HON. EZE NWOLOKI & ANOR v. HON. UZOMA ABONTA & ANOR
(2019)LCN/13740(CA)
In The Court of Appeal of Nigeria
On Monday, the 5th day of August, 2019
CA/OW/EPT/FHA/20/2019
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. HON. EZE NWOLOKI
2. ALL PROGRESSIVE GRAND ALLIANCE Appellant(s)
AND
1. HON. UZOMA ABONTA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS Respondent(s)
RATIO
WHETHER OR NOT ELECTION PETITIONS ARE SUI GENERIS
Furthermore, it is in my considered view clear from the re-produced portion of the judgment in the ONYEMA case (supra) that this Court as at then clearly appreciated the position that election matters and appeals therefrom, being sui generisdo not admit of extension of time at the instance of the parties therein,for the doing of anything or taking of any step stipulated to be done in the matters/appeal within specified period or periods. This, position amongst others, is what cases such as Okechukwu v. INEC (2014) 17 NWLR (Pt. 1436) 255 and Audu v. Wada (2016) 12 NWLR (Pt. 1527) 382, relied upon by learned SAN, have reiterated with the finality attaching to the decisions of the Supreme Court. See also the case of PDP V. INEC (2014) LPELR ? 23808 (SC) wherein, the Supreme Court stated thus: –
?It has been stated in quite a number of decisions in this Court that election matters are sui generis and as such must be conducted strictly in compliance with the rules guiding them. Thus by Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), this Court shall hear appeals from the Court of Appeal arising from election matters within sixty (60) days from the date of the delivery of the judgment appealed against. In order to regulate and manage the 60 days allotted by the Constitution, the Practice Directions has prescribed time within which each party is to comply with the processes leading to the hearing of the appeal. PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This interlocutory appeal was brought by the Appellants against the part of the ruling delivered on 27/5/2019, by the National and Houses of Assembly Election Tribunal holden at Umuahia, Abia State (hereafter to be simply referred to as ?the Tribunal?), dismissing Election Petition No. EPT/AB/REP/002/2019 ? HON. EZE NWOLOKI &ANOR. V. HON. UZOMA ABONTA & ORS (hereafter to be simply referred to as ?the petition?), against the 1st and 3rd Respondents therein. The Tribunal consisted or was made up of Hon. Justice A.A. Aderibigbe (Chairman) and Hon. Kadi M.Y. Usman and Hon. Justice Animahun as members 1 and 2 respectively.
The Appellants as Petitioners, on 15/3/2019, filed the instant petition against a total of 29 Respondents. The Respondents are: (1) Hon. Uzoma Abonta; (2) Peoples Democratic Party (hereafter to be simply referred to as ?PDP?); (3) Independent National Electoral Commission (hereafter to be simply referred to as ?INEC?); and 26 other named parties. The Respondents whose names have been set out
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hereinbefore were 1st, 2nd and 3rd Respondents respectively, in the petition. The other named parties listed as the 4th ? 29th Respondents respectively, were officials/agents of INEC that conducted the election held on 23/2/2019, in respect of the House of Representative for Ukwa East/Ukwa West Federal Constituency, Abia State. The aforementioned 4th ? 29th Respondents, it would appear were struck out as parties in the petition at a point in time. The Appellants by their petition are challenging the declaration of the 1st Respondent as the winner of the election aforementioned above, by the 3rd Respondent. The grounds of the petition as set out in the said petition are as follows: –
?(10) That the 1st respondent was not duly elected by the majority of lawful votes cast at the election.
(11) That in a proper computation of the votes cast, the petitioner (sic) won the election by majority of lawful votes.
(2) (sic)That the election was invalid by reason of corrupt practices and use of thugs and security agents to disrupt same by the 1st respondent.
(3) (sic) That the election was invalid by reason of non-compliance with the
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provisions of the Electoral Act and extant Guidelines.?
In paragraph (40) of the petition, it is stated thus: –
?The petitioners therefore plead that the election and/or return of the 1st respondent be cancelled.
WHEREFORE the petitioner (sic) prays as follows:
(c) That this Honourable Tribunal nullifies the return of the 1st respondent pursuant to the said election conducted on 23rd February, 2019 into the Ukwa East/Ukwa West Federal Constituency and orders a fresh election for not securing majority of lawful votes cast.
