Adebisi Adegbuyi Esq & Anor. V. Hon. Ramoni Olalekan Mustapha & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Ruling )

This is a motion on Notice dated the 29th January, 2010 and filed on the 1st February, 2010. Arguing the motion, Counsel for the Applicant, Otunba Kalejaiye SAN said it is brought under paragraph 1 of the Practice Direction No. 2, 2007, Order 6 Rule 6 of the Court of Appeal rules 2007 and under the inherent powers of this Court. The application prays for an order to strike out the Notice of Appeal in the main matter dated the 7th May, 2008 and filed on the 8th May, 2008 and any appeal based on it. The grounds for the application are that the Notice of Appeal was filed out of time i.e. outside the 21 days allowed by law under paragraph 1 of the Practice Direction No.2, 2007 and further that this Court lacks jurisdiction to entertain any appeal based on the incompetent Notice of Appeal.

The Application is supported by a 6 paragraph affidavit. Attached are two exhibits – ‘AA’ and ’88’. Exhibit ’88’ is the Registrar’s statement while exhibit ‘AA’ is the Notice of Appeal. Counsel relied on the supporting affidavit especially paragraphs 4 and 5. He referred to the counter affidavit dated the 9th February 2010 and filed same day. Otunba Kalejaiye submitted that the deposition in paragraph 5 of the counter affidavit is a clear admission that the Notice of Appeal was filed on the 8th May, 2008 despite the use of the word ‘mysterious’. He submitted also that what could have resolved that mystery is for the Appellant to attach the treasury receipt issued to him for the filing of the Notice of Appeal and this the Appellant did not do. Learned Senior Counsel further submitted that this Court should invoke the provisions of section 149(d) of the Evidence Act to the effect that if he had produced the receipt it would have worked against him. He urged this Court to hold that there is no mystery in the filing of the Notice of Appeal by the Appellant.

Regarding the interpretation of paragraph 1 of the Practice Direction No. 2 of 2007, Counsel referred this Court to OLAWEPO V. SARAKI (2009) ALL FWLR PART 498 page 256 esp 316-317. It is the Applicant’s contention that judgment was delivered on the 11th April, 2008 and the 21 days enjoined by law started to run from the 17th April 2008. It included the 11th April, 2008 and that according to Applicant’s Counsel is the judicial interpretation of the word ‘within’ in paragraph 1 of the Practice Direction NO.2 of 2007.

According to learned senior Counsel for the Applicants this Ibadan Division of the Court of Appeal very recently had cause to pronounce again on paragraph 1 of the Practice Direction 2007 in the unreported decision in MUDASHIRU OYETUNDE HUSSEIN V. ISIAKA ADETUNJI ADELEKE & ORS Appeal No. CA/I/EPT/NA/69/08 delivered on the 17th December, 2009. Counsel submitted that 21 days reckoned from the 17th April, 2008 will bring the 21 days to the 7th May, 2008 and therefore a Notice of Appeal filed on the 8th May, 2008 would have been filed on the 22nd day – out of time.

Learned senior Counsel urged this court to follow that judgment in striking out the Notice of Appeal.

Responding, Mr. Taiwo Kupolati urged this Court to dismiss the application. He submitted that what is in issue is whether the Appellant is required to file their Notice of appeal within 21 days or within 3 months. Counsel referred to the preamble to the Practice Direction 2007. What is the effect of section 149 of the Electoral Act 2006, Counsel inquired? He went on to submit that the first specie of appeal to which section 149 of the Electoral Act relates is in effect of the decision made against a candidate returned by election by INEC. He contended that if the party returned whose election was invalidated by the election tribunal must appeal, he must do so within 21 days. The 1st Appellant Counsel said does not fall into that class. The 1st Appellant was not returned as the winner by INEC and his complaint at the election petition tribunal was also dismissed. In such a case all the authorities which have interpreted section 149 concur that the Appellant in this instance is entitled to 3 months within which he can appeal and not 21 days, Mr. Kupolati contended. The reason, he said, is that the party whose election was invalidated will only be entitled to remain in office if he files his appeal within 21 days.

