Chijioke Donald B. Williams V. Ernest Ifeanyi Ibejiako & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A.
The Appellant and 1st Respondent were candidates at the election conducted on the 21st of April, 2007 by the 2nd Respondent (Independent National Electoral Commission (INEC) to the House of Representatives, Federal Republic of Nigeria for the Owerri Federal Constituency, Imo State. The All Peoples Grand Alliance (APGA) and Peoples’ Democratic Party (PDP) both registered political parties sponsored the Appellant and 1st Respondent respectively for that election at the end of which the latter was declared and returned as the winner. Being dissatisfied with the return, the Appellant on the 21st of May, 2007 filed an election petition before the Imo State Governorship and Legislative Houses Election Petitions Tribunal (hereinafter to be named lower Tribunal) questioning same on the grounds that –
(i) “The 1st Respondent was not duly elected by majority of lawful votes cast at the election;
(ii) The election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act.”
The Appellant’s petition was first served on the 2nd – 7th Respondents on the 25th of June, 2007 and then the 1st Respondent
On the 3rd of July, 2007. The 1st Respondent filed a Reply to the petition on the 20th of July, 2007 while the 2nd -7th Respondents’ filed a motion on notice on the 26th of July, 2007 seeking order-enlarging time within which to file their Reply to the petition. Annexed to the motion was the Reply sought to be deemed properly filed.
Then on the 11th of August, 2007 the lower Tribunal suo motu and without notice in the parties, acting pursuant to paragraph 3(4) of the Practice Directions No. 1 of 2007, dismissed the Appellant’s petition on the ground that it was abandoned.
The Appellant felt aggrieved by the ruling of the lower Tribunal and so he filed a Notice of Appeal against it on the 14th of November, 2007 on two grounds as follows:-
(1) “The Trial Tribunal erred in law when it dismissed the Appellant’s petition in the absence of the Petitioner and without giving the Petitioner an opportunity to know that his matter was coming up on the said day.
(2) The learned Tribunal erred in law when it relied on paragraph 3(4) of the Practice Directions 2007 to dismiss the appellant’s petition.
In line with the rules of practice in this court, briefs of arguments were filed by learned counsel for the parties in the appeal. The Appellant’s brief was filed on the 3rd of January, 2008, the 1st Respondent’s brief on the 17th of January, 2008 and the 2nd – 7th Respondents’ on the 14th of January, 2008. The briefs were adopted at the hearing of the appeal on 11th March, 2008 by the respective learned counsel as submissions in support of their positions in the appeal.
Learned counsel has submitted two issues, which he said arise for decision in the appeal. They are:-
(a) “Whether the Appellant was given fair hearing
(b) Whether the learned trial Tribunal was right in relying on paragraph 3(4) of the Practice Direction No. 1 of 2007 in dismissing the Appellant’s petition?
For the 1st Respondent, the issue raised for determination is – whether or not the Practice Directions ought to be adhered to by parties to an election Petition.
The issue formulated in the 2nd – 7th Respondents’ brief is in the same terms with the Appellant’s issue (b) above.
In the respective briefs of the Respondents’, a preliminary objection was raised on the competence of the appeal. The objection is to the effect that the Notice of Appeal was filed outside the period of 21 days prescribed by the provisions of Section 149 of the Electoral Act, 2006 because the decision of the lower Tribunal appealed against was delivered on 11th August, 2007.No separate notice of the preliminary objection was filed by either of the Respondents as is the usual practice. However, the law permits the raising of a preliminary objection in a Respondent’s brief of argument on the ground that the Appellant would have adequate notice and opportunity to respond to it, if necessary, by way of or in an Appellant’s Reply brief. See NBN V. T.A.S.A. (1996) 8 NWLR (468) 511, TIZA V. BEGHA (2005) 5 SCNJ (PT.II) 1 @ 7, NWANOSIKE V. JOHN HOLT PLC (2006) ALL FWLR (301) 1809. But for a preliminary objection raised in the Respondents’ brief to be of any use and to be considered by the court, it has to be moved by the Respondents at the hearing of the appeal otherwise it is deemed abandoned. NSIRIM V. NSIRIM (1990) 5 SC (PT II) 94, (90) 3 NWLR (138) 295, SALAMI V. MOH’D (2000) 6 SC (PT II) 37, TIZA V. BEGHA (supra) OFORKIRE V. MADUIKE (2003) 5 NWLR (812) 166, ONOCHIE V. ODOGWU (2006) 2 SC (PT I) 153.
