In The Court of Appeal

(Benin Judicial Division)

On Tuesday, the 25th day of October, 2005

Suit No: CA/B/274M/2005

Before Their Lordships

 Between

 And

BULKACHUWA, J.C.A. (Delivering the Lead Ruling): By an application filed before this court on the 29/9/2005, the appellant/applicant prayed for the following reliefs: -

1. An order for extension of time within which the appellant/applicant can appeal against the order of Hon. Justice Z. A. Smith of Delta State High Court, Asaba, made on 3rd August, 2005, in suit No. AM/44/2005/M1.

2. An order deeming the notice of appeal already filed and served as being properly filed and served.

3. An order granting a departure from the rules of this court by allowing the appellant/applicant to compile the record of appeal and treating the bundle of documents already compiled and filed in this court and marked exhibit B as the record of appeal in this case.

4. An order accelerating the hearing of the substantive appeal by abridging the time within which the parties are to file their briefs of argument and setting the substantive appeal down for hearing.

And for such further or other orders as this court may deem fit to make in the circumstance.

The application is supported by an affidavit of 24 paragraphs deposed to by Kolawole Abiri a legal practitioner in the chambers of leading counsel to the appellant/applicant. It is also supported by three annextures which includes the proposed record of Appeal.

The 2nd respondent to this application raised no objection to the 1st - 3rd prayers in the motion, but opposed the 4th prayer in respect of which he filed a counter-affidavit of 4 paragraphs on the 17/10/2005.

The 1st respondent conceded to the application.

As all counsel for the respondents are not opposing prayers 1, 2 and 3 they are accordingly granted as prayed. The consequential orders in respect of these prayers will follow in due course of this ruling.

That leaves only prayer 4 which is that of abridging the time within which parties may file their respective briefs and an order of accelerated hearing of the substantive appeal.

In his submission on this application, Agbamu of learned Counsel for the applicant submitted that this appeal being in respect of an election petition the provision of the Practice Direction 2003 is applicable and provides the time frame of 3 days and two days for the filing of briefs by the appellant and the respondents respectively, pointing out the need for the determination of election petition as expeditiously as possible.

He cites Yusuf and Anor v. Ibekwe and 4 Others, In Re: FRA Williams (No.1) (2001) 9 NWLR (Pt. 718) 329 as authority that this court has the power to grant or order for an accelerated hearing of an appeal, particularly so as in the instant case which is an election petition matter. He urged us to grant prayer 4 as prayed.

Learned Senior Advocate Ohwovuriole of counsel for the respondent in opposing the application submits that the subject matter of this application or the substantive appeal is not one based on an election petition it is rather based on an application to enforce the 2nd respondent fundamental rights en rem. He argues that the Practice Direction is not applicable rather it is an ordinary appeal in which case it is the provision of Order 6 rule 4 of the Court of Appeal rules which grants the parties 60 days and 45 days for the appellant and the respondent within which to file their respective briefs which is applicable.

He points out that there are no exceptional circumstances in this application to warrant the abridgement of time sought by the applicant and urged us to refuse the application.

The question one poses, here, is whether the cause of action giving rise to this appeal is one which pertain as maintained by the applicant to an election petition or one based on the respondents' application for the enforcement of his fundamental rights en rem before the lower court, as contended by the 2nd respondent.

It is trite, that a cause of action is the circumstances or the entire set of circumstances that give rise to an enforceable claim. It is therefore said to be such fact or combination of facts which a party must prove to be entitled to a positive relief in respect of his claim. Without such fact or facts in place, the right of action would not arise. See Savage v. Uwaechia (1972) 2 SC 214; Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1; Hanseatic Int. Ltd. v. Usang (2002) 13 NWLR (Pt.784) 376.

The claim as filed by the plaintiff before the court is thus, the determining factor in what the cause of action is, and the court is only confined to the matter on which the parties joined issues.