That was the logic Counsel submitted. Mr. Kupolati further submitted that paragraph 1 of the Practice Direction does not exist in isolation to section 149. This issue Counsel said was the exact issue that was raised before this Court in the case of SIJUADE V. OYEWOLE Appeal No. CA/I/EPT/HA/78/08. Reference was also made to KAZEEM V. KOLA CA/I/EPT/HA/72/08 delivered on the 25th March 2009.

In these cases, Counsel said this Court was faced with a similar position. In these two decisions, it was held following the decision of the Supreme Court in BUHARI V. OBASANJO (2005) All FWLR PART 273 Page 1 at Pages 113-114 that section 149 does not regulate appeal filed by parties who were not returned in an election, Counsel submitted. The Court according to him also held that the Appellants in those two decisions were entitled to three months within which to file their appeal and their objections were dismissed. Counsel referred to pages 12-13 of SIJUADE’S case (supra). He further submitted that ADELEKE’s case (supra) and SARAKI’s case (supra) are distinguishable from this case.

Omoniyi Fayanju Counsel for the 3rd-1,234 Respondents aligned himself with arguments canvassed by Counsel to the Applicants. Otunba Kalejaiye replying on points of law submitted that BUHARI V. OBASANJO (supra) cited by Mr. Taiwo Kupolati was decided on the peculiar position of the Electoral Act 2002 and that the provision of paragraph 1 of the Practice Direction NO.2 of 2007 was not available at the time and as such BUHARI V. OBASANJO is not helpful in the determination of this issue. Learned senior Counsel submitted that section 149 of the Electoral Act is a peculiar provision of the Electoral Act 2006 with the sole aim of avoiding what Counsel referred to as ‘a political landscape of musical chairs, the provision being to protect the incumbent pending the determination of his appeal. Counsel further submitted that the Court of Appeal Act and the rules made thereunder were made by one and the same person – the President of the Court of Appeal. He further submitted that election appeals or election matters are sui generis and that the ordinary provisions applicable in court matters would not normally apply. Learned senior Counsel submitted that SIJUADE V. OYEWOLE (supra) was reached per incuriam and urged this court to strike out the Notice of Appeal.

I would imagine that the first thing to try to determine in the consideration of this application is when the Notice of Appeal was filed. Was it filed on the 7th May, 2008 or was it on the 8th May, 2008? Paragraph 5 of the supporting affidavit makes reference to two exhibits AA which is the Notice of Appeal while ‘BB’ is the Registrar’s statement. Exhibit AA is dated the 7th May, 2008 but no filing date is therein indicated.

However, the third and last paragraph of exhibit BB reads as follows:

”Being dissatisfied with the decision of this Honourable Tribunal (Election Petition Tribunal Abeokuta) delivered on the 17th April, 2008, the Petitioners/Appellants appealed to the Court of Appeal Ibadan Division, vide a Notice of Appeal dated the 7th May, 2007 and filed on the 8th May, 2008.”

Thus the Registrar’s statement on the issue of filing is that though the Notice of Appeal is dated 7th May, 2008, the said Notice of Appeal was filed on the 8th May, 2008. Respondent in paragraph 4 of his counter affidavit to the present application which he filed on the 9th February, 2010 stated as follows: ‘The Appellant’s Notice of appeal dated 7th May, 2008 was lodged and delivered to the secretary to the Election petition tribunal on 7th May, 2008 for filing and it was actually received and filed on the 7th May, 2008’ and went on to depose in paragraph 5 that it was quite mysterious to find that the said Notice of Appeal was endorsed as filed on the 8th May, 2008. What I find intriguing and deep food for thought is why in an electoral document of this nature where time is of the essence the filing date was not indicated on the notice of appeal. Nevertheless the Respondents upon filing of the Notice of Appeal must have been issued with a treasury receipt which bore the date of filing. They have certainly not denied not having been issued with one. I think that this is a clear case in which this Court will be right in invoking the provisions of section 149(d) of the Evidence Act and and I so hold that the Notice of Appeal dated 7th May, 2008 was filed on the 8th May, 2008.