Another established principle of law on preliminary objection is that once it is properly raised and moved by the Respondent it should be determined first by the court before proceeding to hear or consider the merits of an appeal. See KOTOYE V. SARAKI (1991) 8 NWLR (211) 638, GOJI V. EWETE (2001) 15 NWLR (736) 273 @ 280, ODU V. AGBOR-HOMESON (2003) 1 NWLR (802) 624, U.B.A. V. A.C.B. (2005) 12 NWLR (939) 232 @ 259, NGIGE v. OBI (2006) 14 NWLR (999) 1 @ 222. This position of the law is in accord with prudence since the object or primary purpose of a preliminary objection is to determine or terminate the proceedings in limine at the point it was raised because it challenges the competence of the court to entertain the appeal on the ground it was premised. Where it succeeds and is upheld by the court that would bring the proceedings in which it was raised to an end as there could no longer be any other competent live issues in the case. OYEMEH V. EGBUCHLAM (1996) 5 NWLR (448) 255, NEPA.V. ANGO (2001) 15 NWLR (751) 627, JAIYEDIA V. ABIOYE (2003) 4 NWLR (810) 397, ANPP. V. RETURNING OFFICER ABSD (2005) 6 NWLR (920) 140, ADELAKAN V. ECULINE (2006) ALL FWLR (321) 1213 @ 1231.
At the hearing of the appeal learned counsel for the 1st Respondent did not move or even make reference to the preliminary objection he raised in his brief. He merely adopted his brief of argument and urged us to dismiss the appeal. On the authorities set out earlier on the need for such preliminary objection to be moved at the hearing and the consequence of failure or omission to do so, the learned counsel is deemed to have abandoned the preliminary objection, prior or separate notice of which he did not give. All submissions contained in the 1st Respondent’s brief on the preliminary objection are like it deemed abandoned thereby and would be discountenanced. See also MAGIT V. UNIVERSITY OF AGRICULTURE MAKURDI (2005) 19 NWLR (959) 211.
On his part, learned counsel for the 2nd -7th Respondents, after conceding that he did not file a separate notice of tlre preliminary objection before the date of hearing, mentioned and relied on it, citing the case of MINISTRY OF LANDS & HOUSING V. ALH. SHITU (2006) ALL FWLR (401) 847 @ 862. He can therefore be said to have moved his own part of the preliminary objection as required by the relevant judicial authorities on the point. The submissions on the preliminary objection are contained in paragraph 4.15 at page 5 of the 2nd – 7th Respondents’ brief of argument. The seven (7) lines submissions a re to the effect that the Appellant’s Notice of Appeal was filed out of time and contrary to section 149 of the Electoral Act. Reliance was placed on the case of SIDI ALI V. PDP (2004) FWLR (189) 1176 in urging us to dismiss the appeal for being incompetent.
Well, the preliminary objection by learned counsel appears to me to be based on what I would simply call a manifest misunderstanding and ‘ misconception of the provisions and intendment of Section 149 of the Electoral Act, 2006.
The section makes provisions as follows:-
(1) “If the Election Petition Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, then if notice of appeal against that decision is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the determination of the appeal.
(2) lf the Election Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought ”
These provisions are in simple and unambiguous language that leaves no difficulty in understanding and application.The provisions apply where there was a determination or decision by the lower Tribunal that a candidate returned as elected was not validly elected and a Notice of appeal was filed by such a candidate within 21 days, he shall remain in office pending the determination of his appeal. That such a candidate shall remain in office pending the expiration of 21 days within which an appeal against the decision of the lower Tribunal may be filed. So the provisions only apply where there was a decision by the lower Tribunal that a candidate returned as elected was not validly elected. That is when the period of 21 days time limit provided for the exercise of a right of appeal by such a candidate against that decision applies.To enjoy the benefit provided in Section 149(1)in particular, the candidate had to exercise the right of appeal against the decision within the 21 days limit prescribed therein.