(d) That this Honourable Tribunal nullifies the return of the 1st respondent pursuant to the said election conducted on 23rd February, 2019 into the Ukwa East/Ukwa West Federal Constituency and orders a fresh election as a result of obvious irregularities, thuggery, violence and non compliance (sic) with the Electoral Act.
ALTERNATIVELY
A declaration that by the computation of lawful and valid votes, the 1st petitioner rather than the 1st respondent won the election for the House of Representatives in the Ukwa East/Ukwa West Federal Constituency.?
In the ruling of the Tribunal,
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delivered on 27/5/2019, it is glaring that the Tribunal suo motu observed that the application for the issuance of pre-hearing notices was not validly issued and called on the counsel for parties in the petition to address it (i.e. Tribunal) on the competence i.e. ?whether the Petitioners can rely on the application for pre-hearing dated 02/5/2019 in respect of the 3rd Respondent and whether the Petitioners can rely on the application against the 1st Respondent?
Having highlighted the submissions of counsel on the issues raised by it (Tribunal), both the Chairman and member 1 dismissed the petition against the 3rd and 1st Respondents respectively therein. In doing this, they stated thus: –
?Accordingly, the application is valid against the 2nd Respondent. It is invalid against the 3rd Respondent. The petition is accordingly dismissed against the 3rd Respondent. The application having been issued before pleadings closed between the Petitioners and the 1st Respondent is premature and cannot avail the Petitioners. The petition is also dismissed against the 1st Respondent.?
Member 2 ? Hon. Justice W. Animahun, dissenting,
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concluded his ruling thus: –
?Accordingly, I hold that it suffices for the first application for issuance of pre-hearing forms to commence pre-hearing sessions with all the Respondents. The application made by the Petitioners on 2/5/2019 against the 3rd Respondent was filed out of time because pleadings closed between them on 23/4/2019. The petition is accordingly dismissed against the 3rd Respondent. The application was filed against the 2nd Respondent within time and filed prematurely against the 1st Respondent. In view of my above decision, I hold that it is valid against 1st and the 2nd Respondents.?
Being aggrieved by the ruling of the Tribunal dismissing their petition against the 1st and 3rd Respondents respectively, the Appellants initiated the instant appeal by filing on 10/6/2019 a notice of appeal dated 6/6/2019. The notice of appeal contains two grounds of appeal and the said grounds shorn of their respective particulars read thus: –
?GROUNDS OF APPEAL
(1). GROUND ONE: ERROR IN LAW
The learned lower Tribunal erred in law when it held that by Paragraph 18 of the 1st Schedule to the Electoral Act 2010 (as amended)
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read in conjunction with Paragraph 49 of the said Schedule, that the petitioners were required to file separate application for prehearing notice per respondent upon the close of pleadings between each of them.
GROUND TWO: ERROR INLAW
The learned Tribunal erred in law when it held that pre-hearing notice application filed by the petitioners on the 2nd day of May was ineffectual as against the 1st and 3rd respondents.?
The relief which the Appellants seek from this Court as set out in the notice of appeal reads thus: –
?To set aside the decision of the lower Tribunal dismissing the petition against the 1st and 3rd respondents, hold that the application for issuance of pre-hearing notice filed by the petitioners was proper.?
?
On 29/7/2019, when the appeal came up for hearing, learned counsel for the Appellants disclosed that the said Appellants have a motion on notice filed on 25/7/2019, in relation to the record of appeal in the appeal lodged by the said Appellants, pending before the Court. Relying on the supporting affidavit, he moved the said motion in terms. Dwelling on the counter affidavit filed in the
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motion by the 1st Respondent, learned counsel submitted that the process in question, does not relate to the orders being sought in the Appellants? motion. Learned counsel cited the case of Ani v. Otu (2017) 13 NWLR (Pt. 1578) 31 at 53, in support of his stance that the Court can properly grant the prayers being sought by the Appellants.
?Learned senior counsel, Nwufo, SAN, for the 1st Respondent, in opposing the motion relied on the counter affidavit filed on 29/7/2019, in opposition to the said motion. Learned SAN, submitted that the issue is,?whether a record of appeal in respect of an election petition can be compiled after 10 days as stipulated by the Election Tribunal and Court Practice Directions, 2011 (hereafter to be simply referred to as ?ET & CP Direction, 2011?) Learned SAN, having answered the question in the negative, urged the Court to refuse the motion and consequently to dismiss the appeal as it would have no record of appeal on which it is founded.
