REV. DR. J.K.U. FAMOUS ENIMIKEMI (SJP) v. CHIEF TIMIPRE SYLVA & ORS.
(2007)LCN/2573(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of December, 2007
CA/PH/EPT/412M/2007
RATIO
APPEAL – RIGHT OF APPEAL : WHETHER APPEAL SHALL LIES AS OF RIGHT FROM THE DECISIONS OF ELECTION TRIBUNALS TO THE COURT OF APPEAL
“The said provisions are thus:- 246(1) An appeal to the Court of Appeal shall lie as of right from Decision of the National Assembly Election Tribunal and Governorship and Legislative House Election Tribunal on any question as to whether (i) (ii) Any person has been validly elected to the office of Governor or Deputy Governor, ” These provisions are quite clear and straightforward and so deserve and require interpretation that ascribes ordinary and grammatical meaning to them. The principle of law on this position is trite now that it can be said to be common knowledge. However as ossification thereof, see African Newspapers Ltd. v. F.R.N. (1985) 2 NWLR (Pt.6) 137; Salami v. Chairman, L.E.D.B. (1989) 5 NWLR (Pt.123) 539; Odua Investment v. Talabi (1997) 10 NWLR (Pt. 523) 1. Put simply, these provisions provide for an appeal as of right from a decision of the named Tribunal on any question as to whether any person has been validly elected to the office of Governor or Deputy-Governor. Accordingly, the right thereunder accrues and becomes exercisable once there is a decision on whether a person has been validly elected into the offices set out therein.” PER MOHAMMED LAWAL GARBA
APPEAL – RIGHT OF APPEAL : WHETHER BEFORE AN APPLICANT CAN CLAIM A RIGHT OF APPEAL HE HAS TO ESTABLISH THE EXISTENCE OF THE RIGHT EITHER FROM THE CONSTITUTION OR ELECTORAL ACT
“Before the applicant can properly claim a right of appeal in respect of which he can approach this court under the Court of Appeal Act and the Court of Appeal Rules, he has to establish the existence of the right either from the 1999 Constitution of Nigeria, or the Electoral Act, 2006 which regulate and govern all matters pertaining to elections, election petitions and appeals in the country. The only section that confers a right of appeal from decisions of the Election Tribunals to this court is S. 246 of the 1999 Constitution.” PER MOHAMMED LAWAL GARBA
JUSTICES
SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
REV. DR. J.KU. FAMOUS ENIMIKEMI (SJP) Appellant(s)
AND
1. CHIEF TIMIPRE SYLVA
2. RESIDENT ELECTORAL COMMISSIONER, BAYELSASTATE
3. THE ELECTORAL OFFICER, BAYELSA STATE
4. THE RETURNING OFFICER, BAYELSA STATE
5. THE HONOURABLE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, BAYELSASTATE
6. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
GARBA, J.C.A. (Delivering the Leading Ruling): The applicant in the motion filed on 4th October, 2007 is praying the court for the following orders: –
(a) Extension of time within which to apply for leave to appeal against the ruling of the Bayelsa State National Assembly Governorship and Legislative Election Tribunal delivered on 11th day of July, 2007.
(b) Leave of this Court to appeal against the said ruling/decision of the said tribunal.
(c) Extension of time within which to appeal against the said ruling/decision of the said tribunal.
(d) Deeming the notice of appeal exhibit UKM2 as duly filed and served by the petitioner/applicant having paid the appropriate filing fees and for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.
The motion was brought under Order 3 rule 4(1) and (2) of the Court of Appeal Rules, 2002 and supported by a 17-paragraphs affidavit sworn to by the applicant. Annexed to the sworn affidavit are records of proceedings of the Tribunal on 11th July 2007 containing a notice of appeal and a written address.
After service of the motion papers on them, the respondents filed counter affidavits as well as notices of preliminary objection to the motion. Learned counsel for the respondents also attached written submissions to their respective counter affidavits and notices of preliminary objection as was done by the learned counsel for the applicant. However up to the 4th of December, 2007 when the motion came up for hearing, there was no record of a reply from the applicant to the preliminary objection raised by the respondents. In addition on that date, the applicant who was in court was not represented by counsel for whom the motion was adjourned the previous day.
