Mohammed Hassan Hashim Rimi V. Independent National Electoral Commission (Inec) & Anor (2004)

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IBRAHIM TANKO MUHAMMAD, J.C.A. 

This is a motion on notice filed by the 2nd respondent/applicant for the following reliefs:
“1. An order of enlargement of time within which the 2nd respondent/applicant may file its brief of argument in this appeal.

2. An order deeming the brief of argument already filed as being properly filed. And for such further order(s) as this Honourable Court may deem it fit to make in the circumstance of this case.”

The grounds upon which the application was based are as follows:
“1. The 2nd respondent/applicant could not file its brief of argument within time limited by the Practice Direction No.1 of 2003.

2. The delay in filing the brief was not meant to show disrespect to the court.

3. The 2nd respondent/applicant has prepared and file his brief of argument.”

While moving the motion, learned counsel for the 2nd respondent/applicant Mr. Owonikoko stated that the application was brought pursuant to Order 3 rule 4 of this court’s rules and under its inherent jurisdiction. It is supported by a six-paragraph affidavit sworn to by Toyin Aladegbami. The proposed brief of argument for the 2nd respondent was annexed to the affidavit as exhibit ‘A’.

Learned counsel sought the leave of court to amend relief No.2 of the application to include an order for deeming the service of this brief of argument effected on the appellant and the 1st respondent as duly served. Leave was granted therefor and relief No.2 of the application was amended to include a deeming order for the service of 2nd respondent’s brief on the appellant and the 1st respondent.

Learned counsel for the applicant submitted that the record of appeal was served on him at the Court of Appeal Registry, Abuja on 1/3/04 when he was there to file some processes. He made frantic effort to contact the 2nd respondent with a view to getting further instruction from him with regard to the prosecution of the appeal. The 2nd respondent/applicant could not be reached immediately though a message was left for him in that regard. It was only on Friday, 5th March that the learned counsel was able to obtain the instruction of the applicant. The 2nd respondent’s brief was prepared and annexed as exhibit ‘A’. The brief was paid for on the 8/3/04. The failure to file the brief of argument within time limited by the Practice Direction was not meant to show disrespect to this court. The applicant is desirous and willing to prosecute the appeal and that the respondents/applicants will not be prejudiced by the grant of this application.

Learned counsel for the appellant/respondent, Mr. Ameh opposed the application on points of law. He submitted that this is an election matter, and going by the Practice Directions, there is no room for extension of time to file brief of argument outside the stipulated period. He cited and relied on the case of Abubakar v. INEC & 3 Ors. (2004) 1 NWLR (Pt. 854) 207 at 242 D-F. He urged this court to refuse the application.

In his reply on points of law raised by learned counsel for the respondent, learned counsel for the applicant, submitted that the case of Abubakar v. INEC & 3 Ors. is not applicable in this case. The Electoral Act, paragraph 49 of 1st Schedule provides for extension of time to file processes other than petition and reply to petition. The Supreme Court has construed these limitation provisions to accommodate amendments and extension of time.

Learned counsel cited the case of Alh. M. D. Yusuf & Anr. v. Chief O. Obasanjo (2003) 16 NWLR (Pt. 847) 554.

This is otherwise a simple application which should have been granted on the bench but for its special importance as it relates to the issue of extension of time to file processes of court including parties’ briefs of argument outside the time stipulated by law and the Practice Direction on election matters. In the case of Abubakar & 3 Ors. v. INEC (supra) cited by learned counsel for the respondent, there was an oral application made by learned counsel for 1st, 2nd, 5th – 82nd respondents for extension of time to enable him file the respondents brief for the 1st, 2nd, 5th – 82nd respondents out of time.

Although learned counsel later withdrew his application, the Court of Appeal ruled in respect of the 3rd respondent as follows:
“The 3rd respondent’s brief so called; cannot and will not be countenanced by the court as it offends the Practice Direction being filed out of time. There is therefore no brief filed in respect of or for the 3rd respondent in this appeal.”