Mohammed Hassan Hashim Rimi V. Independent National Electoral Commission (Inec) & Anor (2004)

LawGlobal-Hub Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.C.A. 

This is a motion on notice filed by the 2nd respondent/applicant for the following reliefs:
“1. An order of enlargement of time within which the 2nd respondent/applicant may file its brief of argument in this appeal.

2. An order deeming the brief of argument already filed as being properly filed. And for such further order(s) as this Honourable Court may deem it fit to make in the circumstance of this case.”

The grounds upon which the application was based are as follows:
“1. The 2nd respondent/applicant could not file its brief of argument within time limited by the Practice Direction No.1 of 2003.

2. The delay in filing the brief was not meant to show disrespect to the court.

3. The 2nd respondent/applicant has prepared and file his brief of argument.”

While moving the motion, learned counsel for the 2nd respondent/applicant Mr. Owonikoko stated that the application was brought pursuant to Order 3 rule 4 of this court’s rules and under its inherent jurisdiction. It is supported by a six-paragraph affidavit sworn to by Toyin Aladegbami. The proposed brief of argument for the 2nd respondent was annexed to the affidavit as exhibit ‘A’.

Learned counsel sought the leave of court to amend relief No.2 of the application to include an order for deeming the service of this brief of argument effected on the appellant and the 1st respondent as duly served. Leave was granted therefor and relief No.2 of the application was amended to include a deeming order for the service of 2nd respondent’s brief on the appellant and the 1st respondent.

Learned counsel for the applicant submitted that the record of appeal was served on him at the Court of Appeal Registry, Abuja on 1/3/04 when he was there to file some processes. He made frantic effort to contact the 2nd respondent with a view to getting further instruction from him with regard to the prosecution of the appeal. The 2nd respondent/applicant could not be reached immediately though a message was left for him in that regard. It was only on Friday, 5th March that the learned counsel was able to obtain the instruction of the applicant. The 2nd respondent’s brief was prepared and annexed as exhibit ‘A’. The brief was paid for on the 8/3/04. The failure to file the brief of argument within time limited by the Practice Direction was not meant to show disrespect to this court. The applicant is desirous and willing to prosecute the appeal and that the respondents/applicants will not be prejudiced by the grant of this application.

Learned counsel for the appellant/respondent, Mr. Ameh opposed the application on points of law. He submitted that this is an election matter, and going by the Practice Directions, there is no room for extension of time to file brief of argument outside the stipulated period. He cited and relied on the case of Abubakar v. INEC & 3 Ors. (2004) 1 NWLR (Pt. 854) 207 at 242 D-F. He urged this court to refuse the application.

In his reply on points of law raised by learned counsel for the respondent, learned counsel for the applicant, submitted that the case of Abubakar v. INEC & 3 Ors. is not applicable in this case. The Electoral Act, paragraph 49 of 1st Schedule provides for extension of time to file processes other than petition and reply to petition. The Supreme Court has construed these limitation provisions to accommodate amendments and extension of time.

Learned counsel cited the case of Alh. M. D. Yusuf & Anr. v. Chief O. Obasanjo (2003) 16 NWLR (Pt. 847) 554.

This is otherwise a simple application which should have been granted on the bench but for its special importance as it relates to the issue of extension of time to file processes of court including parties’ briefs of argument outside the time stipulated by law and the Practice Direction on election matters. In the case of Abubakar & 3 Ors. v. INEC (supra) cited by learned counsel for the respondent, there was an oral application made by learned counsel for 1st, 2nd, 5th – 82nd respondents for extension of time to enable him file the respondents brief for the 1st, 2nd, 5th – 82nd respondents out of time.

Although learned counsel later withdrew his application, the Court of Appeal ruled in respect of the 3rd respondent as follows:
“The 3rd respondent’s brief so called; cannot and will not be countenanced by the court as it offends the Practice Direction being filed out of time. There is therefore no brief filed in respect of or for the 3rd respondent in this appeal.”

Per Omage, JCA at page 227 paragraphs F-G of the report. In his contributory judgment, Rowland, JCA, agreed with Omage, JCA, and stated:
“The brief under reference was filed out of time and therefore incompetent”.

Bulkachwuwa, JCA, in her contribution stated –
“This is an unfortunate situation where the brief filed by the 3rd respondent on the 3rd of September, 2003, which has been brilliantly written becomes incompetent having been filed out of time in breach of the provisions of the Practice Direction No.2, 2003 which provides that a respondent brief should be filed within 3 days of being served with the appellant’s brief … The brief though well researched and brilliantly written becomes incompetent and liable to be disregarded by this court.” (See page 237 paragraphs D-F and H of the same report).