In the present appeal, it is not the candidate returned as elected who happened to be the 1st Respondent, that is challenging a decision that he was not validly elected since there was no such decision by the lower Tribunal. Consequently the provisions of Section 149 and the period of 21 days limit for the filing of an appeal do not apply and cannot appropriately be applied in the appeal for the purposes of determining the period prescribed for the filing thereof. Since the Practice directions No. 2 of 2007 are applicable only to appeal coming to this court under Section 14 of the Electoral Act, it means that they do not apply to the Appellant’s appeal. That is not however the end of the matter because though learned counsel had used and relied on the wrong law for the preliminary objection,that alone would not defeat it if it can be premised under an existing or subsisting law which the court has the duty to take judicial notice of under Section 74(1) of the Evidence Act. See CCB (NIG.) PLC V. MASTERPIECE CHEMICALS (2000) 12 NWLR (682) 574, GAMBO v. TUKURJI (1997) 10 NWLR (526) 591, BUHARI V. OBASANJO (2003) 17 NWLR (850) 423.
In addition, since the preliminary objection challenges the competence of the Notice of Appeal,it raises and touches on the issue of jurisdiction of the court to entertain the appeal. That being the case, the court, suo motu, or along with any of the parties, is entitled to raise and consider it at any stage of the proceedings in the appeal. The only legal requirement is that parties are to be given notice thereof and afforded the opportunity to be heard before a decision is taken on the issue by the court. ABUDU V. ABDULRAZAQ (2001) 7 NWLR (713) 669, OGUNMOLA V. KIDA (2001) 12 NWLR (726) 93, SENATE PRESIDENT V. NZERIBE (2004) 9 NWLR (878) 251, OKONKWO V. INEC (2004) 1 NWLR (854) 242.
In the present appeal, the parties have had adequate notice and ample opportunity to address on it. As was indicated earlier, the two learned counsel for the Respondents had raised it in their respective briefs of argument, which were duly served on the Appellant. Though the objection was addressed for the Respondents, the learned counsel for the Appellant did not file an Appellant’s Reply to address or re-act to it. The consequence of that failure or option not to respond to the preliminary objection by the Appellant is that he is in law, deemed to have conceded to the submissions by the learned counsel for the Respondents on the objection. In other words, the law deems the Appellant as conceding that the Notice of Appeal filed on 14th November, 2007 was filed out of the time prescribed by law and so incompetent. OGBECHI V. ONONGHE (1988) 1 NWLR (70) 370 @ 402, OKOYE V. N.C. & FCO (1991) 6 NWLR (199) 501, KHALIL V. YAR’ADUA (2003) 6 NWLR (847) 446, NNAMDI V. NNAJI (1999) 7 NWLR (610) 313.
Let me quickly point out here that the absence of a reply brief or that the Appellant is deemed to have conceded to the preliminary objection does not mean that the objection would automatically succeed and be upheld by the court. The court still has the duty to consider the merits of the objection to find out whether or not it is sustainable since such objections cannot be upheld as a matter of course or for mere absence of a response by the Appellant. It is premised on law and the court needs to be satisfied that it is supported by law before it could be upheld. Because the Practice Directions do not apply to the Appellant’s appeal, pursuant to Section 151 of the Electoral Act as well as Paragraph 51 of the 1st Schedule thereto, resort had to be made to the Court of Appeal Act and Court of Appeal Rules in respect of the Appellant’s appeal.
