Ani Gabriel Paul Wellington v. People’s Democratic Party & Ors (2023) LLJR-SC

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

MOHAMMED LAWAL GARBA, JSC (Delivering the leading judgment)

As an aspirant, the appellant had challenged the primary election conducted on the 25th May, 2022 for the selection/nomination of a candidate for the Akwa Ibom State Gubernatorial Election, 2023 at which the 2nd respondent emerged and was declared the winner, by the amended originating summons dated and filed on the 3rd August, 2022, before the Federal High Court, Uyo (trial court).

The trial court dismissed the appellants suit as a result of which the appellant filed an appeal against that decision, in the Court of Appeal, Calabar, Division (court below).

The appeal was later transferred to the Abuja Division of the court below for hearing in the course of which, it was realized that the appellants brief was filed outside the seven (7) days prescribed by the provision of paragraph 10 of the Election Proceeding Practice Directions, 2022, though with an application for extension of time to file same.

After hearing the application for extension of time to file the appellants brief, the court below, in a brief ruling delivered on the 24th December, 2022 stated and decided thus:-

We have seen the motion filed 24/12/2022 by the appellant for enlargement of time. Firstly, we note that this is a pre-election matter which is sui generis of its own kind and so governed. It has its rules and procedure contained in the Election Judicial Proceeding Practice Directions 2022 are rules as regard to pre-election matter and in particular order 10 provides specifically that an appeal on the appellant – the appellant shall mandatorily file his brief. Herein, the appellant was served with the record of appeal on 02/12/2022. It also states specifically for the respondent 5 days and 2 days for reply to the respondent’s brief if any. There is no doubt that pre-election matter in deed matters on election are time bound and must be conducted within the specific time period donated.

This court following the decision of the apex court has held and it remains our position that it has no power to enlarge time within the provision of the rules in respect of pre-election matters with the timelines to enlarge time.

This court in the case of Udom Udo Ekpoudom v. ARC Anor delivered on November such as the instant based on the aforestated position of the law and more so as explained and held by the apex court in the case of Maku v. Sule (2020) 20 WRN 44; (2022) 3 NWLR (Pt. 1817) 231 – to the effect that regardless of the powers of this Court to enlarge power for the fact that pre-election matters are bound by special and specific statutory provision.

The Court Appeal Order 8 – power to enlarge time is excluded. The specific provision bars the Election Judicial proceeding Practice Division.

In the result, this application cannot be allowed. It is incompetent and having been moved, it is hereby dismissed.

Thereafter, the court below proceeded to dismiss the appeal before it for want of diligent prosecution.

Miffed by that decision, the appellant brought this appeal on five (5) grounds contained on the notice and grounds of appeal filed on the 4th January, 2023 and in the appellants brief filed on 19th January, 2023, the following two (2) issues are submitted to the court for decision in the appeal:-

(1) Whether the learned Justices of the Court of Appeal were right when they dismissed the appeal of the appellant for lack of diligent prosecution pursuant to order 10 of the Election Judicial Proceedings Practice Direction 2022, and without regards to the superintending provisions of section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). (Grounds 1, 2 & 3 and the grounds of appeal).

(2) Whether the learned Justices of the Court of Appeal were right when they dismissed the appeal of the appellant by raising and determining suo motu the issue of their lack of judicial power to enlarge time regularizing the appellants brief of argument filed before them and misapplying the principle in the case of Maku v. Sule (2020) 20 WRN 44; (2022) 3 NWLR (Pt. 1817) 231 (grounds 4 & 5 of the grounds of appeal).