Chief Great Ovedje Ogboru V. President Court of Appeal & Anor. (2005)

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BULKACHUWA, J.C.A.

By an application filed before this court on the 29/9/2005, the appellant/applicant prayed for the following reliefs: –

1. An order for extension of time within which the appellant/applicant can appeal against the order of Hon. Justice Z. A. Smith of Delta State High Court, Asaba, made on 3rd August, 2005, in suit No. AM/44/2005/M1.
2. An order deeming the notice of appeal already filed and served as being properly filed and served.
3. An order granting a departure from the rules of this court by allowing the appellant/applicant to compile the record of appeal and treating the bundle of documents already compiled and filed in this court and marked exhibit B as the record of appeal in this case.
4. An order accelerating the hearing of the substantive appeal by abridging the time within which the parties are to file their briefs of argument and setting the substantive appeal down for hearing.

And for such further or other orders as this court may deem fit to make in the circumstance.

The application is supported by an affidavit of 24 paragraphs deposed to by Kolawole Abiri a legal practitioner in the chambers of leading counsel to the appellant/applicant. It is also supported by three annextures which includes the proposed record of Appeal.

The 2nd respondent to this application raised no objection to the 1st – 3rd prayers in the motion, but opposed the 4th prayer in respect of which he filed a counter-affidavit of 4 paragraphs on the 17/10/2005.

The 1st respondent conceded to the application.

As all counsel for the respondents are not opposing prayers 1, 2 and 3 they are accordingly granted as prayed. The consequential orders in respect of these prayers will follow in due course of this ruling.

That leaves only prayer 4 which is that of abridging the time within which parties may file their respective briefs and an order of accelerated hearing of the substantive appeal.

In his submission on this application, Agbamu of learned Counsel for the applicant submitted that this appeal being in respect of an election petition the provision of the Practice Direction 2003 is applicable and provides the time frame of 3 days and two days for the filing of briefs by the appellant and the respondents respectively, pointing out the need for the determination of election petition as expeditiously as possible.

He cites Yusuf and Anor v. Ibekwe and 4 Others, In Re: FRA Williams (No.1) (2001) 9 NWLR (Pt. 718) 329 as authority that this court has the power to grant or order for an accelerated hearing of an appeal, particularly so as in the instant case which is an election petition matter. He urged us to grant prayer 4 as prayed.

Learned Senior Advocate Ohwovuriole of counsel for the respondent in opposing the application submits that the subject matter of this application or the substantive appeal is not one based on an election petition it is rather based on an application to enforce the 2nd respondent fundamental rights en rem. He argues that the Practice Direction is not applicable rather it is an ordinary appeal in which case it is the provision of Order 6 rule 4 of the Court of Appeal rules which grants the parties 60 days and 45 days for the appellant and the respondent within which to file their respective briefs which is applicable.

He points out that there are no exceptional circumstances in this application to warrant the abridgement of time sought by the applicant and urged us to refuse the application.

The question one poses, here, is whether the cause of action giving rise to this appeal is one which pertain as maintained by the applicant to an election petition or one based on the respondents’ application for the enforcement of his fundamental rights en rem before the lower court, as contended by the 2nd respondent.

It is trite, that a cause of action is the circumstances or the entire set of circumstances that give rise to an enforceable claim. It is therefore said to be such fact or combination of facts which a party must prove to be entitled to a positive relief in respect of his claim. Without such fact or facts in place, the right of action would not arise. See Savage v. Uwaechia (1972) 2 SC 214; Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1; Hanseatic Int. Ltd. v. Usang (2002) 13 NWLR (Pt.784) 376.