Chief Ambrose Owuru V. Chief Sergeant Awuse & Ors. (2004)

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RABIU DANLAMI MUHAMMAD, J.C.A.

When this appeal was called for hearing on 17th day of February, 2004, the Court discovered that the Ruling of the Tribunal was delivered on the 14th day of June, 2003 and that the Notice of Appeal was filed on the 1st day of September, 2003 i.e. 77 days after the Ruling was delivered. The Court therefore suo motu raised the issue of the competency of the appeal and asked counsel to address us on the competency or otherwise of the appeal.

Chief Awuru who appeared for himself submitted that the appeal is competent and valid and that the Notice of Appeal was filed within time and in due compliance with all the relevant provisions of the law. He submitted that the relevant provisions are the Electoral Act, 2002; S.25 of the Court o fAppeal Act and the Constitution. He then submitted that there is no Section in the Electoral Act which specifically provide the time frame within which an electoral appeal must be filed. He submitted that the only reference to time of appeal in the Electoral Act is in S.138 which only referred vaguely and generally to the time of appeal. He then referred to S.138(2) and S.139 which made vague reference to the time of appeal. He submitted that the non-reference of the time of appeal is deliberate.

He referred to S.25 of the Court of Appeal Act and submitted that they have 90 days within which to file their Notice of Appeal since the decision of the Tribunal is a final decision. He referred to P.D.P. Vs INEC (2000) 3 SCW (Pt. 8) 424 at 441 and EBOKAM Vs EKWENIBE (1999) 10 NWLR (Pt 622)242. He submitted that the appeal is competent because it was filed within time.

Mr. Mike Okoye learned counsel for the 1st and 2nd Respondents submitted that the Notice of Appeal is filed out of time and there being no application for extension of time, it is liable to be struck out for want of jurisdiction. He referred to S.248 of the 1999 Constitution and submitted that the President of the Court of Appeal is given powers to make rules regulating the Practice and Procedure of the Court of Appeal and it includes Practice Direction. He stated that the Ruling of the Tribunal was delivered on 14/6/03 and the Notice of Appeal was filed on 1/9/03 beyond the days prescribed in the Practice Direction relating to the Election Petitions. He then submitted that the Notice of Appeal having been filed outside that period is incompetent.

He referred to S.246(1)(b) of the 1999 Constitution and submitted that it has been construed by the Supreme Court in AWUSE Vs ODILI (2003) 18 NWLR (Pt 551) 116 that a party has right of appeal whether the decision is final or interlocutory. He then referred to S. 285 (1) & (3) and S.284 of the Constitution and submitted that the Practice Direction has constitutional effect. He referred to SANUSI Vs AYOOLA (1992) 1 NWLR (Pt 263) 275 and urged the Court to strike out the appeal for want of jurisdiction.

Mr. Dappa-Addo learned counsel for the 3rd respondent submitted that a right of appeal is not a fundamental human right but a constitutional or statutory right. He submitted that that being the case, a party exercising his right of appeal must conform with the statute in support of his submission, he cited the cases of EYESAN Vs SANUSI (1954) 1 SCNLR 353 and THE QUEEN Vs RESIDENT IJEBU PROVINCE (1959) WNLR 87.

He further submitted that if time for filing appeal is lapsed that court has no jurisdiction to hear the appeal as was held in ADELEKE Vs COLE (1961) 1 All NLR 35. He also submitted that the right of appeal in Election Petition is provided by the Electoral Act 2002 and that S.138 of the Electoral Act and the Practice Direction give time within which an appeal should be filed. He referred to Paragraph 51 of the 1st Schedule to the Act and S. 5(2) o f the Court o f Appeal Act which gives the President of the Court of Appeal power to make Practice Direction.

He then submitted that S.138 of the Act and paragraph I of the Practice Direction have limited the time within which an appeal could be filed. He submitted that the appeal was filed outside the 21 days prescribed by the practice Direction and the law. He therefore urged the court to strike out the appeal.

Let me first deal with the peculiar nature of election petition.

Election Petitions are “sui generis” and as such they are considered to be neither civil nor criminal proceedings. See GBE Vs ESEITE (1988) 4 NWLR (Pt S9) 435; AYUA Vs ADASU (1992) 3 NWLR (Pt 2s1) 598 and OWURU Vs INEC (1999) 10 NIVLR (622) 201. An election petition should not be treated as an ordinary civil suit. An election petition creates a special jurisdiction and the ordinary rules of procedure in civil cases do not serve its purpose. Because of their peculiar nature, the court should endeavor to hear them expeditiously, by reasons of their importance to good governance and the democratic set up. This places the election petitions above the normal transactions between individuals which give rise to ordinary claims in Court. See: ORUBU Vs NEC (1988) 5 NWLR (Pt.94) 323 where Uwais JSC (as he then was) stated at page 347 that:
“An election petition is not the same as ordinary civil proceedings because of the peculiar nature of election which by reason of their importance to the well being of democratic Society, are regarded with an aura that places them over and above the normal day to day transaction between individuals which give rise to ordinary or general claims in court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute.”

