All Progressive Grand Alliance V. Peoples Democratic Party & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

P.O. ADEREMI. J.C.A. (Delivering the Lead Ruling)

By the application filed on the 2nd of October 2003, the appellant/applicant are praying for the following orders:

i) An order granting the appellant/applicant leave to amend its Notice and Grounds of Appeal by filing 4 additional grounds of appeal as set out in the memorandum of additional grounds of appeal annexed thereto.

ii) An order deeming the memorandum of the proposed additional grounds of appeal as having been duly filed as the additional ground of appeal for this suit.

The 1st respondent was served but was absent.

The application is supported by a 13-paragraph affidavit to which were attached two exhibits i.e. the filing fee receipt and a process headed “Memorandum of Additional Grounds of Appeal.” No counter-affidavit was filed. When the application came before us on the 14th of October 2003, Dr. Mbachu, learned counsel for the applicant, in urging us to grant the prayers contained in the body of the application relied on the said 13- paragraph affidavit together with the exhibits attached.

Chief Nwaiwu, S.A.N., learned Senior counsel for the 2nd and 3rd respondents, in opposition submitted that the application was incompetent, the proposed additional grounds of appeal were not attached. The appellant’s brief of argument was not filed within time and there was no application to file the process out of time. He again submitted while urging that the application be struck out. Chief Nwakanma, S.A.N., learned Senior counsel for the 4th to 16th respondents referred to paragraph 5 of the supporting affidavit wherein it was deposed that the Secretary to the Tribunal had compiled the Record of Appeal and had served a copy of the said Record on the petitioner on the 3rd of September 2003.

Learned Senior counsel had drawn our attention to paragraph 5 of the Practice Direction No. 2 of 2003 made by the President of the Court of Appeal pursuant to Section 285 of the Constitution, Section 8(2) of the Court of Appeal Act, 1976 and Section 137 of the Electoral Act 2002 No. 4 provision of which reads:-

“Within a period of 5 days after the service of the record of proceedings, the appellant shall file in the Court and serve all the respondents a written brief, being a succinct statement of his arguments in the appeal.”

and submitted that the provisions of the afore-mentioned paragraphs have not been complied with by the appellant and since there is no application for an order enlarging the time within which to file the brief, the learned senior counsel urged us to invoke the provisions of Order 6 Rule 10 of the Court of Appeal Rules and strike out the application for being incompetent.

In reply on point of law why Dr. Mbachu urged us not to countenance the provision of paragraph 5 of the Practice Direction, as according to him, it lacked legal force for reason of not having been gazetted.

I shall start by defining the term “PRACTICE DIRECTION” although the two words seem to be separate and independent of each other, however, when juxtaposed, in legal parlance “PRACTICE DIRECTION” can be said to be concerned with the rules directing the manner in which applications in an interlocutory proceedings in court shall be dealt with or regulated and the provision of guidelines as to what should be done. In other words, “PRACTICE DIRECTION” always concerns and regulates the manner a particular rule of court shall be complied with or adhered to. On the nature of and how made and by who the supreme court said of “PRACTICE DIRECTION” in UNIVERSITY OF LAGOS AND ANOR. vs. AIGORO (1984) 11 sc 152 per the judgment of Bello J.S.C (as he then was) at pages 159-160 and I quote:

“Now I consider it pertinent to define “practice direction” which may be defined as a direction given by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed and obeyed. In all the common law jurisdictions there has always been an authority vested with the power to issue such directions….

Now coming home, it may be observed that the provisions of our Supreme Court Rules 1977 Order 1 Rules 8,9, 10(1), 14 and 15 are clear and unambiguous. The Rules in clear terms empower the Chief Justice to give directions on the matters Stated by the rules which speak for themselves.”