Learned counsel, Nwugo (Mrs) for the 2nd Respondent associated herself with the position of learned SAN. She further submitted that the instant motion
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would appear to be academic as the substantive petition had been dismissed since 21/6/2019, by the Tribunal. She urged the Court to dismiss the motion and the appeal.
Responding, learned counsel for the Appellants, said that if the Court found that the record of appeal is not properly before it, and cannot be regularised, he will be urging the Court to strike out the appeal and not for it to be dismissed.
The orders sought by the Appellants in the motion on notice dated 24/7/2019 and filed on 25/7/2019, and moved on 29/7/2019, read thus: –
?(1) An order granting leave to the appellants to compile and transmit the record of appeal in the appeal in petition number EPT/AB/REP/002/19 HON EZE NWOLOKI & OR VS HON UZOMA ABONTA & ORS.
(2) An order deeming the record of appeal already compiled and transmitted by the appellants to this Court and entered as appeal No. CA/OW/EPT/FHA/20/2019 HON EZE NWOLOKI & OR VS HON UZOMA ABONTA & OR. as properly compiled and transmitted, necessary fees having been paid for same.
(3) An order deeming the brief of argument of the appellants as properly filed necessary fees having been paid
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for same.?
The grounds for the application are as follows: –
?(1) There is a need to hear this appeal on the merit.
(2) The secretary of the lower Tribunal was unable to compile the records of appeal within 10 days as provided by the practice direction.
(3) The appellants, desirous of having the appeal heard because of time constraint had to compile the said record of appeal.?
In the supporting affidavit of the motion on notice, it was deposed amongst others as follows: –
?Paragraph (3)
That the appellants filed an appeal against the ruling of the lower Tribunal on the 10th day of June, 2019. By the Election Tribunal Practice Direction 2011 the secretary of the Tribunal below was required to compile and transmit the record of appeal within 10 days of filing the Notice of Appeal.
Paragraph (4)
That thereafter we paid several visits to the registry of the lower Tribunal to persuade the secretary thereat to compile and transmit the record of appeal in this appeal to this Court but in all cases, we were told to exercise patience as they were compiling several others records of appeal.<br< p=””
</br<
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Paragraph (5)
That I am aware that the lower Tribunal decapitated many petitions before it and that several parties especially petitioners appealed against their decisions which virtually rendered the petitions useless.
Paragraph (6)
That many of the petitions at the lower Tribunal were voluminous and it took a lot out of the registry staff of the Tribunal to compile the records of appeal and transmit them to this Court.
Paragraph (7)
That while we were visiting the registry of the lower Tribunal daily and persuading the secretary thereat to compile the said record of appeal, the 10 days within which he was to do that expired.
Paragraph (8)
That the appellants now instructed Chief Charles U. Eduzor, the principal in chambers, in my presence to take steps to compile and transmit the said record of appeal to enable them prosecute this appeal.
Paragraph (9)
That the said counsel now took steps to compile and transmit the said records on 10th day of July, 2019. To show seriousness also the appellants? brief was also filed on the same day.
<br< p=””
</br<
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Paragraph (10)
xxxx
Paragraph (11)
That the respondents have all filed their brief (sic), however, the 1st respondent while conceding that the appellant could compile the said records merely said it ought to be by leave of either the lower Tribunal or this Court.
Paragraph (12)
That I reasonably believe that this application ought to be granted in the interest of justice as the appeal has since been entered in this Court.?
In the counter-affidavit of the 1st Respondent titled or headed ?Counter-Affidavit of Mrs. Geraldine Agama in opposition to motion on notice for extension of time to compile record of appeal?, it was deposed amongst others in paragraph 4 as follows: –
?(iii) The Appellants were not diligent in the compilation of the record as they merely filed their appeal and abandoned same.
(iv) That the Honourable Court lacks the jurisdiction to extend time within which to do anything stipulated in the Election Tribunal and Court of Appeal (sic) Practice Direction 2011.
(v) That the election petitions and appeals arising therefrom are sui
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generis and time bound wherein the time for the compilation of the record of appeal cannot be extended.
(vi) That this application for extension of time within which to compile the record of appeal is grossly incompetent.
(vii) That the 1st Respondent will be prejudiced on the grant of this application.?