Chukwuma-Eneh, JCA, made the following observation:
“As for the 3rd respondent he filed a brief out of time and to that extent irregular. There can be no doubt as stated by Uwais, JSC (as he then was) in Nwankwo v. Allah (1999) 5 NWLR (Pt. 601) 134: that, “as a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of procedural clogs that cause delay in the disposition of substantive disputes” hence the relevant rules are issued in mandatory forms. However, the court in dealing with paragraph 7 of this Practice Direction No.2 of 15/4/03 is evidently dealing with rule of court. And it is settled that non-compliance with the rules of court has to be regarded as mere curable irregularity. In other words, in normal circumstances i.e. in ordinary civil cases court’s discretionary power to grant extension of time to file brief of argument is unfettered although such a discretion has to be exercised judiciously and judicially if the exceptional circumstances for being out of time are established to the court’s satisfaction. But in election matters as the instant one the use of the word “shall” in paragraph 7 of the Practice Direction in regulating filing of the respondent’s brief connotes mandatory direction that has to be complied with exactly. The instant Practice Direction has gone further to provide in paragraph 9(d) that no oral argument will be heard on behalf of respondent of whom no brief has been filed.

Worse still, in the instant matter the 3rd respondent filed no motion before the court to regularize the said brief and so in the absence of setting out exceptional circumstances which have to be deposed to in the supporting affidavit to the motion for being out of time, there is little or nothing by way of materials before the court to act upon. Courts are not known to accede to such matters in vacuous. The case of the 3rd respondent was made more parlous by his learned counsel’s acknowledgement of being unaware of the applicable Practice Direction No.2 of 15/4/03 to this matter. Thus provoking the response that ignorance of the law is no excuse. Besides, it would with respect seem naive not to contemplate that by granting extension of time to file the said brief, the appellants would want time to file a reply to the 3rd respondent’s brief thereby occasioning undue delay in the hearing of the matter.”

Alagoa, JCA, contributed in the following words:
“Perhaps the most pitiable of the respondents was the 3rd respondent who had filed what was undoubtedly a thoroughly researched brief but had done so out of time.
The appellant’s brief was served on the 3rd respondent on the 12th August, 2003. The 3rd respondent filed his brief on the 3rd September, 2003. The Practice Direction No.2 of 2002 made by the President of the Court of Appeal and dated 15th April, 2002 provides for a period of three days within which the respondent is to file his brief and the said brief having been so filed out of time is incompetent.”

The provisions of paragraph 43 of First Schedule to the Electoral Act stipulate as follows –
“43(1) The tribunal or court shall have power, subject to the provisions of section 154 of this Act and paragraph 14 of this Schedule, to enlarge time for doing any act or taking any proceedings on such terms (if any) as the  Justice of the case may require except otherwise provided by any other provision of this Schedule.

(2) An enlargement of time may be ordered although the application for the enlargement is not made until after the expiration of the time appointed or allowed.

(3) When the time for delivering a pleading or document of filing any affidavit, answer or document, or doing anything or act is or has been fixed or limited by any of the sections, paragraphs or rules under or in pursuance of this Act or by a direction or an order of the tribunal or court, the costs of an application to extend the time, where allowed or of an order made thereon shall be borne by the party making the application unless the tribunal or court otherwise orders”.

Having taken an X-ray of the averments in the affidavit in support filed by the applicant, it is clear that the record of appeal was only served on the senior counsel, B. Ojo, for the appellant at the registry of the court of Appeal, Abuja on 1st of March, 2004. Paragraph 4(a); that learned SAN for the applicant obtained instruction of the 2nd respondent/appellant to prosecute the appeal on 5/3/2004. These material facts have not been countered by the appellant/respondent.

The position of the law is that where affidavit evidence has not been challenged or contradicted by way of counter-affidavit facts deposed to in such affidavit are deemed admitted. See Fawehinmi v. Abacha (1996) 5 NWLR (Pt. 447) 198; Adegoroye v. Adegoroye (1996) 2 NWLR (Pt. 433) 712; Ejikeme v. Ibekwe (1997) 7 NWLR (Pt. 514) 592; Okeke v. A.-G., Anambra State (1997) 9 NWLR (Pt. 519) 123.

In the case of Abubakar v. INEC (supra) referred to by learned counsel for the respondent it is clear that there was no application filed for extension of time to file briefs by the respondents. This is clear from the judgment of Chukwuma-Eneh, JCA. It is therefore distinguishable from the application on hand. Let me add that the grant of extension of time to perfect an act which, hitherto, could not be performed within the time limited by rules of practice or other statutes, except where to do so would occasion in Justice on one of the parties, is one of such situations where a court of law would readily exercise its judicial discretion in furtherance of its quest to see that  Justice is done meritoriously to a deserving party.

This can certainly be done when the matter in litigation is allowed to proceed to full trial. Pats-Acholonu, JSC observed in the case of Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554 as follows:”
As much as possible but more particularly in an election petition case involving a quest for an adjudication in respect as to the competence of the election, it must be stressed that every minute matter should be given due consideration so that in a desire to handle the matter expeditiously there may not be a tendency to be over technical in our approach. A wide berth has to be given to the parties and as much as possible it shall be encouraged that such election matters be canvassed on their merits except where there is obvious and manifest irregularity or glaring incompetence which no court by any stretch of imagination can cause to be restructured.”

In conclusion, I find merit in this application. The application is hereby granted in the following terms:
“1. Time is extended to today within which the applicant shall file its 2nd respondent’s brief of argument.
2. Brief of argument for the 2nd respondent filed on 8th March, 2004 is deemed as properly filed and served today.
3. The appellant/respondent is granted 48 hours within which to file and serve a reply brief, if necessary.

I make no order as to costs.

Other Citations: (2004)LCN/1578(CA)