Whether the Compilation and Transmission of Record of Appeal in an Election Petition Proceedings is the Primary Duty of the Secretary of the Tribunal

CASE TITLE: IBRAHIM v. INEC & ORS (2022) LPELR-58822(CA)

JUDGMENT DATE: 4^TH NOVEMBER, 2022

PRACTICE AREA: ELECTORAL MATTERS

LEAD JUDGMENT: ITA GEORGE MBABA, J.C.A. 

SUMMARY OF JUDGMENT: 

INTRODUCTION: 

This is a ruling on an application to strike out an appeal.

FACTS: 

The appellant filed the appeal on 16th September, 2022 against the Judgment of the Federal High Court Kano, in Suit No. FHC/KN/CS/157/2022, delivered on 5th September, 2022 by Hon. Justice M.N. Yunusa, wherein the learned trial Judge struck out the Suit, for having been filed in the Kano Division of the Federal High Court (FHC), not in Abuja Division; (that) it was filed in violation of the National Judicial Council (NJC) Policy Direction; thus not initiated by due process, (that) the trial Court lacked jurisdiction to entertain the Suit, and cannot determine or pronounce on the merit of the case.

​At the trial Court, Appellant, as Plaintiff, had filed a Pre-election Suit, challenging the nomination/selection of the 3rd Respondent as the flagbearer of the 2nd Respondent for the House of Representatives election, representing Kano Municipal Federal Constituency in the forthcoming 2023 general elections. Appellant had obtained form, filled same, was screened and cleared to contest the primary election. He said that on the date fixed from the primary election, he went to participate in the election, but his name was wrongly excluded from the election; that he complained to the 2nd Respondent and requested for a fresh election, in line with the Electoral Ac and other extant laws, but was ignored, hence this Suit.

After hearing the parties and perusing the processes filed by them, including the neutral process filed by the 1st Respondent (INEC), the learned trial Court, struck out the Suit, for the reasons, stated above.

Appellant’s Notice of Appeal was filed on 15/9/2022, as per the endorsement on Page 683 of the Records of Appeal, which shows the Cashiers Stamp – PAID, on the process. Appellant transmitted the Records of Appeal to this Court on 24/10/2022, and filed his Brief of Argument on 25/10/2022.

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When the Appeal came up on 28/10/2022, for hearing, the 2nd Respondent’s Counsel, A.L. Yusuf Esq, informed the Court that they were served with the Appellant’s Brief on the previous day – 27/10/2022, and so they were still within time to file the 2nd Respondent’s Brief. Counsel, however, raised a preliminary objection, orally, challenging the competence of the Appeal, on account of what he called, incompetent Records of Appeal, and urged us to strike out the Appeal.

ISSUES FOR DETERMINATION:

The Court of Appeal determined the application on a sole issue which is:

“Will it be proper to strike out this Appeal, because the Records of Appeal, compiled and transmitted to this Court by the Registrar of the Lower Court, was done outside the time stipulated by the Practice Direction of this Court?”

DECISION/HELD: 

In conclusion, the Court of Appeal dismissed the application.

RATIOS:

• ELECTION PETITION – ELECTION PETITION PROCEEDINGS – Whether the compilation and transmission of record of appeal in an election petition proceedings is the primary duty of the Secretary of the Tribunal and not the appellant; effect of failure of the Secretary to do so within time
• ELECTORAL MATTERS – PRE-ELECTION MATTERS – Whether an application to strike out an appeal in a pre-election petition matter can be made orally
• PRACTICE AND PROCEDURE – PRACTICE DIRECTION – Whether the provisions of a practice direction must be strictly adhered to where such adherence will defeat substantial justice