At that stage the applicant sought that the motion be adjourned again to enable the absent counsel be in court but the learned counsel for the 1st respondent drew the attention of the court to the written address annexed to the sworn affidavit of the motion in which counsel for the applicant had made submission in support of the motion. We were urged to deem the said written address as the arguments in support of the motion and proceed with the hearing thereof. After a reading of the written address and explaining the unusual procedure to the applicant, the court deemed the motion as having been duly argued by counsel on the written address attached to the sworn affidavit and filed along with the motion. We did that in order to save precious time and further costs in the prosecution of the motion.
Consequently, the learned counsel for the 1st respondent adopted and relied on the written submission attached to the counter affidavit and filed on the 19th of October, 2007. He urged us to uphold the preliminary objection and strike out the motion for being incompetent. In the alternative, we should dismiss it for lacking in merits.
The 2nd – 6th respondents’ counter affidavit and notice of preliminary objection were filed on 22nd October, 2007 along a written address. Learned counsel adopted and relied on the written address in urging us to strike out or dismiss the motion for reason contained therein.
In keeping with established practice, since the preliminary objection challenges the competence of the motion, it needs to be determined first. The grounds of the objection by the 1st respondent are as follows:-
“1. This Honourable Court can only entertain an appeal from an Election Petition Tribunal following a decision on the merit which is not the case in the appeal now sought to be filed by the applicant.
2. That assuming but not conceding that this Honourable Court has powers to entertain the appeal, there is no jurisdiction in the Court to grant extension of time to appeal either on an interlocutory or final decision.”
Learned counsel for the 1st respondent coined the above grounds into issues in the written address and argued them together. The issues formulated by him are:-
“(i) Whether the applicant has right of appeal against the ruling of 11th July, 2007?
(ii) Whether the Court of Appeal has power to extend time for the applicant to appeal against the ruling of 11th July, 2007?”
It was the submission of learned counsel that the applicant has no right of appeal against the ruling of the tribunal in question because it was an interlocutory one since the rights of the parties were not determined on the merits and finally. He said the ruling was made in the course of proceedings in an election petition and not a decision resulting from a determination of the petition on the merit. Consequently, he argued, the applicant does not have right of appeal in respect of that decision and cited section 246(1)(b)(ii) of the 1999 Constitution, Senator Okon v. Bob (2004) 1 NWLR (Pt. 854) 378 at 395; Sidi-Ali v. PD.P (2004) FWLR (Pt. 189) 1159at 1176; Obih v.Mbakwe (1984) 1 SCNLR 192; Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924 at 939; Okonkwo v. F.R.N. (2006) 14 NWLR (1000) 566 at 579; Usani v. Duke (2004) 7 NWLR (Pt. 871) 116 at 138; Orubu v. NEC (1988) 5 NWLR (Pt. 94) 323 at 352. Learned counsel submitted that in the absence of a right of appeal in the applicant, the motion amounts to an abuse of court process relying on Ogboru v. President, CA (No.2) (2005) 18 NWLR (Pt. 956) 80 at 94 and he urged us to dismiss it.
It was the further argument of counsel that this court is divested of powers to extend time for the applicant to appeal out of time by S. 149 of the Electoral Act, 2006 and reliance was placed on the case of Sidiau v. PD.P (supra). That the Electoral Act, 2006 has no provision for extension of time within which to appeal or to seek leave to appeal out of the 21 days of a decision and that S. 25 of the Court of Appeal Act does not avail the applicant due to the special nature of election proceedings. Once again, we were urged to dismiss the motion.
On the part of the 2nd – 6th respondents, the grounds upon which the preliminary objection was premised were thus:-
1. The ruling of the tribunal sought to be appealed against is a final decision which requires no leave to appeal having regards to S. 24(1)(a) and S. 246(1)(b)(ii) of the 1999 Constitution of the Federal Republic of Nigeria.