Learned counsel for the Appellants submitted that the counter-affidavit of the 1st Respondent does not relate to the orders being sought in the Appellants? motion. The orders sought by the Appellants in their motion have been re-produced hereinbefore. I am of the considered view that it is clear as crystal from the said orders that what the Appellants are seeking is for the indulgence of this Court to regularise the position of the record of appeal in the instant interlocutory appeal and which record by their own showing was not compiled by the secretary to the Tribunal and also not transmitted to this Court by the said secretary to the Tribunal within the period of 10 days from the date of the filing of the Appellants? notice of appeal on 10/6/2019 as stipulated by paragraph 9 of ET & CP Direction, 2011. The record of
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appeal having been compiled by learned counsel for the Appellants was transmitted to this Court on 10/7/2019, under the cover of a letter dated 17/6/2019, signed by the Appellants? counsel. I am of the considered view that learned counsel for the Appellants must be in complete misapprehension of the purpose of the motion he brought vis-a-vis his stance that the counter-affidavit of the 1st Respondent titled or headed ?Counter-Affidavit of Mrs. Geraldine Agama in opposition to motion on notice for extension of time to compile record of appeal? does not relate to the orders being sought in the Appellants? motion. The counter affidavit of the 1st Respondent only disclosed that he saw clearly through the smoke screen as it were, that the Appellants put up in respect of what they want from the Court. In other words, all that the 1st Respondent disclosed in the counter-affidavit in question is the proper course of action the Appellants should have taken for the purpose of achieving their desired goal, i.e. the regularisation of the record of appeal in the instant appeal vis-a-vis the non-compilation and transmission of record of
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appeal. This is because it is inconceivable that an applicant seeking for the regularisation of the record of appeal that has not been transmitted within the periods stipulated by the relevant provisions of Order 8 Rules 4 and 5 of the 2016 Rules of this Court can achieve this purpose without seeking for an order extending the time within which he should have compiled and transmitted the record in question amongst other orders. Indeed, I am also of the considered view that it is in apparent acknowledgment or realisation by learned counsel for the Appellants that the said Appellants cannot take advantage of the provisions of the Rules of this Court in the instant interlocutory appeal without seeking for an order extending the time within which they are to compile and transmit the record of appeal in the instant appeal that they crafted the orders sought in the motion entertained by the Court without asking for appropriate orders that can enable the Court exercise its discretion (if it has any to exercise in election petition appeals), in their favour. Suffice, it to say that even if the Court can properly exercise any discretion to regularise the late
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compilation and transmission of the record of appeal in the instant appeal, the failure of the Appellants to have sought an order extending the time within which they are to compile and transmit the record of appeal the position of which they have sought to regularise, is fatal to the success of the motion before the Court and which makes the said motion liable to be dismissed without ado. In other words, the Appellants? motion having been argued on the merit is liable to be dismissed for the failure on their part to seeks for the appropriate orders to enable the Court grant the indulgence they seek.
?In any event, I am also of the considered view, that the position of the 1st Respondent that the record of appeal in respect of an election petition cannot be compiled after 10 days as stipulated by the ?ET & CP Direction, 2011?), if found to be correct is a serious handicap to the granting of the orders sought by the Appellants. The question therefore is, is the position of the 1st Respondent as stated hereinbefore and with which the 2nd Respondent associated itself, correct? This Court would appear to have given the provision of
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paragraph 9 of the ET & CP Direction, 2011, some consideration in the case of ONYEMA V. OGENE (2011) LPELR ? 9209(CA). In the case under reference, the 1st Respondent therein, by way of preliminary objection challenged the validity of the record of appeal before the Court at the hearing of the appeal in question. In resolving the said preliminary objection against the said 1st Respondent, I stated thus: –
?The preliminary objection of the 1st Respondent, if upheld will definitely terminate the instant appeal; hence the need to consider and resolve it first.
