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FEDERAL SUPREME COURT OF NIGERIA
22ND APRIL, 1960.
BEFORE THEIR LORDSHIPS
SIR ADETOKUNBO ADEMOLA, F.C.J. (Presided and Read the Judgment of the Court)
MYLES JOHN ABBOTT, F.J.
LIONEL BRETT, F.J.
EUGENE MASSANGO NGOH
ELECTION PETITION – Election petition presented out of time – Regulation 91(4) Elections Southern Cameroons House of Assembly Regulations, 1957 – Power of Court to grant extension of time.
ELECTION PETITION – Presentation of petition – How and when done – Supreme Court (Election Petitions) Rules 1951, section 5(1), Regulation 91(4) Elections Regulations.
ELECTION PETITION – Presentation of petition – Petitioner not bound to wait for order for Security for costs to be made before presenting petition – Regulation 91(4), 93(1) and (2) Southern Cameroons House of Assembly Regulations.
ADEMOLA, F.C.J. (Delivering the Judgment of the Court):
On the 24th March, 1960, we dismissed this appeal. We stated we shall give our reasons later for adopting this course. We now do so.
The appellant in the case was an unsuccessful party at an election held in the Southern Cameroons on the 24th January, 1959. On the 21st February, 1959, he filed a petition in the High Court of the Southern Cameroons praying that the election of the first respondent to the Southern Cameroons House of Assembly on the 24th January, 1959, be declared void.
It is not clear what the position of the second Respondent really is in the matter. The original petition filed was against the Electoral Officer as the second Respondent, but as he was then away on leave the second Respondent made an application by way of motion that he should be substituted for him. The application was duly granted, although it is clear that the second Respondent was never a party to, and was not concerned with, the election. The Appellant however did not object to the substitution in the Court below, and for that matter in this Court. The first Respondent himself, oddly enough, has not put in an appearance before us nor was he represented by Counsel.
Within the prescribed period of a month after the election, and indeed on the 21st February, 1959, the Petitioner (Appellant) in the Court below, in conformity with Regulation 93(1) and (2) of the Elections, Southern Cameroons House of Assembly, Regulations, 1957, filed an ex parte notice of motion for security for costs to be fixed. With this notice of motion a copy of the petition was attached, in accordance with the provisions of section 4(1) of the Supreme Court (Election Petitions) Rules 1951 (No. 3 of 1951). The motion was heard by the Judge at Buea on the 5th May, 1959, and the amount of the security was fixed.
It would appear that on some date which was not really ascertained, a number of copies of the petition were left in the Registry at Baca, and on the 11th May, 1959, the petitioner sought to pay fees for the presentation of these copies of the petition. On the 23rd May, 1959, the Crown Counsel, Mr. Thomas, acting for the second Respondent, sought to have the petition dismissed on the ground that the petition was presented out of time. He relied on Regulation 91(4) of the Election Regulations,
On the 1st June, 1959, Counsel for the Appellant filed a notice of motion asking for an extension of time within which to present the petition. The learned trial Judge heard the two motions and ruled that the petition having been presented on the 11th May, 1959, was out of time, and as he had no power under the law to grant an extension of time the petition would be dismissed. It is from this order of dismissal that the petitioner has appealed.
Counsel for the Appellant argued before us that since a copy of the petition was attached to the notice of motion for security for costs filed on the 21st February, 1959, it cannot be said that the petition had not been presented. On his attention being called to section 5 (1) Supreme Court (Election Petitions) Rules 1951 (No. 3 of 1951), Counsel agreed that the petition to be delivered to the Registrar for purposes of presentation must be a copy of the petition itself, a copy for each Respondent and seven other copies, and these are quite distinct from a copy to be filed with notice of motion for security for costs.
Counsel then submitted that as there was evidence that a number of copies of the petition were at one stage left in the Registry, the learned Judge should have considered that these were delivered in the Registry for presentation. Again, this argument is untenable since leaving a number of copies of a petition in the Registry cannot by any stretch of imagination be regarded as presenting the petition. Also, there was no evidence that as many copies as are required by law were left in the Registry. In any case, it was not until the 11th May, 1959, that an attempt was made to present the petition by paying the requisite fees.
Counsel further submitted that time for the presentation of a petition does not start to run until the motion for security for costs has been heard, and that in the present case, as the motion was heard on the 5th May, 1959, the period of a month within which to present the petition started to run from that day.
This submission must be rejected, since it is clear from Regulation 91 (4) that an election petition must be presented within one month after the date on which the election was held. It was not intended, from the Regulations and from the Rules, that the petitioner should wait for an order for security for costs to be made before he presents his petition. It appears he will be within his rights to present the petition the same day as he files his notice of motion for security for costs.
In the circumstances, the learned Judge was right to have dismissed the petition as being presented out of time, and therefore the appeal against his Order was dismissed.
ABBOTT, F.J.: I concur.
BRETT, F.J.: I concur.