Legalpedia Citation: (2015-10) Legalpedia (CA) 14021

In the Court of Appeal

Wed Oct 14, 2015

Suit Number: CA/A/EPT/520/2015

CORAM

PARTIES

HON. JOHN AKPAN HARRYALL PROGRESSIVE CONGRESS

APPELLANTS

HON. MARK ESSETPEOPLES DEMOCRATIC PARTY (PDP)INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEALS, JURISDICTION, JUDGMENT, ELECTORAL LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is an appeal against the ruling of the Akwa Ibom State National/State House of Assembly Tribunal, sitting in Abuja. The facts of the case briefly are that the appellant and 1st respondent contested the election into the Akwa Ibom State House of Assembly for Nsit Atai State Constituency held on 11th day of April, 2015. At the end of the election, the 1st respondent was declared the winner on the same 11/04/2015. The appellant filed a petition on 02/05/2015 seeking to set aside the declaration and return of the 1st respondent. The 1st respondent brought a motion at the Tribunal on 12/08/2015 seeking the nullification and dismissal of the petition on the ground that the petition was filed outside the 21 days period allowed by the Constitution. After the hearing of the motion on 21/08/2015 a ruling was delivered on 26/08/2015 striking the petition as statute barred. The Appellant being dissatisfied with the ruling of the tribunal has launched an appeal to this instant Court.

HELD

Appeal struck out.

ISSUES

Whether the Tribunal was right in holding that the petition, the subject matter of this appeal was filed out of time, by virtue of the provisions of section 285(5) of the 1999 Constitution (as amended)”?

RATIONES DECIDENDI

GROUND OF APPEAL – PURPOSE OF A GROUND OF APPEAL

This submission of the appellants counsel is a total misconception of the law. This is because a ground of appeal must attack or complain about the decision on appeal. See Shettima Vs Goni (2011) 10 SCNJ 66. Where there is no decision or ruling of the tribunal contained in the record of appeal, the appellate court is left with nothing to adjudicate upon. This court can only exercise its power where it has jurisdiction to act, not where the court is deprived of jurisdiction over the matter. PER – HON. JUSTICE TANI YUSUF HASSAN, JCA

 

RECORD OF APPEAL – EFFECT OF A RULING/JUDGMENT APPEALED AGAINST NOT BEING CONTAINED IN THE RECORD OF APPEAL TRANSMITTED

As I have stated above, the ruling appealed against which is not contained in the record of appeal transmitted on 04/09/2015, there is nothing for us to hear and determine. It will amount to an exercise in futility as we have no jurisdiction to deal with a matter complained of, which is not before us. PER – HON. JUSTICE TANI YUSUF HASSAN, JCA

RECORD OF APPEAL – DUTY OF A LITIGANT OR COUNSEL TO ENSURE ALL MATTERS IN THE CASE ARE CONTAINED IN THE RECORD OF APPEAL BEFORE IT IS TRANSMITTED

A diligent litigant or counsel owes a duty to ensure that the record of appeal contained all that matters in the case before it is transmitted. Equity aids the diligent and not the indolent. PER – HON. JUSTICE TANI YUSUF HASSAN, JCA

RECORD OF APPEAL – EFFECT OF A REGISTRAR’S FAILURE IN HIS DUTY TO COMPILE AND TRANSMIT THE RECORD OF APPEAL IN ACCORDANCE TO THE PROVISION OF THE RULES

By Order 8 Rule 4 of the Court of Appeal Rules where the Registrar failed in his duty of compilation and transmission of the record in accordance with the provisions of the Rules, it shall become mandatory for the appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the Court after the registrar’s failure. This the appellants have failed to do. The end result is that, the record being incomplete is incompetent. Ground 3 of the preliminary objection has merit and it is sustained. PER – HON. JUSTICE TANI YUSUF HASSAN, JCA

PRACTICE DIRECTIONS – THE EFFECT AND APPLICABILITY OF PRACTICE DIRECTIONS 2011

Practice Directions 2011 is to the effect that it shall apply and be observed in the Election Tribunals and in the Court of Appeal when sitting as a tribunal or when hearing an appeal from the tribunal. In Ngige Vs INEC (2015) 1 NWLR (part 1440) 281, the Supreme Court held that since election matters are sui generis, the rules of Interpretation Act may not apply to elections or election related matters and time provided in the Practice Directions 2011, cannot be extended. PER – HON. JUSTICE TANI YUSUF HASSAN, JCA

JURISDICTION – CONDITIONS WHICH BE MET BEFORE A COURT COULD ASSUME JURISDICTION

However, in resolving these grounds of objection the Supreme Court in Madukolu and others Vs Nkemdilim (1962) 1 All NLR 587 set out the conditions which must be met before a court could assume jurisdiction in any matter as follows:

1. i) It is properly constituted with respect to number and qualification of its members;

1. ii) It has jurisdiction over the subject matter;

iii)    The action is initiated by due process of law;

1. iv)    The condition precedent to the exercise of its jurisdiction has been fulfilled.