It could be seen from the authorities quoted above, election petitions are peculiar in nature. They are proceedings “sui Generis” which are not considered to be identical with other proceedings. They are considered important that the Court should not allow technicalities and rules of procedure to cause delay in their disposition.

The 1999 Constitution and the Court of Appeal Act has conferred upon the President of the Court of Appeal the powers to make rules for regulating the practice and procedure of the Court of Appeal. S.8 of the Court of Appeal Act, 1976 provides:
8(1) “The practice and procedure of the court of Appeal shall be in-accordance with this Act and, subject to this Act, in accordance with rules of Court.
(2) The President may make rules regulating the practice and procedure of the Court of Appeal.”

Section 248 of the Constitution of the Federal Republic of Nigeria, 1999 provides:
“Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.”

Exercising the powers conferred upon him by the constitution of 1999; the Court
of Appeal Act and the Electoral Act the President of the Court of Appeal gave Practice Directions in respect of conducting election petitions. Practice Direction No. 2 of 2003 is in respect of appeals coming to the Court of Appeal. It provides:
“For the purpose of appeals coming to the Court of Appeal under Section 137 of the Electoral Act 2002 No.4, this Practice Direction shall be strictly observe by all parties:
(1) The appellant shall file in the Registry of the Tribunal his Notice and Grounds of Appeal within 21 days from the date of the decision appealed against.”
The above provision is very clear. The appellant must file the Notice and Grounds of appeal within 21 days from the date of the decision appealed against. This is a mandatory provision which must be strictly observed.

Also paragraph 51 of the first schedule to the Electoral Act provides:
“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 of procedure relating to appeal 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.”

The import of the above paragraph 51, in my opinion is that where the Practice Direction regarding election appeals is silent on any particular practice and procedure of the Court of Appeal, recourse will be had to the Court of Appeal Rules, relating to appeals in the Court of Appeal. Since the Practice Direction No.2 of 2003 is not silent on when to file the Notice and Grounds of Appeal, recourse will not be had to the Court of Appeal Rules.

It is therefore my considered opinion that the Practice Direction No. 2 regulates the time within which to file an election petition appeal.

Learned counsel for the appellant clearly misconceived the whole issue by disregarding the Practice Direction.

Where the Practice Direction has covered a matter recourse would not be had to the Court of Appeal Rules. The Practice Direction which has got constitutional backing is a rule of Court which must be obeyed. See the Supreme Court decision in WILLIAMS Vs HOPE RISING FUNDS SOCIETY (1982) 2 SC 145 where it was held that the rules of Court are made to be obeyed and no favour should be shown for not obeying same.

In APARI Vs HOSE (1999) 5 NWLR (Pt 604) 541 Practice Direction No. 1 of 1983 stipulated that the appellant shall file with his notice and grounds of appeal in the court and serve on the respondent a written brief. The appellant failed to file the brief along with the Notice and Ground of Appeal. The appeal was struck out holding that the failure to comply with the Practice direction is fatal and cannot be cured by an application for extension of time.

In OJUGBELE Vs LAMIDI (1999) 10 NWLR (Pt 621) 167 it was held that rules of court which include Practice Direction are made to be obeyed and no favour should be shown for not obeying them. In that case the Practice Direction issued by the President of the Court of Appeal which constituted the rules of the court in election appeals must be complied with and cannot be circumvented. Muri Okunola J.C.A. (of blessed memory) State:
“In conclusion, the Practice Direction of this Court as a rule of
court must be complied with and not circumvented and no favour should be shown for not obeying same.

Thus the appellant’s brief filed herein, on the showing of learned counsel for the appellant without compliance with the Practice Direction vitiates the appeal.”

As I have earlier stated in this Ruling, election petitions are “sui generis” and they are neither criminal nor civil proceedings. They are not governed by the ordinary rules of proceedings. Because of their peculiarity, they are governed by special rules of proceedings made specifically for that purpose. To state that the time within which to file an election appeal is governed by S.25 of the Court of Appeal, Act is a manifest misconception. I therefore hold that the filing of an election appeal is governed by paragraph I of the Practice Direction No.1 of 2003 and further hold that it is a mandatory provision which must be complied with strictly and failure to comply with the Practice Direction vitiates the appeal.

Since the Ruling of the Tribunal was delivered on 14th June, 2003 and the Notice of Appeal was not filed until on 1st September,2003 that is 77 days after the Ruling was delivered. This is clearly outside the 2l days prescribed by the Practice Direction, I hold that the Notice and Grounds of Appeal were filed out of time. The court has no jurisdiction to entertain the appeal. The appeal is hereby struck out. I make no order as to costs.

Other Citations: (2004)LCN/1534(CA)