In the instant case, the claim of the 2nd respondent before the lower court as per page 1 of the records is as follows:-

(1) Leave to enforce the applicant's fundamental right in terms of the reliefs sought in the statement in respect of this application.

(2) An order that leave to enforce the applicant's fundamental rights shall act as a stay of action restraining the 1st respondent from constituting a Governorship Election Tribunal for Delta State to try the issue of whether the applicant was the person convicted on 28th September, 1995, in case No. CR/81/95 by the upper Area Court, Bwari, or restraining any Tribunal so constituted by the 1st respondent from sitting to try the said issue pending the determination of the application for enforcement of the applicant's fundamental right.

(3) An order for leave the serve the applicant's motion on notice for enforcement of fundamental right on the 1st respondent in the federal Capital Territory, Abuja.

(4) ...

Of relevance to this application are also the following paragraph sin support of the ex parte application.

(24) in the gubernatorial election held throughout the country on 19th April, 2003, the applicant contested the gubernatorial election for Delta State on the platform of the Peoples Democratic Party (PDD).

(25) The applicant was duly cleared by INEC and the law enforcement agencies that screened the applicant's particulars also cleared same and he was found to be without blemish and qualified under the 1999 Constitution to contest the gubernatorial election for Delta State.

(26) The 2nd respondent did not complain against the clearance given by INEC to the applicant both before and after the election was conducted on 19th April, 2003.

(27) The applicant contested the election and scored the  majority of lawful votes cast during the elections of 19th April, 2003, for the Governorship of Delta State and was duly returned as the winner.

(28) the 2nd respondent who contested the election on the platform of the Alliance for Democracy lost and thereafter, filed a petition No. GET/DT/1/2003 dated 16th may, 2003 and raised 2 grounds challenging the applicant's election as the Governor of Delta State.

(29) The first ground of the petition alleged disqualification of the applicant based specifically on an allegation that the applicant was convicted by the Upper Area Court, Bwari FCT, Abuja, in case No. CR/81/95 for the offences of negligent conduct and criminal breach of trust ...

Thereafter, followed the averment pertaining to the disqualification and the relief sought.

"The petitioner therefore prays that:

(a) It be determined that the 1st respondent was unqualified to contest the 19th April, 2003 Governorship Election for Delta State for reasons of his being an ex-convict and so was not duly elected or returned as the Governor of Delta State and that the petitioner was duly elected and ought to have been returned.

(31) The applicant filed a preliminary objection challenging the competence of the petition before the Election Tribunal sitting in Asaba, in view of the pendency of the same issue before the Supreme court.

(32) Following argument by counsel for the respective parties, the tribunal struck out the 2nd respondent petition on 25th June, 2003.

(33) The 2nd respondent being dissatisfied with the decision of the election tribunal appealed to the Court of Appeal, Benin Judicial Division and on 30th September, 2003, the court allowed the appeal in part.

(34) In its judgment, dismissed the appeal challenging the decision by the tribunal that irregularities was not a ground for nullifying an election result, while the ground of alleged disqualification in the petition, outlined in paragraph 29 above, was remitted for retrial by another tribunal to be reconstituted. 

(37) When the Election Tribunal was reconstituted to try the sole issue remitted, the applicant filed an application praying firstly that paragraphs 3(i) - (vii) and 10(a) of the petition raising the question whether the applicant was the person convicted by the Upper Area Court, Bwari in CR/81/95 were incompetent. Secondly, the applicant prayed the tribunal to dismiss the petition for lacking in reasonable cause of action.

(38) Urging the tribunal to dismiss the petition, the applicant argued that the judgment which declared that the applicant was not convicted in CR/81/95, were judgment on the status of the applicant and therefore judgment in rem binding on the whole world including the 2nd respondent.

(39) In a considered ruling, the reconstituted tribunal upheld the applicant's prayers and struck out paragraph 3(i) - (vii) of the petition before dismissing the petition for lacking in reasonable cause of action.

