David Barau V. I.N.E.C. & Anor (2010) LLJR-CA

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BODE RHODES-VIVOUR, J.C.A (Delivering the Lead Ruling)

The Appellant/Applicant seeks by his Motion on Notice filed on the 27th of April, 2010 and brought under Order 7 Rule 10, 8 Rule 10(1) 17 (2) of the court of Appeal Rules 2007.

The Practice Direction No.2 of 2007 and the inherent jurisdiction of this Honourable Court, the following:

1. An order extending the time for the Appellant to compile and transmit the Record of Appeal to this Court.
2. An order deeming the Record of Appeal already compiled and transmitted by the appellant as properly compiled and transmitted to this Court.
3. An order extending time within which the appellant may file his Brief of argument in the appeal.
4. An order deeming the appellants Brief of argument already filed as an independent and separate process and served, as properly filed and served on all the Respondents.

The application is supported by a 12 paragraph affidavit deposed to By I.K.C. Kanu Esq., a legal practitioner in chambers of Learned Counsel for the Appellant/Appellant. Annexed to it are documents marked Exhibits A and B.

Both counsel for the Respondents did not file a counter-affidavit because they were served on the 29th of April, 2010, the day the application was heard.

The Appellant and the 2nd Respondent contested the Gubernatorial Elections in Adamawa State on the 14th day of April, 2007. The election was nullified by the Governorship/National Assembly, Legislative Houses Petition Tribunal which sat in Yola Adamawa State. The decision was affirmed by the Court of Appeal on the 26th day of April, 2008. The Court of Appeal ordered a re-run of the election. At the conclusion of the re-run the Appellant lost and so the 1st Respondent declared the 2nd Respondent the duly elected Governor of Adamawa State.

Dissatisfied with the results declared by the 1st Respondent, the Appellant (the PPA candidate) filed a petition at the Governorship/National Assembly, Legislative Houses Petition Tribunal. The Tribunal found that the Petition had been abandoned and dismissed it on the 25th day of July, 2008 pursuant to paragraph 3 (4) and (5) of the Practice Directions 2007. This decision did not go down well with the Appellant, and so he filed a Notice of Appeal dated the 7th of August, 2008. (There is nothing to show when it was filed).

Prior to the filling of this application both Counsel for the 1st and 2nd Respondents filed identical applications on 11/12/09 and 23/4/12 seeking dismissal of the appeal for want of diligent prosecution. This application is to regularize the Appellants brief so that the appeal could be heard. At the hearing of the application on the 29th day of April, 2010, Mr D. U. Egbele Learned Counsel for the Appellant/Applicant abandoned prayers 1 and 2 and urged us to grant prayers 3 and 4, contending that the Court should be magnanimous in hearing the appeal since the Appellants brief has been filed.

Learned Counsel for the 1st Respondent, Mr. Ayo Akam did not oppose the application.

Learned Counsel for the 2nd Respondent, Mr. O. Akoni SAN opposed the application. He observed that the. Record of Appeal was compiled, and transmitted to this Court and served on the parties sometime in August, 2008, but it was only in April, 2010 that the Appellant filed his brief. He further observed that the affidavit in support did not state when the applicant was served the Record of Appeal and why he was unable to file his Brief within 10 days after he was served with the Record of Appeal. Relying on Section 5 of the Practice Direction No. 2 of 2007 he further observed that there has been non compliance with the said provision and the application should be dismissed for want of diligent prosecution.

The Appellant/Applicant now seeks by this application two prayers to wit:

(a) An order extending the time within which the Appellant may file his Brief;

(b) An order deeming the Appellants Brief already filed as an independent and separate process and served, as properly filed and served on all the Respondents.

Prayers 1 and 2 abandoned are hereby struck out.