Rev. Dr. J.K.U. Famous Enimikemi (SJP) V. Chief Timipre Sylva & Ors. (2007)

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GARBA, J.C.A.

The applicant in the motion filed on 4th October, 2007 is praying the court for the following orders: –

(a) Extension of time within which to apply for leave to appeal against the ruling of the Bayelsa State National Assembly Governorship and Legislative Election Tribunal delivered on 11th day of July, 2007.

(b) Leave of this Court to appeal against the said ruling/decision of the said tribunal.

(c) Extension of time within which to appeal against the said ruling/decision of the said tribunal.

(d) Deeming the notice of appeal exhibit UKM2 as duly filed and served by the petitioner/applicant having paid the appropriate filing fees and for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.

The motion was brought under Order 3 rule 4(1) and (2) of the Court of Appeal Rules, 2002 and supported by a 17-paragraphs affidavit sworn to by the applicant. Annexed to the sworn affidavit are records of proceedings of the Tribunal on 11th July 2007 containing a notice of appeal and a written address.

After service of the motion papers on them, the respondents filed counter affidavits as well as notices of preliminary objection to the motion. Learned counsel for the respondents also attached written submissions to their respective counter affidavits and notices of preliminary objection as was done by the learned counsel for the applicant. However up to the 4th of December, 2007 when the motion came up for hearing, there was no record of a reply from the applicant to the preliminary objection raised by the respondents. In addition on that date, the applicant who was in court was not represented by counsel for whom the motion was adjourned the previous day.

At that stage the applicant sought that the motion be adjourned again to enable the absent counsel be in court but the learned counsel for the 1st respondent drew the attention of the court to the written address annexed to the sworn affidavit of the motion in which counsel for the applicant had made submission in support of the motion. We were urged to deem the said written address as the arguments in support of the motion and proceed with the hearing thereof. After a reading of the written address and explaining the unusual procedure to the applicant, the court deemed the motion as having been duly argued by counsel on the written address attached to the sworn affidavit and filed along with the motion. We did that in order to save precious time and further costs in the prosecution of the motion.

Consequently, the learned counsel for the 1st respondent adopted and relied on the written submission attached to the counter affidavit and filed on the 19th of October, 2007. He urged us to uphold the preliminary objection and strike out the motion for being incompetent. In the alternative, we should dismiss it for lacking in merits.

The 2nd – 6th respondents’ counter affidavit and notice of preliminary objection were filed on 22nd October, 2007 along a written address. Learned counsel adopted and relied on the written address in urging us to strike out or dismiss the motion for reason contained therein.

In keeping with established practice, since the preliminary objection challenges the competence of the motion, it needs to be determined first. The grounds of the objection by the 1st respondent are as follows:-

“1. This Honourable Court can only entertain an appeal from an Election Petition Tribunal following a decision on the merit which is not the case in the appeal now sought to be filed by the applicant.

2. That assuming but not conceding that this Honourable Court has powers to entertain the appeal, there is no jurisdiction in the Court to grant extension of time to appeal either on an interlocutory or final decision.”

Learned counsel for the 1st respondent coined the above grounds into issues in the written address and argued them together. The issues formulated by him are:-