2. The Appeal sought to be filed is being filed less than 3 months of the decision of the tribunal and therefore requires no extension of time within which to appeal.
3. Prayer d (sic) in the application is against the provisions of Order 3 rule 3(5) of the Court of Appeal Rules, 2002.
4. The motion is incomplete, same not having been brought at the tribunal and no verifiable reason given for that.”
In his unpaged written address, learned counsel for the 2nd – 6th respondents raised the following issues for determination:- “(a) Whether or not the application for leave to appeal, extension of time within which to seek leave to appeal and extension of time to appeal are competent having regards to the provisions of the Constitution, the Electoral Act, Court of Appeal Act/Rules and the case law.
(b) Whether this court can deem the proposed notice of appeal attached to the applicant’s motion as having been duly filed and served.”
For the purposes of the preliminary objection, only submissions on issue (a) are relevant wherein learned counsel submitted that the ruling in question was a final decision of the tribunal and therefore there is a light of appeal as of right under S. 241(1)(a) of the 1999 Constitution. Further, that the Electoral Act does not provide for a situation where a petition was dismissed or struck out on the time limit for appeal and so the Court of Appeal Act and Court of Appeal Rules apply by virtue of section 151 and paragraph 51 of the 1st Schedule to the Electoral Act, 2006. It was the contention of learned counsel that S. 149 of the Electoral Act only applies to candidates in office whose election was nullified and so does not make provision for people like the applicant whose petition was dismissed. He said in such a situation, the provisions of S. 25 of the Court of Appeal Act which provide for 3 months within which to appeal. The cases of Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1; Uba v. Enemuo (2006) All FWLR 311; the unreported decision in suit No. CA/PH/EPT/26/07; Amgbare v. Chief T. Sylva dated 13th July, 2007; Awuse v. Odili (2003) 18 NMLR (Pt.851) 116; Awuse v. Odili (2005) 16 NWLR (pt. 952) 515 were cited and relied on by learned counsel in the address. According to him, there is no legal basis for the applicant to ask for leave or enlargement of time to appeal since the appeal is of right and the time of three months within which to appeal against the ruling had not expired on the date the motion was filed. He conceded however that in appropriate cases, this court has the power to extend time within which an appeal can be filed but argued that this motion is misconceived and urged us to strike it out.
It may be recalled that I had earlier on in this ruling indicated that there is no reply or response for or by the applicant to the submissions on the objection by the respondents’ counsel. Accordingly, there is nothing to be considered for the applicant in the determination of the objection. Though the applicant may be deemed to have no answer to the objection, that ipso facto does not guarantee automatic success thereof. The court has the duty to consider whether on the state of the laws and established judicial authorities, the objection is meritorious and therefore sustainable.
Before delving into a consideration of the merits of the objection, I would like to observe that it appears from the processes filed by all learned counsel in this motion that they are yet to acquaint themselves, or even become aware of the fact that the Court of Appeal Rules, 2002 have since the 1st of September, 2007 ceased to exist as far as procedure and practice in this court are concerned. The said Rules were repealed and replaced by the Court of Appeal Rules, 2007, which should thenceforth guide all counsel who practice in the court. All the processes; the motion papers; the counter affidavits and the notices of preliminary objection were filed under and/or pursuant to the non-existent Court of Appeal Rules, 2002. Though the Court of Appeal Rules, 2007 may contain substantially similar provisions as the repealed Court of Appeal Rules, 2002, filing of processes in the court under or pursuant to the latter is undesirable and does not show sufficient diligence. This is just a wake-up call on all learned Counsel who practice in this court.