PER – HON. JUSTICE TANI YUSUF HASSAN, JCA

 

SUPPLEMENTARY RECORD OF APPEAL – WHETHER OR NOT THE FILING OF SUPPLEMENTARY RECORD OF APPEAL WITHIN TIME IS FUNDAMENTAL TO THE COMPETENCE OF THE APPEAL AND JURISDICTION OF THE COURT

This is so because filing the supplementary record within the time specified is fundamental to the competence of the appeal and the jurisdiction of the court. It follows therefore that in computation of time within which to file the supplementary record, the ascertainment of the date of filing the Notice of Appeal is very important. It is with reference to the date of filing that the calculation of the number of days within which to file the supplementary record is made. PER – HON. JUSTICE TANI YUSUF HASSAN, JCA

PRACTICE DIRECTION 2011 – WHETHER OR NOT THE TIME PRESCRIBED BY THE PRACTICE DIRECTIONS FOR AN ACT TO BE PERFORMED CAN BE EXTENDED

The time fixed in the Practice Directions to do whatever act cannot be extended as the court has no jurisdiction to exercise in that matter – see ACN Vs Nyako No. SC 409/2012. PER – HON. JUSTICE TANI YUSUF HASSAN, JCA

SUPPLEMENTARY RECORD OF APPEAL – THE COMPETENCE OF A SUPPLEMENTARY RECORD OF APPEAL TRANSMITTED AFTER THE EXPIRATION OF THE TIME LIMITED

The supplementary record transmitted after the expiration of the time limited is incompetent. Any defect in competence deprives the court of jurisdiction to determine the matter. PER – HON. JUSTICE TANI YUSUF HASSAN, JCA

 

SUPPLEMENTARY RECORD OF APPEAL – THE COMPENTENCE OF A SUPPLEMENTARY RECORD OF APPEAL TRANSMITTED OUTSIDE THE STATUTORY PERIOD STIPULATED UNDER THE PRACTICE DIRECTIONS 2011

The supplementary record of appeal compiled and transmitted to this court on 08/09/2015 was compiled and transmitted outside the statutory period stipulated under the Practice Directions and it is, therefore, incompetent. PER – MOORE A. A. ADUMEIN, JCA

RECORD OF APPEAL – EFFECT OF A RECORD OF APPEAL NOT CONTAINING THE DECISION OR RULING APPEALED AGAINST

The record of appeal compiled and transmitted by the Tribunal to this court on 04/09/2015 does not contain a fundamental and threshold process – the decision or ruling of the tribunal which the appellants have appealed against. The record of appeal is therefore incomplete. PER – MOORE A. A. ADUMEIN, JCA

RECORD OF APPEAL – WHETHER OR NOT AN APPELLATE COURT CAN BASE ITS DECISION ON AN INCOMPLETE RECORD OF APPEAL

The law is that the Court of Appeal cannot base its decision on an incomplete record of appeal. See Okafor V. Onedibe (2003) 9 NWLR (part 825) 399 and Nyah V. Noah (2007) 4 NWLR (part 1024) 320. PER – MOORE A. A. ADUMEIN, JCA

RECORD OF APPEAL – EFFECT OF A RECORD OF APPEEAL WITHOUT THE DECISION OR RULING APPEALED AGAINST

In the absence of the decision or ruling appealed against, the court is at the mercy of mere speculation. A court of law has a duty not to speculate. See Ejezie V. Anuwu (2008) 12 NWLR (part 1101) 446 and Uwagboe V. The State (2008) 12 NWLR (part 1102) 621. PER – MOORE A. A. ADUMEIN, JCA

SUPPLEMENTARY RECORD OF APPEAL – WHETHER OR NOT A SUPPLEMENTARY RECORD OF APPEAL TRANSMITTED OUT OF TIME MAKES THE APPEAL IMPROPERLY INITIATED

The fact that the Supplementary Record of Appeal was transmitted out of time makes the appeal improperly initiated, and therefore incompetent, thus robbing this Honourable Court of jurisdiction to hear and determine the appeal. In view of this and for the exhaustive reasons advanced by my learned brother, the appeal is consequently struck out by me. PER – MOHAMMED MUSTAPHA. JCA

CASES CITED

STATUTES REFERRED TO

Court of Appeal Rules, 2011

Electoral Act, 2010 (as amended)

Practice Directions 2011

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