(40) The 2nd respondent being dissatisfied with the ruling of the reconstituted tribunal, appealed to the Court of Appeal, Benin Division which heard the appeal and delivered its judgment on 13th July, 2005 ...

(41) In its judgment, Court of Appeal, Benin division held that because the Court of Appeal had earlier ordered a retrial of the petition on the ground of disqualification, the applicant was estopped from challenging the same ground regardless of the subsisting judgment of the Court of Appeal, Abuja, affirming the innocence of the applicant between the time when the court made the order for retrial and the time when the tribunal was reconstituted. 

(42) The court held further that the judgment of the High Court of the FCT and the Court of Appeal declaring the status of the applicant as a non convict were not judgments in rem and therefore, not binding on the world including the 1st respondent who in fact, delivered the judgment affirming the innocence of the applicant.

(43) The Court of Appeal then ordered that the petition be remitted for retrial on the sole issue of whether the applicant was the person convicted by the Upper Area Court, Bwari in case No. CR/81/95 for the offences of negligent conduct and criminal breach of trust on 28th September, 1995.

(44) The 1st respondent is constituting a Governorship Election Tribunal for the sole purpose of retrying the issue of whether the applicant was the person convicted by Upper Area Court, Bwari, FCT for the offences of negligent conduct and criminal breach of trust in case No. CR/8195 on 28th September, 1995, regardless of the subsisting judgment of the Court of Appeal which affirmed the judgment of the High Court of the FCT that the applicant was not the person so convicted."

In effect, the foregoing averments are the statement of facts giving rise to the claim of the respondent before the lower court and the subject matter of this application and by extension of the substantive appeal.

In the determination of an interlocutory application as in the instant case, a court is not expected to delve into the substantive matter before it.I will therefore avoid that, suffice to say that the statement of fact as averred above and the relief sought before the lower court relates, no matter which way it is coined, to the prevention of the 1st respondent from reconstituting a gubernatorial election tribunal to try the sole issue in the 1st respondent's petition as ordered by the court of Appeal, Benin Division as per his judgment of 13th July, 2005.

In effect, the cause of action and the subject matter of the claim before the lower court pertains to an election petition.

We all know, and the courts have with regards to the provision of paragraph 51 of the 1st Schedule to the Electoral Act, 2002 which provides:-

"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."

That election appeals are special and sui generis in nature and have to be determined expeditiously. They cannot be considered identical with civil proceedings, the ordinary rules of court in respect of civil proceeding do not therefore apply to them. See Balogun v. Odumosu (1999) 2 NWLR (Pt. 592) 590; and Obasanya v. Babafemi (2000) 15 NWLR (Pt. 689) 1.

In consequence of the above, I overrule the objection and allow the application in respect of prayer 4 and make the following consequential order.

(1) Time is extended to today within which the applicant can appeal against the order of Hon. Justice Z. A. Smith of Delta State High Court, Asaba, made on 3rd August, 2005, in suit No. AM/44/2005/M1.

(2) The notice and grounds of appeal filed on 19/9/2005, before the lower court is deemed to have been properly filed and served.

(3) An order for departure from the rules of court is hereby made, allowing appeal in this matter, this is without prejudice to the 1st and 2nd respondents filing any supplementary document they may consider necessary for the just determination of this appeal within 5 days from today.

(4) Time is abridged within the provisions of the Practice Direction 2003 within which parties may file their respective briefs. Appellant is to file his brief within 3 days from today. Each set of respondent to file brief within 2 days from service of the appellant's brief.

NGWUTA, J.C.A.: I agree

ABBA AJI, J.C.A.: I have had the privilege of a preview of the ruling just delivered by my learned brother, Z.A. Bulkachuwa, JCA.

I agree with the reasons as well as the conclusions therein, which I hereby adopt as mine.

For the same reasons, I too grant the application as prayed and endorsed the consequential order made, including order as to costs.

Application granted.

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