Now, as was noted above, the grounds of the objection by the 1st respondent are that the applicant has no right of appeal in respect of the ruling in question under S. 246(1)(b)(ii) of the 1999 Constitution. The said provisions are thus:-
246(1) An appeal to the Court of Appeal shall lie as of right from Decision of the National Assembly Election Tribunal and Governorship and Legislative House Election Tribunal on any question as to whether
(i)
(ii) Any person has been validly elected to the office of Governor or Deputy Governor, ”
These provisions are quite clear and straightforward and so deserve and require interpretation that ascribes ordinary and grammatical meaning to them. The principle of law on this position is trite now that it can be said to be common knowledge. However as ossification thereof, see African Newspapers Ltd. v. F.R.N. (1985) 2 NWLR (Pt.6) 137; Salami v. Chairman, L.E.D.B. (1989) 5 NWLR (Pt.123) 539; Odua Investment v. Talabi (1997) 10 NWLR (Pt. 523) 1. Put simply, these provisions provide for an appeal as of right from a decision of the named Tribunal on any question as to whether any person has been validly elected to the office of Governor or Deputy-Governor. Accordingly, the right thereunder accrues and becomes exercisable once there is a decision on whether a person has been validly elected into the offices set out therein.
It also means, in my view that the right which enures and is exercisable when there is such a decision from the tribunal on the valid election of the person named therein which implies a conclusive decision on such question as to the validity of the election of such persons. Any decision in the course of the determination of whether such persons has been validly elected to the relevant office does not come within the purview of the provisions and so does not confer any right of appeal. See Senator Okon v. Bob (supra) and the unreported case No CA/PH/EPT/26/07 – P E. Amgbare v. Chief Silva dated 13th July 2007 (supra) now reported in (2007) 18 NWLR (Pt. 1065)1; Usani v. Duke (2004) 7 NWLR (Pt. 871) 116; Ibori v. Ogboru (2004) 15 NWLR (Pt.895) 154.
In the present motion, the ruling delivered by the lower tribunal on 11th July 2007, which was attached to the applicant’s sworn affidavit and which is the subject of the motion is one dismissing the applicant’s motion to relist his petition before that tribunal which was withdrawn and consequently dismissed. Without hesitation, the decision is clearly not one on the question whether any person has been validly elected to the offices mentioned in S. 246(1)(b)(ii) above. As a result, no right of appeal was conferred by the said provision in respect of that decision and so none can be claimed therefrom.
Let it be pointed out here that the applicant did not pretend or attempt to claim entitlement to appeal against the said decision as of right under aforementioned provisions of section 246(1)(b)(ii) of the 1999 Constitution.
The prayers contained on the face of the applicant’s motion paper have been set out at the beginning of this ruling. The applicant by the said prayers recognised and accepted that the appeal is not as of right that is why he prayed for enlargement of time to seek leave, leave and enlargement of time to appeal against the said decision. The motion was not brought under 5.246. To that extent the provisions of S. 246(1)(b)(ii) are not germane in the present motion but I considered them in order to restate the view of this court on their import and intent for record purposes. An opportunity to do so may sparingly come my way because of the seasonal nature of election matters and appeals.
My decision on S.246(1)(b)(ii) above has adequately taken care of the submissions of the learned counsel on whether the ruling was an interlocutory or final decision of the tribunal for the purposes of a right of appeal under the said section. However to make the record complete on the issue, I would like to say that the position of the law on when a decision can properly and appropriately be said to be or described as interlocutory or final has long been settled by a legion of judicial authorities including the ones cited by learned counsel. In the premises of established principles of law on the issue.
I would pose a simple question in respect of the ruling of the Tribunal in question that may assist in the determination of whether the ruling was an interlocutory or final decision on the issues involved in the application before the tribunal. It is thus:-
Whether the applicant was entitled to re apply to the Tribunal for same or similar reliefs after the dismissal of the motion to relist under the Practice Directions, 2007 which regulate the practice and procedure in the Tribunal.
Without arid legalism and crass technicality which have no place in the current practice and attitude of the courts, my answer to the question is that the applicant was not entitled to go back to the tribunal in respect of the same or similar reliefs that were dismissed in the ruling in question under the Practice Directions. His entitlement or right to the reliefs was finally determined in the ruling dismissing the motion. To that extent, the ruling was for all practical purposes a final decision of the Tribunal in respect of reliefs sought from it by the applicant. See U.B.N. v. Boney Marcus Industries (2005) 13 NWLR (Pt.943) 654; Iwueke v. I.B.C. (2005) 17 NWLR (Pt.955) 447; Nuhu v. Ogele (2003) 18 NWLR (Pt.852) 251.
