Oyekan & Oyedeji V Akinjide S.A. Akinleye, Electoral Officer For Ibadan South-west Federal Constituency (1965)

ONYEAMA JSC

This is an application for leave to appeal to this Court from an interlocutory order made during the hearing of an election petition by Fatayi-Williams, J. in the High Court of Western Nigeria at Ibadan on the 31st of March, 1965.  The matter arose in this way:

The applicants filed an election petition in the High Court at Ibadan in which they cited The present respondents. The respondents successfully moved The High Court, against the applicants’ objections, for further and better particulars of certain allegations contained in the election petition. The applicants being of the view that the order of the High Court if complied with would have the effect of making them disclose their evidence to their disadvantage and of rendering the trial of the election petition ineffectual, applied to the High court for leave to appeal from the order.

Fatayi-Williams, J. to whom the application was made considered that in was misconceived and dismissed it. The applicants then applied to this Court. We intimated that the application would be dismissed and now give reasons.

Mr Agbaje who appeared for the applicants has argued that the combined effect of S.125(1) of the Electoral Act, 1962 (No. 31 of 1962), and S.198(1) of the High Court Law of Western Nigeria is to permit a party dissatisfied with an interlocutory order in an election petition to appeal with leave of the competent High court or this court. The argument runs like this: under Section 53(1) of the Constitution of the Federation the High court was vested with jurisdiction to hear and determine the question raised in the petition; by virtue of Section 53(2) parliament passed the Electoral Act of 1962 Section 125(1) of which provides that:

“All interlocutory questions and matters shall be heard and disposed of before a Judge, who shall have the same control over the proceedings as a Judge in the ordinary proceedings of the Court.”

This provision it was submitted, meant that interlocutory questions and matters in election petitions were to be considered to be of the same nature as interlocutory questions and matters in civil proceedings and subject to the same rights of appeal; and, therefore, the provisions of law regulating appeals from interlocutory orders in civil cases were applicable to appeals from interlocutory orders in election petitions; and since by section 198(1) of the High Court Law of Western Nigeria an appeal lay, with leave of the High court or of this Court from interlocutory order in the course of civil proceedings, an appeal lay, with such leave, from an interlocutory order in the course of hearing an election petition.

We did not find any merit in this argument. The determination of questions respecting membership of parliament is provided for in Section 53 of the Constitution of the federation and under this Section parliament may make provision with respect to the powers, practice and procedure of the High Court in election petitions.

The Electoral Act 1962 was passed by parliament and Section 125 of it sets out the powers of a Judge hearing an election petition; these powers include “the same control over the proceedings” as a Judge would have in ordinary proceedings of the Court. There is no warrant for construing this section as assimilating an election petition to ordinary civil proceedings for purposes of appeal. It vests the Judge with powers of control and does not purport to define the quality of proceedings on an election petition or prescribe rights of appeal from those proceedings.

The proceedings on an election petition are special proceedings for which special provisions are made in the Constitution, and appeals are governed by Section 117(3) of the constitution.

It is sufficient for the purposes of this application to say that we do not think that parliament in Section 125 of the Electoral Act 1962 made any provision for appeals. As the whole of Mr Agbaje’s argument was based on the false assumption that it was possible to read Section 198(1) of the High Court Law of Western Nigeria into Section 125 of the Electoral Act, it failed, and the application for leave to appeal was dismissed.

Other Citation: (1965) LCN/1240(SC)