The 1st Respondent contended to the effect that the record of proceedings upon which the instant appeal is founded, was compiled and forwarded to this Court by the Appellant and that these, contravene the provisions of Paragraphs 7(a), (b) and (c); 8; and 9 of the Election Tribunal and Court Practice Directions 2011 (hereafter simply referred to as the Practice Directions”). The 1st Respondent said that only the secretary to the Tribunal (hereafter simply referred to as “the secretary”) is charged with the duty and conferred with the power to compile and transmit the record of
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proceedings in the instant appeal to this Court. Aside from also contending that the record of proceedings compiled and transmitted to the Court by the Appellant failed to comply with the provision of Order 8, Rule 7 of the Rules of this Court; the 1st Respondent further contended that the said record proceedings of was not compiled within the 10 days period stipulated in Paragraph 10 (sic) of the Practice Directions and that the Appellant did not procure any leave of Court before compiling and transmitting the said record of proceedings to this Court. In the premises, the 1st Respondent submitted that there is no jurisdiction in this Court to entertain the instant appeal as a condition precedent for the hearing of the appeal, to wit: a valid record of appeal has not been fulfilled. The Court was urged to strike out the appeal.
xxxxxxx
Responding to the preliminary objection in his Reply Brief, the Appellant in the main contended that he had to compile and transmit the record of appeal in this appeal himself given the failure of the secretary to so within the time frame stipulated for the
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purpose in the practice (sic) Directions. The Appellant cited the case of Chime v. Onyia (2009) 2 NWLR (Pt. 1124) 1 at 11 as deciding that the Practice Directions is regarded as part of the Rules of Court. The Appellant submitted to the effect that he was entitled to have compiled the record of appeal being challenged pursuant to Order 8 Rule 4 of the Rules of this Court, given the failure or neglect of the secretary to do so with (sic: within) the time frame provided by the Practice Directions.
The preliminary objection of the 1st Respondent aside from complaining that the record of appeal compiled by the Appellant has failed to comply with the requirements of Order 8 Rule 7 of the Rules of this Court, is also to the effect that the instant appeal has not been entered in this Court as there is no valid record of appeal before the Court.
It is glaring from the endorsement of the secretary on the face of the record of appeal being challenged, that the same was compiled by the Appellant’ (sic: Appellant?s) counsel and handed over to the secretary for certification on 26/7/2011. The Notice of Appeal by which the Appellant commenced this appeal as
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already stated is dated 13/7/2011 and filed at the Registry of the Tribunal on the same date. The Practice Directions, in Paragraph 9 unequivocally charges the secretary with the duty of compiling and serving all parties in a petition appealed against, with the record of proceedings and further commands that the secretary is to discharge the duty with which he is charged, within 10 days of the receipt of the Notice of Appeal at the latest or at most. There is nothing placed before the Court to show that the secretary did not compile talk less of serving all the parties in this appeal with the record of proceedings; due to any fault on the part of the Appellant. On the contrary, what is glaring from the endorsement of the secretary on the face of the record being challenged; is that the secretary without any reservation collected and certified the record of proceedings as compiled by the Appellant when it was presented to him on 26/7/2011. I am of the considered view that the secretary by certifying the record compiled and presented to him by the Appellant on 26/7/2011 without indicating thereon that the Appellant did the compilation himself due to any default
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on the part of the said Appellant (e.g. default of the Appellant to satisfy any of the conditions of appeal such as failure to pay the fees assessed for the compilation of the record), not only authenticated the contents of the record, but also tacitly acknowledged that the non-compilation of the record within the time frame stipulated in Paragraph g (sic: 9) of the Practice Directions, is due to some default on his (i.e. secretary’s) part.
Time is of the very essence in election matters, whether before the Tribunal or this Court in appeals from the Tribunal. Though it would be to the advantage of a respondent if the secretary neglects or refuses to act within the time frame stipulated in Paragraph 9 of the Practice Directions, it would however definitely be antithetical to the interest of an appellant to simply look on and do nothing in the face of the refusal or neglect on the part of the secretary to compile and serve all the parties in an Election Petition Appeal with the record of proceedings, within the time frame stipulated in the practice (sic) Directions.