In this regard, I agree entirely with the learned counsel for the 2nd – 6th respondents when he submitted that the ruling was a final decision.
Before a consideration of the other points of objection raised by the learned counsel for the 1st respondent on the application of the Court of Appeal Act and the Court of Appeal Rules, there seems to me to be a vital precedent question that needs to be answered. With my decision earlier on that, the provisions of S. 246(1)(b)(ii) did not confer a right of appeal on the applicant and that the present motion was not made pursuant to that section, where then did the applicant derive the right to appeal against the decision of the tribunal in question to this court? Before the applicant can properly claim a right of appeal in respect of which he can approach this court under the Court of Appeal Act and the Court of Appeal Rules, he has to establish the existence of the right either from the 1999 Constitution of Nigeria, or the Electoral Act, 2006 which regulate and govern all matters pertaining to elections, election petitions and appeals in the country. The only section that confers a right of appeal from decisions of the Election Tribunals to this court is S. 246 of the 1999 Constitution.
I have found that the relevant portions or provisions of that section do not confer the applicant a right of appeal in respect of the decision of the lower tribunal in question to this court. I cannot find any other provision of the Constitution giving the applicant the right to appeal against such a decision of the tribunal to this court.
The Electoral Act 2006 confers no such right on the applicant.
In the written address by the applicant’s counsel, the source of the right of the applicant to appeal against that decision of the Tribunal to this court was not alluded to. In the absence of the right to appeal, statutory or otherwise, the applicant cannot properly approach this court and even as he did by this motion, the court would lack essential vires or competence to determine same. Since neither the parties nor the court can confer or vest jurisdiction, the motion of the applicant in the circumstances adumbrated above, is misconceived and incompetent. See African Newspapers v. F.R.N. (supra); Barsoum v. Clenssy (1999) 12 NWLR (Pt.632) 516 at 530; Lawani v. Oladokun (2003) 2 NWLR (Pt. 804) 271 at 288-9; Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122 at 138.
But assuming that the applicant could claim any right of appeal from the Constitution and that the provisions of Court of Appeal Act and Court of Appeal Rules apply to that appeal, it appears that the applicant’s motion would still be misconceived as pointed out by the learned counsel for the 2nd – 6th respondents. This is because the ruling having been adjudged by me to be a final one, S. 24 (2) (a) of the Court of Appeal Act provides a three (3) months period of time within which to appeal against it. Consequently, the applicant did not require leave of court to appeal and extension of time to appeal by the date the motion was filed on the 5th of October, 2007.
It may be recalled that the ruling in question was delivered on the 11th of July 2007. The ruling being a final decision and with the time to appeal still running, the prayers contained on the applicant’s motion are clearly grossly misconceived. For that reason I agree with the learned counsel that the motion is incompetent and ought to be struck out. With the above finding, the need and duty to consider the merits of the motion does not arise, but abates, this court being the final court in respect of such applications in relation to election appeals from the lower tribunal. See Anyaduba v. Renowned Trading (1992) 5 NWLR (Pt. 243) 535 at 561; Alao v. Akano (2005) 11 NWLR (Pt.935) 160, (2005) All FWLR (Pt.264) 799 at 807.
In the final result, I find the motion by the applicant to be incompetent and hereby strike it out. I assess costs of N 10,000.00 in favour of the respondents and against the applicant.
GALADIMA, J.C.A.: I have had the privilege of reading the Ruling of my learned brother, Garba, J.C.A., which he has just delivered. The facts of the case which involves an election matter between the parties are not disputed. The application herein, inter alia, is for extension of time within which to apply for leave to appeal against the ruling of the Bayelsa State National Assembly Governorship and Legislative Election Tribunal delivered on 11th day of July, 2007.
