HON. UMAR ABUBAKAR GANGAR & ANOR v. HON. YUSUF MOHAMMED BAKO & ORS (2019)

HON. UMAR ABUBAKAR GANGAR & ANOR v. HON. YUSUF MOHAMMED BAKO & ORS

(2019)LCN/13677(CA)

In The Court of Appeal of Nigeria

On Monday, the 22nd day of July, 2019

CA/J/EPT/BA/HA/243/2019(R)

RATIO

ELECTION PETITION: NATURE

Being an election matter, which is sui generis, time is of essence. Paragraph 9 of the Practice Direction is mandatory; as such this Court has no discretion to extend the time for taking any further steps. In Awojobi & Anor v INEC & Ors (2011) LPELR 9094 (CA) this Court opined thus:
?Election Petitions are sui-generis and the procedure inherent therein is peculiar to it. For instance, as time is of essence in election petitions, it is not within the competence of the Tribunal to entertain any application for extension of time, either by the petitioner or the Respondent regarding the petition, by way of taking further steps.
It is to be noted that even where the applicants have advanced good and substantial reasons for the delay, it is not within the competence of this Court to extend time and accommodate the applicants. PER ADZIRA GANA MSHELIA, J.C.A.

AFFIDAVIT: WHEN A COURT WILL ALLOW A DEFECTIVE AFFIDAVIT TO BE USED

There is no contrary evidence to show that the affidavit was not sworn before a person duly authorized. Section 113 of the Evidence Act provides that the Court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the Court is satisfied that, it has been sworn before a person duly authorized. See Atayi Farms Ltd v N.A.C.B Ltd(2003) 4 NWLR (Pt.810) 427, (2002) LPELR ? 7076 (CA), Colito (Nig.) Ltd & Anor v Honourable Justice Titi Daibu & Ors (2009) LPELR ? 8216 (CA), BAA v Damawa Emirate Council & Ors (2013) LPELR -22068 (CA). PER ADZIRA GANA MSHELIA, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

1. HON. UMAR ABUBAKAR GANGAR
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)

AND

1. HON. YUSUF MOHAMMED BAKO
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

ADZIRA GANA MSHELIA, J.C.A.(Delivering the Lead Ruling): By Motion on Notice dated 1st day of July, 2019 and filed on 2nd day of July, 2019 the Appellants/Applicants sought for the following reliefs:
1. AN ORDER FOR EXTENSION OF TIME within which the Appellants/Applicants will transmit the records of appeal in this case out of time.
2. AN ORDER deeming the Record of Appeal already transmitted in this case on the 23rd June, 2019 as properly transmitted and served on all parties to this case.
3. AN ORDER deeming the Appellants? Brief of Argument already filed on 20th June, 2019 and served on all parties to the case as duly filed and served.
And for such further or other orders the Honourable Court may deem fit make (sic) in the circumstance.?

The grounds upon which this application is predicated are as follows:
1. The Honourable Tribunal delivered its Ruling on the 25th May, 2019 refusing the Appellants/Applicants application to file additional witness statement on oath.
2. The Appellants/Applicants filed their appeal against the refusal of the application to file additional witness statement on

oath on the 6th day of June, 2019 within time.
3. The Secretariat of the Tribunal was approached to prepare the record of appeal but they insisted on collecting the sum of N500,000.00 which the 1st Appellant who is financing the case could not arranged.
4. The Secretariat of the Tribunal subsequently asked the Appellant to compile the record himself since he could not pay the amount demanded.
5. The Compilation of the record was completed on the 24th June, 2019 transmitted on the 25th June, 2019.

?In opposing the application 1st Respondent filed a 5 paragraph Counter-Affidavit deposed to by Aisha M. Zakari litigation secretary in Doka Chambers on 11th July, 2019. Attached to the affidavit is Exhibit ?YMB1? and ?YMB2?.

Similarly the 2nd Respondent in opposing the application filed a 5 paragraph counter-affidavit on 9th July, 2019 deposed to by litigation secretary in An-Nur Chambers, by name Usman Muhammed Nasir. Attached to the Counter-Affidavit are Exhibits ?A? and ?A1?.
The 3rd Respondent did not file any Counter-Affidavit.