There is no doubt that the Practice Directions are to be regarded as part of the Rules
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of this Court and complementary to the said Rules as decided in the case of Chime (supra) cited by the Appellant. Without prejudice to this, I however find the resort to Order 8 Rule 4 of the Rules of this Court in justification of the compilation of the record being challenged, by the Appellant dangerous. This is because reliance on the provision of the rule in effect connotes that the Appellant had a period of 30 days, to have compiled and served the record of proceedings, after the time within which the secretary ought to have acted expired. This would result in an appellant that has to compile the record of proceedings due to the refusal or neglect of the secretary to do so, having much more time for that purpose than the secretary has. Order 8 Rule 4 of the Rules of this Court clearly does not give a respondent (sic: appellant) that must compile the record of appeal, more time to do this, than that given to the registrar. The case of Chime (supra) amongst others dealt with the right of an appellant to file a reply brief in response to fresh issues raised in the respondent’s brief of argument and which process the Practice Directions then in force did not
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provide for. This Court relying on the complementary nature of Practice Directions to its Rules, said that an appellant was entitled to file and serve a reply brief by virtue of Order 17 Rule 5 of the Court of Appeal Rules 2007. It is worthy of note that the extant Practice Directions in Paragraph 13 has now specifically cured the lacuna in the Practice Directions No. 2 of 2007 in relation to “reply brief”. Paragraph 13 of the extant Practice Directions now provides for the filing of a reply brief by an appellant and limits the time within which such reply brief is to be filed, to “within 3 days of service of the respondent’s brief’. This in my view clearly shows that it is not intended that the periods for the doing of acts as provided for under the Rules of this Court are ipso jure applicable to the Practice Directions which specifically govern election appeals.
The provisions of the Practice Directions as they relate to appeals are specifically made for the expeditious determination or disposal of appeals arising from election petitions. It is not in doubt that this is against the backdrop of the provision of Section 285(8) of the 1999 Constitution (as amended) ?
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which stipulates a period of 60 days from the date of delivery of judgment by an Election Tribunal for an appeal against such decision to be heard and disposed of. By the provision in question, the time for the hearing and determination of an appeal against the decision of the Tribunal by this Court, starts to run against the Court at a point in time when the appeal has not even been entered in this Court. It would also appear that the President of the Court of Appeal in making the extant Practice Directions never envisaged that a secretary for any reason whatsoever would not be (sic) compile and serve the record of proceedings within a period of not more than 10 days of the receipt of the notice of appeal, talk less of the secretary refusing of neglecting to discharge these duties at all. If the President of the Court of Appeal had envisaged such situations as probable; provision akin to that of Order 8 Rule 4 of the Rules of this Court would have been made in the practice Directions with such provision specifying the time frame within which an appellant is to compile and serve the record of proceedings upon the default or neglect of the secretary to
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do so. This would clearly preclude an appellant that is forced by the default or neglect of the secretary to compile the record of proceedings by himself arrogating to himself the 30 days period provided for in Order 8 Rule 4 (which is clearly much more than the period of 10 days at most, from the date of the receipt of the notice of appeal allowed for compilation and service by the secretary) and thereby eating too deeply into the 60 days period from the date of delivery of judgment by the Tribunal, that this Court has to determine and dispose of an election appeal.
All that I have said before now, in my considered view, apparently explain why there is no provision in the Practice Directions for extension of time to do that which the secretary has failed or neglected to do within the time provided therefore or at all; unlike what obtains in the event of default to comply with Order 8 Rule 4 of the Rules of this Court, by a respondent (sic: an appellant). Similarly, I do not see how the Appellant can pursuant to any of the provisions of the Practice Directions or indeed the Rules of this Court, properly seek for the extension of time on behalf of the
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secretary to do what the said secretary should have done within a particular time frame, but failed or neglected to do.
It is however clear as crystal; that it definitely cannot be in the interest of justice for the Appellant in the instant appeal to bear the brunt of a default or omission that has not been shown to have been caused or occasioned by him. If this is done, or allowed to happen, it will set a bad precedent. This is because all any secretary that is minded to frustrate the hearing of an appellant’s appeal would simply need to do, is just to sit down and do nothing concerning compilation of record, even when the such appellant has sa1sfied (sic: satisfied) the conditions of appeal imposed on him. Accordingly, it is my considered view that where it is not established by a respondent challenging the record of proceedings in an election appeal that the non-compilation and service within the time frame provided by the Practice Directions of the said record is attributable to the appellant, then such a respondent challenging the validity of the record before the Court, has thereby failed to place any material before the Court to preclude it from
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utilizing the record of appeal subsequently prepared by the appellant and duly certified by the secretary who ought to have done the compilation in the first place. Against the backdrop of the following facts, namely, (i) that there is nothing showing that the record of appeal before the Court was compiled and served outside the time frame stipulated by the Practice Directions, due to any default on the part of the Appellant; and (ii) the secretary by certifying the record complied by the Appellant has not only glaringly authenticated the same, but has thereby also adopted the act of the Appellant in compiling the record as his; I hold that this Court cannot properly uphold the contention of the 1st Respondent that there is no valid record of appeal before it. The compilation of the record of appeal in the instant appeal outside the time frame stipulated by the Practice Directions inasmuch as it has not been shown to be due to any default on the part of the Appellant, amounts to no more than an irregularity occasioned by the secretary and the consequence(s) of which the Appellant cannot rightly bear. Accordingly, the preliminary objection of the 1st Respondent
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challenging the record of appeal in the instant appeal is overruled and dismissed. I will now consider the appeal on the merit.?