The grounds of objection by the 1st respondent is that the applicant has no right to appeal against the ruling of the tribunal because it was an interlocutory decision in which the rights of the parties have been finally determined in the merits. Reliance was placed on section 246(1)(b)(ii) of the 1999 Constitution which is set out in the lead ruling. Ascribing ordinary and literal meaning to these provisions would mean that there is appeal as of right from a decision of the tribunal on any question as to whether any person has been validly elected to the office of Governor or Deputy Governor. This right is exercisable once there is a decision of the tribunal on the validity of election of the aggrieved party. A decision in the course of the determination of whether such person or persons had been validly elected to the relevant office does not come within the contemplation of the said provisions. See Senator Okon v. Bob (2004) 1 NWLR (Pt. 854) 378 at 395; Sidi Ali v. P.D.P.(2004) FWLR (Pt. 189) 1159 at 1176; P.E. Amgbare v. Chief Silva – unreported case of. CA/PH/EPT/26/2007 dated 13th July, 2007 [now reported in (2007) 18 NWLR (Pt. 1065)1]; and Ibori v. Ogboru 2004) 15 NWLR (Pt. 895) 154.
The ruling of the lower tribunal delivered on 11th July, 2007 is one dismissing the applicant’s motion to relist his petition before the tribunal which was withdrawn and dismissed. The decision is not one on the question whether any person has been validly elected to the offices mentioned in section 246(1)(b)(ii) of the said 1999 Constitution.
Consequently, no right of appeal was conferred by that provision in respect of that decision. The applicant therein, no doubt, is not appealing as of right, hence he prayed in his application for enlargement of time to seek leave; leave and enlargement of time to appeal against the said decision. However, the motion was not brought pursuant to section 246 of the 1999 Constitution. To that extent I am also of the opinion that the provisions of section 246(1)(b)(ii) are not germane in the present motion. The question however is whether the applicant has established the existence of the right either from 1999 Constitution or the Electoral Act, 2006. As already noted the relevant provisions of section 246 Constitution do not confer the applicant a right of appeal in respect of the decision of the lower tribunal to this Court. I cannot find either any other provisions of the Constitution which give the applicant the right to appeal against such a decision to this court.
For this contribution and the detailed reasons and conclusion in the lead ruling, I also come to inevitable conclusion that this application of the applicant is incompetent and I also strike it out. I abide by the costs assessed at N10,000.00.
ABDULLAHI, J.C.A.: I have been privileged to preview the ruling just delivered by my learned brother, M. L. Garba, J.C.A. He has meticulously and exhaustively dealt with all the issues raised and canvassed in the application inclusive those issues not even raised by the parties for the benefit of the lawyers practicing in this court.
I have carefully perused all the processes filed by the parties to this application and I am of the opinion that the decision/ruling sought to be appealed against has finally disposed of the petition at the Election Petition Tribunal, Bayelsa State. See Uba v. Enemuo (2006) All FWLR 311; and Awuse v. Odili (2003) 18 NWLR (Pt. 851) p. 116.
I am equally of the view that this being the case, the notice of appeal must be in accordance with section 25 of the Court of Appeal Act, which requires such appeal to be filed three months from the date of the decision sought to be appealed against and that being a final decision of the tribunal, the applicant has the right to appeal against the said decision as of right without leave. It is also on record that the decision was delivered on 11th day of July, 2007 and at the time the applicant has filed his application, precisely on 4th October, 2007, the time allowed for him to appeal has not elapsed. I am therefore of the view that there is no legal basis for extension of time to appeal. The application is misconceived.
For these reasons and the fuller ones contained in the lead ruling, I too join my learned brother in striking out the said application for lack of merit. I abide by the order on costs contained therein.
Application struck out.
Appearances
Applicant not representedFor Appellant
AND
F. Zimughan, Esq.;
J. Afekoro, Esq;
P. Agedah, Esq;
O. Inemo, Esq;
K. Wodu, Esq;
F. Stephen-Gow, Esq;
D. K. Derri, Esq;
A. P. Egbegi, Esq;
P. O. Ogun, Esq;
Esueme D. Kikile, Esq.;
D. Otiotio, Esq;
S. B. Egberipou, Esq;
I. S. Ibanichuka, Esq)
B.I. Oha, EsqFor Respondent
