DR. (MRS.) VIRGINIA ITAM ABANG V. HON. ERNEST OSANG EKI & ORS. (2015)

Background

This appeal arose from the Cross River State House of Assembly election for the Boki State Constituency, conducted on 11 April 2015. The appellant, Dr. (Mrs.) Virginia Itam Abang, contested the election on the platform of the Peoples Democratic Party and was declared the winner by the Independent National Electoral Commission, having scored 13,253 votes against the 8,354 votes credited to the first respondent, Hon. Ernest Osang Eki. Eki, together with the political party that sponsored him, challenged the result before the National and State Houses of Assembly Election Petition Tribunal sitting in Calabar.

The election petition alleged corrupt practices, substantial non-compliance with the Electoral Act and applicable guidelines, and that the appellant was not elected by a majority of lawful votes. The petitioners sought, among other reliefs, the nullification of the appellant’s return and a declaration that Eki was duly elected. In response, the appellant filed an application asking the tribunal to dismiss the petition as abandoned. Her contention was that the petitioners had failed to apply for the issuance of pre-hearing notice within the period prescribed by paragraph 18(1) of the First Schedule to the Electoral Act 2010, as amended.

The tribunal rejected the application on 11 August 2015, holding that the petitioners’ application for pre-hearing notice was sufficient and that the appellant’s motion was unmeritorious. The appellant then sought to appeal. Although the ruling was delivered on 11 August 2015, the notice of appeal was filed on 25 September 2015. The appellant relied on an earlier order of the Court of Appeal dated 21 September 2015, granting leave and enlarging the time within which to appeal.

Issues

1. Whether the appeal was competent when the notice of appeal was filed outside the 21-day period prescribed by paragraph 6 of the Court of Appeal Election Tribunal and Court Practice Directions 2011.
2. Whether the respondents could raise the competence and jurisdiction issue in their brief without formulating it from a ground of appeal or filing a separate preliminary objection.
3. Whether the tribunal’s treatment of the petitioners’ application for pre-hearing notice was correct.

Ratio Decidendi

The Court of Appeal held that election matters are sui generis and strictly time-bound. Paragraph 6 of the Election Tribunal and Court Practice Directions 2011 required an appellant to file a notice and grounds of appeal within 21 days from the decision appealed against. The prescribed period was described as sacrosanct and incapable of extension. Consequently, the notice of appeal filed on 25 September 2015, well outside the period calculated from 11 August 2015, was incompetent.

The court further held that its earlier order of 21 September 2015 purporting to grant leave and enlarge time had been made per incuriam. The order was issued without due regard to the binding authorities establishing that the time for filing an election appeal under the applicable Practice Directions could not be extended. An order made in that circumstance could not validate an appeal initiated contrary to the electoral procedure.

The court also reaffirmed that issues for determination ordinarily must arise from the grounds of appeal. However, jurisdiction is an important exception. A question concerning jurisdiction may be raised for the first time on appeal, without leave, and in any manner, provided it is capable of determination without the taking of further evidence. The respondents’ challenge to the competence of the appeal was therefore properly entertained and was considered first.

Court Findings

The court relied on the principle in Madukolu v. Nkemdilim that a court is competent only where the case is initiated by due process and all conditions precedent to the exercise of jurisdiction have been fulfilled. Since the notice of appeal was filed out of time, the appeal had not been validly initiated. The defect affected the foundation of the proceedings and could not be cured by consent, waiver or an erroneous procedural order.

The court rejected the appellant’s argument that the respondents’ presence when the extension order was made, and their failure to object at that stage, prevented them from challenging the appeal later. Parties cannot confer jurisdiction on a court by agreement, acquiescence or consent. Jurisdiction is conferred by the Constitution, statute and valid procedural rules, not by the conduct of litigants.

Having found that the notice of appeal was incompetent, the court considered it unnecessary to determine the substantive complaint concerning whether the petitioners’ application for pre-hearing notice complied with paragraph 18(1) of the First Schedule to the Electoral Act. Any consideration of that issue would have been academic because there was no valid appeal before the court.

Conclusion

The Court of Appeal held that the appeal was incompetent because the notice of appeal was filed outside the mandatory 21-day period. The prior order enlarging time was set aside as having been made per incuriam. The appeal was struck out, with no order as to costs; the report also records the outcome as an appeal dismissed.

Significance

This decision underscores the exceptional procedural regime governing Nigerian election litigation. It confirms that statutory and practice-direction time limits are designed to ensure the swift resolution of electoral disputes and cannot ordinarily be relaxed by the courts. It also illustrates the limits of judicial discretion in election matters: even where a court has previously granted an extension, that order cannot stand if it conflicts with binding Supreme Court authority and the specific electoral procedure. The case further confirms that jurisdictional objections may be raised at any stage and that procedural regularisation cannot breathe life into an appeal founded on an invalid notice of appeal.