?When the application came up for hearing, all counsel

were directed to make oral submission. In arguing the application, learned counsel for the Appellants/Applicants submitted that the application is predicated on 5 grounds. Counsel submitted that the application is brought under Paragraph 55 of the 1st Schedule to the Electoral Act as amended and Order 8 Rule 4 of the Court of Appeal Rules, 2016. Counsel conceded that the Practice Direction 2011 did not state the time within which Appellants/Applicants could compile and transmit record of appeal. Learned counsel relied on the 6 paragraph affidavit deposed to by Aondover Seember the litigation secretary. Learned counsel urged the Court to exercise its discretion in favour of the Appellants/Applicants so that they could exercise their constitutional right to appeal. That if the application is refused the appeal will terminate without same being considered on merit. He urged the Court to exercise its discretion in favour of the Appellants/Applicants. Learned counsel further submitted that the 1st and 2nd Respondents filed Counter-Affidavits. According to counsel the gravamen of their objection is that the affidavit in support of the application was written as sworn

to at the High Court registry, but same was sworn to before the Court of Appeal. Counsel contended that the defect is as to form and cannot vitiate the application. He urged the Court to invoke S.113 of Evidence Act and allow the use of the affidavit.

In response learned counsel for the 1st Respondent relied on the 5 paragraph counter affidavit in opposing the application. Counsel submitted that the affidavit in support did not show that it was deposed to before commissioner for oaths of this Honourable Court. That it shows it was sworn to before High Court Registry Bauchi State. That Section 113 of the Evidence Act did not say that applicant?s affidavit can be relied upon in the circumstances of this case. That defect in form as to where the affidavit is sworn to is a complete violation of the rules governing oath taking. According to counsel the motion is incompetent as same is contrary to Order 6 of the Rules of Court.

?Learned counsel further referred to paragraph 9 of the Election Tribunal and Court Practice Direction 2011 as it relates to filing of record of appeal. Paragraph a permits the registrar to compile and transmit record within 10

days and serve same on parties. Counsel referred to paragraph 3-e-I of their Counter-Affidavit which shows that Appellants were invited to settle record but they failed to appear. That even the secretary has no right to apply for extension of time. Counsel submitted that election matters are sui generis as such the application cannot be accommodated by the Court and issue of fair hearing cannot be invoked in the circumstances. He urged the Court to refuse the application.

Learned counsel for the 2nd Respondent Daniel Esq. in opposing the application relied on the 5 paragraph Counter-Affidavit, in urging the Court to refuse the application.

While on behalf of the 3rd Respondent who did not file a Counter-Affidavit. Mr. Daniel Esq. aligned himself with submission of both 1st and 2nd Respondents and urged Court to dismiss the motion.

In his reply learned counsel for the Appellants referred to the case of Folabi v Folabi 1976 LPELR SC 112/75 and submitted that non-stating of the rule under which the application is brought do not vitiate the application. Counsel maintained that the affidavit was sworn to before the Court of Appeal as such it is

valid.

The issue to resolve is whether Appellants/Applicants can be granted extension of time under the circumstances to compile and transmit their record of appeal to this Court out of time. Learned counsel for the Applicants had submitted that the application was brought pursuant to Paragraph 55 of the 1st Schedule to the Electoral Act as amended. For ease of reference Paragraph 55 is reproduced thus:
?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.?
According to Applicants? counsel Order 8 Rule 4 of the Court of Appeal Rules 2016 can be invoked in the circumstances. It is to be noted that Paragraph 55 ended with these words. ?Regard being had to the need for urgency on electoral matters?. Because of the urgency associated with electoral matters the President of the Court of Appeal put in place the Election Tribunal and Court Practice Direction 2011.

