TONYE PATRICK COLE & ORS v. IBRAHIM UMAH & ORS
(2018)LCN/12279(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of December, 2018
CA/PH/281M/2018(R)
RATIO
ELECTION MATTER: ON ISSUE OF EXTENSION OF TIME
“This application has been brought outside the 14 days. There is no application for extension of time. We cannot even enlarge time being an election matter where time is of the essence – ANPP VS. GONI (2012) 7 NWLR (Pt. 1298) 147. The preliminary objection is sustained. The application is struck out.” PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES:
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
TONYE PATRICK COLE & 49 ORS – Appellant(s)
AND
IBRAHIM UMAH AND 22 ORS
-1st Set of Respondents
AND
ALL PROGRESSIVE CONGRESS (APC)
-2nd set of Respondents – Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Lead Ruling):
This is an application filed by the applicants for an Order granting leave to the applicants to appeal against the judgment of the Rivers State High Court in Suit No. BHC/78/2018 IBRAHIM UMAH & 22 ORS Vs. ALL PROGRESSIVE CONGRESS and also against the Interlocutory decisions of the said High Court made on 11/5/18, 30/5/18, 2/8/18 and 10/10/18. It is also for extension of time for leave to appeal against the Interlocutory decision of the said High Court, leave to appeal against the decision, leave to argue fresh issues of law and facts and extension of time to appeal against the Interlocutory decisions made on the stated dates.
The parties have filed affidavits and counter affidavits, and have filed written address and Replies. We have considered all processes.
Learned counsel has made the point mainly in a Preliminary Objection that the subject matter is an election issue, a pre-election and the applicants ought to have applied within 14 days of the decision. Since they have not, the application is not competent.
Learned counsel for the applicants has countered to say that the issue is not a pre-election issue but an issue of local ward congresses and election into party offices and so, they are not caught by any time bar. They referred to Section 2 (14) (a) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration Act No 21) of 2017 on definition of pre-election.
We have looked at paragraphs 11, 12 and 13 of the affidavits in support of the application. Therein, it is deposed to, that APC held its primaries throughout Nigeria as required by INEC for selection of candidates to the Houses of Assembly, House of Representatives senate, governorship and presidential Elections. That it conducted primaries in Rivers State in which the deponent and other applicants participated and were nominated by the APC to INEC as candidates for the electable offices for 2019 general election.
This clearly shows the whole affair pertains to nomination for candidates for the general elections of 2019. This is a pre-election matter, no two ways about it. Since that is the position, Section 285 (II) of the Constitution requires such application to be made within 14 days from the date of the judgment sought to be appealed from. This application has been brought outside the 14 days. There is no application for extension of time. We cannot even enlarge time being an election matter where time is of the essence – ANPP VS. GONI (2012) 7 NWLR (Pt. 1298) 147. The preliminary objection is sustained. The application is struck out.
Furthermore, on the merit, it is fundamental, that a party seeking leave to appeal where he did not participate at the lower Court, to state why he did not participate i.e. when he became aware of the proceedings at the lower Court. There is no deposition by the applicants as to when they became aware of the proceedings at the trial Court. That will then inform this Court on the merit of the application. That material has not been supplied to this Court, and it is fatal to the application. If the applicants complained that the trial judge did not join them after being aware of their interest, why did they not apply themselves to be joined?
The application lacks merit and it is hereby dismissed on the merit.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I agree.
Appearances:
E. N Ebete For Appellant(s)
K. P Luke with him, S.S Okin, L. T Mieyebo for the 1st set of respondents.
Prince O. F Azuadah with him, L. A Ohajunwa for the 2nd set of respondents For Respondent(s)
