Chief Sergeant C. Awuse V. Dr. Peter Odili (2005)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

In this interlocutory appeal, the ruling of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal, sitting in Port Harcourt, Rivers State, delivered on 16th February, 2004, wherein the tribunal granted first respondent enlargement of time within which to file reply to the petition is being contested. Upon service of the petition on the first respondent, he duly entered appearance. Thereafter, he challenged the competence of the petition and therefore, failed or neglected to reply to the petition pending the determination of notice of his intention to rely on a preliminary objection by the Supreme Court, even though there is no right of appeal to that court.

On determination of the appeal to the Supreme Court, the first respondent filed his reply to the petition on 4th December, 2003, as well as an application for extension of time to file the said reply.

The petitioner opposed the application for enlargement of time by filing a motion for striking out of the first respondent’s reply already filed. The two applications were taken together.

On 16th February, 2004, the tribunal in its reserved and considered ruling dismissed the petitioner’s application and granted first respondent’s application for extension of time and deemed the reply already filed as properly filed and served on all the parties to the proceedings.

Being unhappy and dissatisfied with the ruling, the petitioner filed the instant appeal resting on three grounds of appeal.

The petitioner (hereinafter referred to as the appellant) formulated the following two issues as calling for determination in the instant appeal.

“(a) whether the tribunal had the competence to extend the time for filing a reply to a petition.

(b) assuming without conceding that the tribunal had competence to extend time, whether their Lordships had exercised the discretion properly.

Issue (a) was related to grounds one and three of the grounds of appeal while issue (b) derived from the remaining ground two.

In my respectful opinion, the only issue calling for determination in this interlocutory appeal is the competence of the appeal itself. In this connection, at the hearing of the appeal, we directed the attention of the learned Senior Counsel appearing for both parties to the provisions of section 241(2)(a) of the Constitution of Federal Republic of Nigeria, 1999, and invited counsel to address the court thereon.

Chief Ahamba, SAN, in his clear and unequivocal submission contended that this matter does not come within the ambit of section 241 (2)(a) of the Constitution and rather it falls within the scope of section 246 of the same Constitution. Learned Senior Counsel referred to the word “decision” which has been defined to include interlocutory decision in Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446, 499 and contended that the makers of the Constitution might as well have included section 241(2)(a) under section 246 if they had so intended. Learned Senior Counsel referred to Buhari v. Obasanjo (2003) 15 NWLR (Pt. 843) 236, and explained that it deals with calculation of period for filing a reply to ascertain whether a reply already put in was filed within the time prescribed or not; and not an authority for extension of time to file a reply.

On the other hand, learned Senior Counsel for respondent, Mr. Wifa contended that sections 246 and 285 deal with election matters. Learned Senior Counsel further contended that while section 285 of the Constitution deal with establishment of tribunals, section 246 of the same Constitution grants the right of appeal and was tempted to say that the issue of election is compartmentalized. After the vacillation, learned Senior Counsel for respondent said that the provisions of section 241 of the Constitution are clear and unambiguous, it seemed to him that it could be read into the provisions of sections 246 and 285 of the Constitution and so the appeal is incompetent.

There is substance in the submission of the learned Senior Counsel that section 241(2)(a) of the Constitution directly deals with right of appeal or otherwise from a decision of a High Court to the Court of Appeal and not necessarily with appeal from election tribunal to the Court of Appeal which right of appeal is conferred under section 246 of the same Constitution. The purpose of section 241(2)(a) is to ensure that the principle of natural justice which demands that when a person’s civil rights and obligations are being impugned or call for determination, he should be given opportunity to defend himself and thus given fair hearing – audi alteram partem.