Everything connected with the Court Practice and Procedure in election matters that are time bound are provided in the Practice Direction, 2011. The Practice Direction clearly states:
?This Practice Direction shall apply and be observed in the Election Tribunals and in the Court of Appeal when sitting as a tribunal or when hearing an appeal from the Tribunal?.
This in my view clearly excludes the application of Order 8 Rule 4 of the Court of Appeal Rules, 2016 in matters relating to Election Petition or Appeals. It could only apply if the practice Direction was silent on the issue of compilation of record, in particular.
The relevant provisions relating to compilation of record are Paragraphs 7, 8 and 9 of the Practice Direction 2011. The said paragraphs are hereunder reproduced for clarity and ease of reference thus:
?7. At the filing of the notice of Appeal, the Appellant shall
(a) Pay to the Secretary such fees as he may determine having regard to the bulk of the record of proceedings which he shall compile;
(b) Furnish as many copies as there are Respondents in addition to twenty (20) extra copies; and

(c) Pay a fee for service on all the Respondents.
8. The Secretary shall immediately upon the receipt of the Notice of Appeal, cause to be served on all the Respondents copies of the Notice of Appeal.
9. The Secretary shall within a period of not more than 10 days of the receipt of the notice of appeal, cause to be compiled and served on all the parties, the record of proceedings?.
By Paragraph 7(a), Appellant was required to pay fees to enable the secretary prepare or compile the record of appeal. Appellant admitted in paragraph 3c. of the affidavit in support of the motion that he was asked to pay sum N500,000.00 for the compilation of the record, which he failed to make available to the secretary of the Tribunal. By Paragraph 9 of the Practice Direction, it was mandatory for the secretary to compile and serve on all parties the record of proceedings, within 10 days of the receipt of the Notice of Appeal. In the instant case the Notice of Appeal was filed on 06/06/2019. The record of appeal in this case ought to have been compiled and transmitted to this Court on or about the 15th day of June 2019. The record under consideration was

transmitted to this Court on 25/06/2019 outside the period required by the Practice Direction. It is clear from the circumstance that Appellants are to blame for failure to pay required fees for compilation of the record of appeal. It is trite that an appellant ought to prosecute his case diligently.
Being an election matter, which is sui generis, time is of essence. Paragraph 9 of the Practice Direction is mandatory; as such this Court has no discretion to extend the time for taking any further steps. In Awojobi & Anor v INEC & Ors (2011) LPELR 9094 (CA) this Court opined thus:
?Election Petitions are sui-generis and the procedure inherent therein is peculiar to it. For instance, as time is of essence in election petitions, it is not within the competence of the Tribunal to entertain any application for extension of time, either by the petitioner or the Respondent regarding the petition, by way of taking further steps.?
It is to be noted that even where the applicants have advanced good and substantial reasons for the delay, it is not within the competence of this Court to extend time and accommodate the applicants.

As regards the argument relating to the defectiveness of the affidavit in support of the motion paper, I am of the humble view that the defect is not so fundamental as to render same liable to be struck out. The Court of Appeal stamp and signature appearing on the affidavit shows that the deponent signed the affidavit before the person duly authorized. It is also evident that the Commissioner for Oaths duly signed the affidavit as the person duly authorized to do so. The error made as to the place the affidavit was sworn to i.e stating ?High Court of Justice Bauchi State? instead of the Court of Appeal, Jos cannot in my considered view render the affidavit fundamentally defective. ?The Respondents did not complain about the genuineness of the Court of Appeal stamp appearing on the affidavit. There is no contrary evidence to show that the affidavit was not sworn before a person duly authorized. Section 113 of the Evidence Act provides that the Court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the Court is satisfied that, it has been sworn before a person duly authorized.

See Atayi Farms Ltd v N.A.C.B Ltd(2003) 4 NWLR (Pt.810) 427, (2002) LPELR ? 7076 (CA), Colito (Nig.) Ltd & Anor v Honourable Justice Titi Daibu & Ors (2009) LPELR ? 8216 (CA), BAA v Damawa Emirate Council & Ors (2013) LPELR -22068 (CA). I am satisfied that since the affidavit was signed and sworn before a person duly authorized same can be accepted as valid in the circumstance.

Flowing from the reasons stated hereinabove, prayers 1 and 2 cannot be granted. The prayer for extension of time to compile and transmit record of appeal out of time is hereby refused. Since the prayers for extension of time is refused the order to deem the Appellant?s Brief as properly filed and served cannot also be granted as it will serve no useful purpose. Application is hereby refused.

UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the well set out ruling of my brother, Adjiza Mshelia, JCA(PJ) delivered on 22nd July, 2019 dismissing the Motion on Notice filed on 2nd July, 2019 by the Appellants/Applicants. I agree with the conclusion and reasons for which the application was refused.

