Whether a Notice of Appeal Misstating the Date of Judgment Appealed Against in a Pre-Election Matter Can be Amended after the Time Allowed for Filing the Appeal Has Expired?

CASE TITLE: ADC v. INEC (2022) LPELR-59080(CA)

JUDGMENT DATE: 7^TH DECEMBER, 2022

PRACTICE AREA: ELECTORAL MATTERS

LEAD JUDGMENT: UGOCHUKWU ANTHONY OGAKWU, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Pre-Electoral Matters.

FACTS:

This appeal is against the judgment of the Federal High Court in Suit No. FHC/ABJ/CS/1074/2022 delivered on 29th September 2022 by Obiora Atuegwu Egwuatu, J.

The Appellant, one of the registered political parties in Nigeria was uncomfortable with the proviso to Section 65 (1) of the Electoral Act, 2022 on the power of INEC to review the declaration and return of candidates where the Commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election.

The Appellant contended that the stipulation in the said proviso is inconsistent with the roles, duties and functions of the Respondent and a usurpation of the powers of the judiciary. In consequence, the Appellant commenced a suit by originating summons seeking declaratory reliefs.

​The processes were served on the Respondent, but it neither filed any processes nor did it appear before the trial Court to defend the action. The trial Court heard the originating summons on the Appellant’s processes and dismissed the action. Dissatisfied, the Appellant lodged an appeal at the Court of Appeal.

The Appellant did not however file its brief within the period of seven (7) days stipulated by paragraph 10 of the Election Judicial Proceedings Practice Directions, 2022. The brief was filed on 31st October 2022, about fifteen (15) days after the records of appeal were served on it. The Appellant then filed an application for an extension of time to file its brief. At the hearing of the said application for an extension of time, the Court, suo motu, raised the issue of whether time could be extended in this pre-election matter. The Appellant’s counsel asserted that time could be extended and undertook to supply authorities to satisfy the Court in this regard.

In view of the fact that the pre-election appeal was time-bound, the Court granted the application so that the time for the Respondent to file its processes would begin to run since the Respondent was not present in Court at the proceedings. The Appellant’s brief filed on 31st October 2022 was then deemed as properly filed, subject to the Appellant satisfying the Court that it had the jurisdictional competence to extend the time for filing of the Appellant’s Brief.

ISSUES:

The Court of Appeal considered the competence of the appeal.

DECISION/HELD:

On the whole, the appeal was struck out for being incompetent.

RATIOS:

• APPEAL – NOTICE(S) OF APPEAL – Importance of a notice of appeal; effect of a defect in the same
• ELECTORAL MATTERS – PRE-ELECTION MATTERS – Whether a Notice of Appeal misstating the date of judgment appealed against in a pre-election matter can be amended after the time allowed for filing the appeal has expired
• ELECTORAL MATTERS – PRE-ELECTION MATTERS – Whether time can be extended for filing of briefs in pre-election matters; effect of failure to file Appellant brief within time in an appeal against a pre-election matter