I am of the considered view, that the position I took in the case under reference, is that basically there is no power in an appellant to compile and transmit the record of appeal in an election appeal to this Court by himself; but that where the secretary to the Tribunal however adopts any record compiled by an appellant as having been compiled by him (registrar) and transmits the same to this Court, the record so transmitted in contravention of the 10 days period stipulated for its compilation and transmission by the registrar, is to be treated as irregular. This irregularity in my considered view can however be set aside by an application made timeously for that purpose.
In the instant appeal, a lot appears to be wrong with the record of appeal the position of which the Appellants seek regularise. Firstly, although it would appear that the registrar certified all the pages of the record on 10/6/2019 (i.e. the day the Appellants lodged their notice of appeal), the said record however was not transmitted to this
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Court by the registrar. It would therefore appear that the registrar to the Tribunal cannot be said to have put himself out as being responsible for the non-transmission of the record of appeal in the instant appeal, within the period stipulated for that purpose in paragraph 9 of the ET & CP Direction, 2011. Indeed, the Appellants would appear to not appreciate the fact that the certification of the record (the position of which they now seek to regularise) by the registrar to the Tribunal on 10/6/2019 (the very date on which they lodged their notice of appeal), is clearly antithetical to their stance that the said registrar could not attend to the compilation and transmission of the record in question, due to the volume of work he had to contend with as it were. This is more so as the Appellants whose lawyer on 17/6/2019 wrote a covering letter for the purpose of transmitting the record in question to this Court on 10/7/2019, never disclosed when they fulfilled whatever conditions of appeal the registrar to the Tribunal imposed on them. Against the backdrop of all that has been stated hereinbefore, I am therefore of the considered view that the theory of
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irregularity as it were, that was evolved in the ONYEMA case (supra)cannot be invoked in favour of the Appellants. The motion of the Appellants is again therefore liable to be dismissed.
Furthermore, it is in my considered view clear from the re-produced portion of the judgment in the ONYEMA case (supra) that this Court as at then clearly appreciated the position that election matters and appeals therefrom, being sui generisdo not admit of extension of time at the instance of the parties therein,for the doing of anything or taking of any step stipulated to be done in the matters/appeal within specified period or periods. This, position amongst others, is what cases such as Okechukwu v. INEC (2014) 17 NWLR (Pt. 1436) 255 and Audu v. Wada (2016) 12 NWLR (Pt. 1527) 382, relied upon by learned SAN, have reiterated with the finality attaching to the decisions of the Supreme Court. See also the case of PDP V. INEC (2014) LPELR ? 23808 (SC) wherein, the Supreme Court stated thus: –
?It has been stated in quite a number of decisions in this Court that election matters aresui generis and as such must be conducted strictly in compliance with the rules
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guiding them. Thus by Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), this Court shall hear appeals from the Court of Appeal arising from election matters within sixty (60) days from the date of the delivery of the judgment appealed against. In order to regulate and manage the 60 days allotted by the Constitution, the Practice Directions has prescribed time within which each party is to comply with the processes leading to the hearing of the appeal. It is thus my view that in circumstances such as this, no party is allowed to default and then turn around to plead the Interpretation Act. The combined effect of Section 285(7) of the 1999 Constitution (as amended) and Paragraph 6 of the Practice Directions is that they limit the doing of any act to the period prescribed period therein. Any action done outside the period prescribed is, to say the least, a nullity. The use of the word “shall’ in Paragraph 6 of the Practice Directions, makes it mandatory. No party or this Court has any direction in the matter. The 26th respondent was served on 22nd August, 2014. Its time started to run from that same date irrespective of the fact
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that it was served at 4.00 pm or thereabout. Accordingly it’s (sic) time for filing its brief expired on 26th August, 2014. The subsequent filing of the brief on 27th August, 2014 was done outside the time allowed by the Practice Directions. xxxxx. On the whole, On the whole, I hold that the brief of the 26th respondent filed on 27th August, 2014, having been filed in flagrant disobedience to Paragraph 6 of the Practice Directions is incompetent and is hereby struck out. xxxxxx?
