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Sidi-Ali vs. P.D.P.


ADAMU SIDI-ALI

V

1.   YUSUF USMAN BABAN TAKWA

2.   THE RETURNING OFFICER, KWALI/GWAGWALADA/ KUJE/ABAJI FEDERAL CONSTITUENCY

3.   THE PRESIDING OFFICER, KWALI/GWAGWALADA/ KUJE/ABAJI FEDERAL CONSTITUENCY

4.   THE RESIDENT ELECTORAL COMMISSIONER, INEC, FEDERAL CAPITAL TERRITORY, GARKI

ABUJA

5.   MUSA HUSSAINI (THE ELECTORAL OFFICER)

KWALI AREA COUNCIL, FEDERAL CAPITAL

TERRITORY, GARKI ABUJA

6.   THE COLLATION OFFICER, YEBU WARD, KWALI

AREA COUNCIL, (TSETIM AKOSO) INEC, FBDERAL

CAPITAL TERRITORY, ABUJA

7.   INDEPENDENT NATIONAL ELECTORAL COMMISSION, (INEC)

IN RE: AN APPLICATION FOR EXTENSION OF TIME AND FOR

LEAVE TO APPEAL AS AN INTERESTED PARTY

PEOPLES DEMOCRATIC PARTY

V

1.   ADAMU SIDI-ALI

2.   THE RETURNING OFFICER, KWALI/GWAGWALADA/ KUJE/ABAJI FEDERAL CONSTITUENCY

3.   THE PRESIDING OFFICER, KWALI/GWAGWALADA/ KUJE/ABAJI FEDERAL CONSTITUENCY

4.   THE RESIDENT ELECTORAL COMMISSIONER,

INEC FEDERAL CAPITAL TERRITORY, GARKI

ABUJA

5.   MUSA HUSSAINI (THE ELECTORAL OFFICER)

KWALI AREA COUNCIL, FEDERAL CAPITAL

TERRITORY, GARKI ABUJA

6.   THE COLLATION OFFICER, YEBU WARD, KWALI AREA COUNCIL, (TSETIM AKOSO) INEC, FEDERAL

CAPITAL TERRITORY, ABUJA

7.   INDEPENDENT NATIONAL ELECTORAL COMMISSION, (INEC)

COURT OF APPEAL

( ABUJA DIVISION )

IBRAHIM TANKO MUHAMMAD, JCA ( Presided )

ZAINAB ADAMU BULKACHUWA, JCA

ALBERT GBADEBO ODUYEMI, JCA (Read the Lead Ruling)

CA/A/EP/137/2003

WEDNESDAY, 6TH AUGUST, 2003

APPEAL - Court of Appeal - Exercise of discretion in granting extension of time to appeal in ordinary civil appeals and election matters -  Distinction between

APPEAL - Court of Appeal - Time for filing appeal on election petition - Whether Court of Appeal can extend beyond statutory limit

APPEAL - Court of Appeal Act, section 25 - Time limit stipulated therein

-  Attitude of court thereto

APPEAL - Election appeals - Nature of

COURT - Court of Appeal - Exercise of discretion in granting extension of time to appeal in ordinary civil appeals and election matters -  Distinction between

COURT - Court of Appeal - Time for filing appeal on election petition -  Whether Court of Appeal can extend beyond statutory limit

ELECTION PETITION - Court of Appeal - Exercise of discretion in granting extension of time to appeal in ordinary civil appeals and election matters - Distinction between

ELECTION PETITION - Election appeals - Nature of

ELECTION PETITION - Election Tribunals - Appeals against decisions of  - Requirements therefor

ELECTION PETITION - Process relating to hearing and determination thereof - Time for filing of - Essence of

ELECTION PETITION - Section 138(1) and (2) of Electoral Act, 2002 -  Nature of provisions therein

ELECTION PETITION - Time for filing appeal - Whether Court of Appeal can extend beyond statutory limit

INTERPRETATION OF STATUTES - Statutes - Plain expressions therein -  Need to abide by same

PRACTICE AND PROCEDURE - Incompetence - Whether can be a ground for delay

STATUTES -  Court of Appeal Act, section 25 - Time limit stipulated therein - Attitude of court thereto

STATUTES - Electoral Act, 2002, section 138(1) and (2) - Provisions therein - Nature of

STATUTES - Electoral Act, 2002, section 138(1) and (2) - Legal consequences of

STATUTES - Limitation period stipulated therein - Consequence of

Issue:

Whether in view of the provisions of section 138(1) and (2) of the Electoral Act and paragraph 51 of the 1st Schedule to the Electoral Act, 2002 the Court of Appeal has discretion in extending the time limit stipulated under the Electoral Act, 2002 within which an appeal may be brought against the decision of an Election Petition Tribunal.

Facts:

The Peoples Democratic Party (PDP) as interested party/applicant filed a notice of motion at the Court of Appeal on 21/7/2003 wherein it sought for the following orders:

“1.     An order of extension of time within which the applicant  may apply for leave to appeal against the decision of the National Assembly Election Tribunal, Abuja in Petition No. ABJ/EPT/ 2 /2003 delivered on the 27th day of June, 2003 as an interested party.

2.              An order granting leave to the applicant to appeal against the said decision as an interested party.

3.              An order deeming the notice of appeal filed by the applicant without the leave of this Honourable court on 18th July, 2003 as properly filed and served, the appropriate fees having been paid.

ALTERNATIVELY

4.              An order of extension of time within which the applicant may apply for leave to appeal against the decision of the National Assembly Election Tribunal, Abuja in Petition No. ABJ/EPT/ 2 /2003 delivered on the 27th day of June, 2003 as an interested party.

5.              Leave to the applicant to appeal against the said decision as an interested party.

6.              An order for leave to the applicant to file notice of appeal against the said decision.

7.              Such further orders that this Honourable court may deem fit to make in the circumstance.”

In moving the motion counsel for the applicant withdrew orders 1 - 3 and restricted himself to orders 4 - 7. The major order being sought by the appellant is an order of the court for an extension of time within which to apply for leave to appeal against the decision of the Election Petition Tribunal, Abuja. Before bringing this application, the applicant had earlier brought an application for leave to appeal against the decision of the Tribunal. That application was brought within time but had to be struck out by the Court of Appeal on ground of being incompetent.

The court considered section 138(1) and (2) of Electoral Act and paragraph 51 of the 1st Schedule to the Electoral Act.

Section 138 of the Electoral Act, 2002 provides -

“138(1) If the Election Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, and if notice of appeal against that decision is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the determination of the appeal.

     (2) If the Election Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the expiration of the period of 21 days within

which an appeal may be brought.”

Paragraph 51 of the 1st Schedule to the Act provides thus:

“51.   Subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with the practice and procedure relating to appeals in the Court of Appeal or of the Supreme Court as the case may be regard being had to the need for urgency on electoral matters.”