?The fact that election petition matters are sui generis is no longer

news, In JOSIAH JOHN AJI v. TANIMU MOHAMMED DANLELE & ORS 2015 LPELR-40362 (CA); this Court per Onyemenam, JCA stated in relation to the nature of election petition proceedings thus:
“it is now a chorus which I must sing here again, that election matters are sui generis and as such must be conducted strictly in compliance with the laws and rules guiding them. See PDP V. INEC (2014) 7 NWLR(PT.1437) 525.”
Also in OGBORU v.OKOWA (2016) 11 (PT. 1522) 84 @ 142; where Peter-Odili JSC declared on the nature of election petition while quoting the decision of the Supreme Court in APC vs PDP (2015) 15 NWLR (PT.1481) 1 AT PARAS B-E thus:
“I think that I should repeat it that proceedings in election petition are sui generis. They are in a class of their own. They are made to fast- track the hearing of the petition.”

By the Election Petition and Court Practice Directions, 2011, the compilation and transmission of records of proceedings from the tribunal to the Court of Appeal is not regulated by Order 8 of the Court of Appeal Rules, 2016 as in the ordinary civil proceedings. ?Rather, the compilation transmission of records in election petition

related matters is governed by Paragraph 9 of The Election Petition and Court Practice Directions, 2011. The referred Paragraph 9 of the Practice Directions provides thus:
“The Secretary shall within a period of not less than 10 days of the receipt of the notice of appeal, cause to be compiled and served on the parties; the record of proceedings.”
From the above provision of the Practice Directions which must be followed strictly, in election petition matters there is no provision for the Secretary of the Tribunal to invite the parties for the settlement of records. Neither the Appellant nor the Respondent is involved in the settlement of records and the Secretary of the Tribunal has only 10 days to compile the records and serve on the parties.
The implication of the use of the word ‘shall’ in the Practice Directions is that the Appellant upon the fulfilment of his roles as provided for paragraphs 7 and 8 of the Directions; the Secretary cannot fail to compile and transmit the records within 10 days for the fact that the time stipulated by the Practice Directions cannot be extended. The law is set that any time stipulated or allotted for

the doing of a thing in any election matter which is time bound, is like Mount Zion or the Rock of Gibraltar which cannot be enlarged, expanded, extended or moved and anything done outside the time so fixed by the law or rule is of no moment. OKECHUKWU V. INEC (2014) 17 NWLR (PT.1436)255; BRIG-GEN MOHAMMED BABA MARWA & ANOR V. ADMIRAL MURTALA NYAKO & ORS (2012)6 NWLR(PT.1256) 199; PEOPLES DEMOCRATIC PARTY V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2014) 17 NWLR (PT.1437) 525, AMADI V. INEC (2013) 4 NWLR (1345) 595; ACN V. INEC (2013) 13 NWLR (PT.1370)161.
Equally, the word shall in paragraph 9 depicts that an Appellant cannot apply for extension of time to compile and transmit records in an election matter for the reason that the Practice Directions did not provide for the compilation and transmission of records by the Appellant.
Flowing from what I have said above is that, the Appellants herein in Motion on Notice filed on 2nd July, 2019 should not be heard to urge the Court to grant them an extension of time to perform an act which the Practice Directions has not endued them with the right to. I accordingly also dismiss the application

for lacking in merits.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead ruling of my learned brother Adjiza Mshelia, JCA(PJ) and I am in agreement with his reasoning and conclusion. I also refuse the application.

Appearances:

M.J Tula, Esq. with him, M.A. Tsuwa, Esq. and J.T. Kuleve, Esq.For Appellant(s)

A.A. Sangei with him, S.G. Oyafemi, Esq. A.A. Isa, Esq., S.Y Mangai, Esq., I.H. Abdullahi, Esq. and A.L. Mohammed, Esq. for 1st Respondent.
S. Danjuma for 2nd Respondent.
O.T Daniel for 3rd Respondent.For Respondent(s)

Appearances

M.J Tula, Esq. with him, M.A. Tsuwa, Esq. and J.T. Kuleve, Esq.For Appellant

AND