The compilation and transmission of record of appeal, is clearly not a duty imposed on any party in an election petition appeal having regard to Paragraph 8 of the ET & CP Direction 2011. Duty in this regard, having not been vested in any of the parties in an election petition appeal, it follows in my considered view that the Appellants herein have no platform to stand on in seeking for the regularisation of the record of appeal in the instant interlocutory appeal under any guise or by resorting to any order(s) howsoever crafted. This being the view I hold, it would therefore appear that the question posed and answered in the negative by learned SAN to
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wit: ?whether a record of appeal in respect of an election petition can be compiled after 10 days as stipulated by the Election Tribunal and Court Practice Directions, 2011?, is at large. However, if reframed to read ?whether the record of appeal in respect of an election petition can be compiled after 10 days as stipulated by the Election Tribunal and Court Practice Directions, 2011 by an appellant?, it must be answered in the negative.
Flowing from all that has been said, is that inasmuch as it is the Appellants that are seeking to regularise the position of the record of appeal in the instant interlocutory appeal (and as it is obvious that the theory of irregularity evolved in the Onyema case (supra) is unavailable to them), the instant motion more than ever must be refused and dismissed as the ET & CP Direction 2011, does not give them any power or right to seek for what they want.
?The Tribunal delivered its ruling the Appellants have appealed against on 27/5/2019. The Appellants lodged their notice of appeal in respect of the instant interlocutory appeal at the registry of the Tribunal on 10/6/2019. This, apparently
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was done within the 21 days provided for in paragraph 6 of the ET & CP Direction, 2011. However, the Constitution provides in Section 285(7) thus: –
?An appeal from a decision of an election Tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal or Court of Appeal.?
If 27/5/2019 is taken as the date of the delivery of the ruling/judgment appealed against, (and in my considered view this should be so), then it is obvious that the instant interlocutory appeal (in which the Appellants were seeking to regularise the position of their record on 29/7/2019), had lapsed as at 25/7/2019; due to no fault of this Court. On the other hand, if the period of 60 days within which the Court is to entertain the instant interlocutory appeal and give its judgment, is taken as commencing on 10/6/2019, when the notice of appeal was filed (and I do not consider this to be right), then the said appeal will lapse on 8/8/2019, i.e. 3 days from today. The situation therefore is, what meaningful step can the Appellants who have not caused to be placed before this
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Court any proper record of appeal do within the said three days from today to remedy the irredeemable situation, particularly when the record which they wish to regularise cannot be treated as an ?irregularity?. The better course of action would therefore be, to dismiss the appeal for lacking in record as urged by learned SAN and learned counsel for the 2nd Respondent respectively. However, I don?t consider it expedient to dismiss the appeal for lacking in record of appeal, given the settled view that I hold that the appeal itself had lapsed as at the date ? 29/7/2019 when the Appellants argued their motion seeking to regularise the position of the record in the instant appeal. The Appellants it should be noted even filed their motion for the purpose of regularising the record in question, on 25/7/2019, the very day the appeal lapsed.
In the final analysis, the instant interlocutory appeal taken out in a petition which the Tribunal had in any case dismissed for lack of diligent prosecution since 14/6/2019, is struck out with N100,000.00 costs to the 1st Respondent. The Appellants should have seen the uselessness in taking any
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further step(s) in the pursuit of the instant interlocutory appeal on 29/7/2019, after their petition was dismissed on 14/6/2019. This is more so as the appeal itself lapsed on 25/7/2019.
RITA NOSAKHARE PEMU, J.C.A.: I agree
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege to read the judgment just delivered by my learned brother, Ayobode Olujimi Lokulo-Sodipe, JCA, and I am in complete agreement with his reasoning and conclusions. I have nothing useful to add. I abide by the order therein contained.
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Appearances:
Chief C.U.C. EduzorFor Appellant(s)
K.C. Nwufo SAN with him E.R. Iremeka for 1st Respondent.
O.C. Nwugo (Mrs.) for 2nd Respondent holding brief for Emeka Udeogba.
For Respondent(s)
Appearances
Chief C.U.C. EduzorFor Appellant
AND
K.C. Nwufo SAN with him E.R. Iremeka for 1st Respondent.
O.C. Nwugo (Mrs.) for 2nd Respondent holding brief for Emeka Udeogba.For Respondent