Under Section 24 (2) (a) of the Court of Appeal Act,2004, the period for giving or filing of a notice of appeal, where the decision is a final one such as in the present appeal, is three months from the date of the decision to be appealed against.There can be no serious dispute on the fact that the decision of the lower Tribunal dismissing the Appellants petition on the ground of being abandoned had conclusively and with finality, determined the right of the appellant in the said petition and so it was a final decision. Being dissatisfied with it, the Appellant had to file a notice of appeal against same within three months from the date the decision was delivered as provided in Section 24(2)(a) of the Court of Appeal Act.
It is common ground that the decision of the lower Tribunal was delivered on 11th August, 2007 as explicitly disclosed by the record of appeal before us. The appellant therefore had three (3) months from that day/date, within which to file his Notice of Appeal against the decision in compliance with the provisions of the Court of Appeal Act. By simple arithmetic, he had up to the 10th of November, 2007 in order to meet the time limit prescribed by law within which to file a competent Notice of Appeal. Any Notice of Appeal filed outside the three (3) months period prescribed by law in the absence of leave of the court first sought and obtained for so doing, would undoubtedly be in breach of the period of limitation provided for the filing of a valid Notice of Appeal. Such a Notice of Appeal would in law be incompetent for non-compliance with statutory limitation. It is in common parlance said to be statute barred and an invalid Notice of appeal, which cannot effectively initiate proceedings in this court or invoke its jurisdiction over the decision it purports to complain about.
Being the source from which the judicial powers and authority of this court over appeals accrue and are derived, the Notice of Appeal, is such a fundamental and crucial process that must be filed, in compliance with the statutory limitation otherwise it would be incurably defective and terminally fatal to the appeal. As the initiating process in this court, the filing of a Notice of Appeal outside the time limit provided by law makes it incurably defective and is terminally fatal thereto. See N.B.C.I. V. ABIOKWE (1997) 11 NWLR (527) 25, DAMBAM V. LELE (2000) 11 NWLR (678) 413, KOREDE V. ADEDOKUN (2001) 15 NWLR (736) 483, SEVEN-UP BOTTLING CO. V. YAHYA (2001) 4 NWLR (702) 47 , CBN V. OKOTIE (2004) 10 NWLR (882) 488, OKONKWO V. INEC (2004) 1 NWLR (854) 242, A.G. RIVERS STATE V. IKENTA BEST (NIG.) LTD (2005) 3 NWLR (911) 1.
In the present appeal, the Notice of Appeal, which is at pages 75 – 78 of the record of appeal, was dated the 13th November, 2007 and filed on 14th of November, 2007. I have stated before now that since the decision of the lower Tribunal was delivered on the 11th of August, 2007, the three (3) months period of time prescribed for the filing of an appeal against same under Section 24 (2) (a) of the Court of Appeal Act ended or expired on 10th November, 2007. For compliance with the said limit period, the Appellant had up to the 10th of November, 2007 within which to file a valid and competent Notice of Appeal. From the record as seen above, the Appellant’s Notice of Appeal was filed on the 14th of November 2007; four (4) days after the expiration of the three months provided by law and so outside the time for so doing.
There is no record that before filing the said Notice of Appeal the Appellant had sought and obtained the prior leave of either the lower Tribunal or this court extending the time within which to file it. As pointed out earlier, the legal effect and judicial consequence is that the Notice of Appeal was filed out of the time prescribed by law, thereby rendering it incurably defective, invalid and therefore incompetent, it robs the court of the necessary vires to entertain and determine the complaint contained therein.
In the circumstances, the only power the court possesses is the inherent one to uphold the preliminary objection by the learned counsel for the 2nd – 7th Respondents that the Appellant’s Notice of Appeal was filed out of the time provided by the Court of Appeal Act and not Section 149 of the Electoral Act and formally declare it incompetent.
In the result, I find merit in the, preliminary objection on the ground that the Appellant’s Notice of Appeal was filed out of time. The Notice of Appeal was therefore invalid, incompetent and is for that reason hereby struck out.
The above finding has automatically brought the proceedings in the appeal to an end. The 1st Respondent is entitled to costs, which I assess at N30,000.00 in his favour and against the Appellant.
Other Citations: (2008)LCN/2742(CA)
