties sometime in Augus, 2008. The affidavit in support is silent on when the Appellant was served Record of Appeal and why he did not file his brief within 10 days thereafter. Instead the affidavit attempts to explain delay in filing Appellants Brief after the 10 days prescribed by the Rules.
No reason or explanation has been given to explain why the Appellant filed his brief on 27/4/10 when he was served with the Record of Appeal in August, 2008. Where no credible excuse is given for the delay no indulgence can be granted.
Learned Counsel for the Appellant/Applicant asked us to be magnanimous in hearing the appeal. I must say that in applications which call for the Judge to exercise his discretion there is no room to be magnanimous, or emotional, or to act on his whim and fancies. Exercise of discretion entails the Judge acting within the confines of the rules governing the particular application and not as he likes.
See: Nzeribe v Dave Engineering Co Ltd 1994 8 NWLR Pt. 361 P. 124. An exercise of discretion by a Judge in clear breach of the law or rules governing the application would be held to be perverse. See: Akujinwa v. Nwaonuma 1998 13 NWLR pt. 583 p 632.
Since no good and substantial reason has been given by the Appellant/Applicant for failure to file his brief within the prescribed period, it would be correct to say that the application lacks merit.
The Application is hereby dismissed.
UZO NDUKWE-ANYANWU J.C.A: I had the privilege of reading in draft form the Ruling just delivered by my learned brother Rhodes-Vivour JCA.
I agree that the Appellant has not disclosed any cogent reason why he failed to file his brief within the prescribed time. Where there is no cogent reason, the Court has nothing to persuade it to exercise its discretion in favour of the applicant.
This application therefore lacks merit and is hereby dismissed.
ABUBAKAR DATTI YAHAYA, J.C.A: I agree.
Appearances
T. E. Williams (SAN);
Chief L.D. NzadonFor Appellant
AND
O. Akoni (SAN);
A.S. Oyinloye Esq.,
O. I. Akasi)
Akanmode A. J.;
Fadinatu MusaFor Respondent
