CASE TITLE: MODIBBO v. APC & ORS (2023) LPELR-59511(CA)
JUDGMENT DATE: 12TH JANUARY, 2023
- MONICA BOLNA’AN DONGBAN-MENSEM, JCA
- UGOCHUKWU ANTHONY OGAKWU, JCA
- DANLAMI ZAMA SENCHI, JCA
PRACTICE AREA: ELECTORAL MATTERS
At the Court of Appeal, the Applicant filed a motion on notice seeking for: “an order of the Honourable Court extending the time within which the Appellant/Applicant will compile and transmit the Additional Record of Appeal in APPEAL NO: CA/ABJ/CV/1369/2022; BETWEEN: ISMAIL MUSA MODIBBO V. ALL PROGRESSIVES CONGRESS (APC) & 2 ORS. IN SUIT NO: FHC/ABJ/CS/831/2022 to the Court of Appeal, an order of the Honourable Court deeming the already transmitted Record of Appeal to the Court as duly and properly compiled and transmitted and for such other or further order(s) that the Honourable Court may deem fit to make in the circumstances of the case.”
The application was inter alia premised on the ground that the registry of the trial Court inadvertently omitted vital documents i.e. Preliminary Objection document filed on the 10th of August, 2022 from the compiled and transmitted Record of Appeal.
The motion on notice was supported by an affidavit, exhibits and a written address.
The Respondents did not file any counter-affidavit to challenge the motion.
ISSUES FOR DETERMINATION:
The application was determined on its merit
The Appellant/Applicant in arguing his case cited and relied on the ruling of the Court in CA/ABJ/CV/1139/2022, BETWEEN ALL PROGRESSIVES CONGRESS (APC) & ANOR VS DR. UCHECHUKWU SAMPSON OGAH & 3 ORS delivered on 12th December, 2022 per S. J. Adah, JCA at the Abuja Division wherein the Appellant/Applicant was granted leave to compile and transmit additional Records out of time. The Appellant/Applicant therefore prayed that the application should be granted in the interest of justice.
The Respondents did not file any Counter-Affidavit to challenge the sought. However, the 2nd Respondent referred the Court to its decision from the Akure Division in Appeal No: CA/AK/250/2022, BETWEEN MR. ALEXANDER AJIKE V. ALL PROGRESSIVES CONGRESS & 2 ORS., delivered on 13th December, 2022.
The Appellant/Applicant in his reply stated that the facts in Appeal No: CA/AK/250/2022 has to do with filing of Brief of Argument are not on all fours with facts in the instant Application which has to do with compilation and transmission of Additional Records and are therefore distinguishable.
The application was dismissed for lacking in merit.
ELECTORAL MATTERS – PRE-ELECTION MATTERS: Whether additional records of appeal can be compiled and transmitted in pre-election matters
“In MAKU V. SULE (2022) 3 NWLR (PT. 1817) 231 @ 258, the Apex Court held that the specific provisions of the Practice Directions exclude general provisions of the Court of Appeal Rules. It is the Election Judicial Proceedings Practice Directions, 2022 that specially and specifically makes provisions to regulate the hearing of Pre-Election Appeals. It must therefore prevail over Order 8, Rule 6 (2) of the Court of Appeal Rules, 2021 which provides for transmission of Additional Records of Appeal. The Special provision in Paragraph 9 of the Election Judicial Proceedings Practice Directions, 2022 makes no provision for transmission of Additional Records. It is therefore interpreted as taking away the effect of the general provision of transmitting Additional Record of Appeal under the Court of Appeal Rules, 2021. In other words, there is no basis on which the Applicant can be allowed to bring in Additional Records of Appeal especially when there are sufficient materials in the Record of Appeal on which this Court can decisively dispose of the real issue in controversy between the Parties. See MAKU V. SULE (Supra) @ 258- 259.” Per DONGBAN-MENSEM, J.C.A.