ALL PROGRESSIVE CONGRESS v. IBRAHIM UMAH & ORS
(2019)LCN/12523(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of January, 2019
CA/PH/297/18
RATIO
INTERPRETATION: THE DOCTRINE OF STARE DECISIS
“Stare decisis, a Latin expression, means standing by things decided or to quote from the apt definition in Black’s Law Dictionary (Eighth Edition) at page 1443: ‘The doctrine of precedent, under which it is necessary for a Court to follow earlier judicial decisions when the same points arise again in litigation'”. The doctrine of stare decisis is sacrosanct and must advisably be maintained. The essence is to retain consistency in the decisions of our Courts and this would certainly avoid conflicting decisions. In the present case, if we tow the line of argument of the Appellant/Respondent’s learned counsel, this Court would have given a divergent and conflicting decision. It must not and would not be done, no matter how tempting. We are by the above doctrine enjoined to follow the earlier judicial decision when the same point that has been decided earlier arises again, it ensures consistency and certainty in the state of the law and its application. See, the Apex Court’s decision inMAILANTARKI VS. TONGO & ORS (2017) LPELR 42467 (SC) PP. 17 – 18, PARAS. D & A, per Eko, JSC where his lordship explained the nature of the doctrine of judicial precedent/stare decisis and the necessity to abide by or adhere to decided cases.” PER CHIDI NWAOMA UWA, J.C.A.
JURISDICTION: AT WHAT STAGE CAN THE ISSUE OF JURISDICTION BE RAISED
“It is noteworthy that a challenge to the competence of this appeal touches on jurisdiction of the Court and could be raised at any time and any stage of the matter, even at the Supreme Court and in any form with or without a preliminary objection or motion. It could be raised suo motu without formal application, it could be raised orally even by the Court. Moreso, this is a matter pertaining to election, which is sui generis, also time is of the essence. See, HARUNA ALHAJI GALADIMA VS. THE STATE (2017) LPELR 43469 (SC) PP. 3 – 4, PARAS. G – D, GENERAL ELECTRIC COMPANY VS. HARRY AYOADE AKANDE & ORS (2010) 12 (PT. 2) SCM 96; LAMIDI RABIU VS. TOLA ADEBAJO (2012) 6 SCM 201, UDENWA & ANOR VS. UZODINMA & ANOR (2012) LPELR 22283 (SC), RABIU VS. ADEBAJO (2012) LPELR 9709 (SC). The essence of the challenge by a preliminary objection is to foreclose the hearing of the appeal, it is therefore best to take it first and resolve same to save valuable time. See, YARO VS. AREWA CONSTRUCTION & ORS (2007) LPELR 3516 (SC) and OKAFOR VS. NWUDE (1999) 7 S.C. (PT. 1) 106.” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
ALL PROGRESSIVE CONGRESS Appellant(s)
AND
1. IBRAHIM UMAH
2. DAVID NDAH
3. PRINCE MORRIS
4. KUDEM BALE
5. OTOKIM JACK
6. OMUBOYE BRIGGS
7. ABELEMI SATURDAY
8. AMARATO MARK
9. JOHNSON EKE
10. SUNDAY CLINTON
11. AMADI STEPHEN
12. AYITEH IKECHI
13. ORJI BARIDA
14. HORACE OBED
15. WONAH GODWIN A.
16. SUNDAY ELLAH
17. JONATHAN NKPOME
18. FABIAN THEODORE DAGOGO
19. NWOKE OKWUDIRI
20. JOHN JAJA TUNOTAMUNO
21. ZORMA BARIDURA F.
22. MENEMU FRIDAY TEDDY
23. NDUKWU ZEREUWA Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment):
The appeal is against the Ruling of the Rivers State High Court presided over by C. Nwogu, J, delivered on 30th day of May, 2018 in Suit No. BHC/78/2018, between Ibrahim Umah & 22 Ors vs. All Progressives Congress.
The background facts are that the Respondents as claimants at the trial Court filed an originating summons on the 8th day of May, 2018 seeking the determination of the following questions:
(1) Whether having made requisite payment, the applicants are not entitled to be given nomination forms to participate in the ward congress of the Respondent?
(2) If the answer to 1 is yes, whether the exclusion of the applicants from the ward congress purportedly held on 5/5/2018 by the Respondent is valid and constitutional.
(3) Having regards to the provisions of Section 20(1) of the APC Constitution, 2014 (as amended), whether it is proper to hold L.G.A. congress to the exclusion of the Applicants.?
The Claimants/Respondents, consequently, sought the following reliefs:
(1) A Declaration that the applicants are entitled to participate in the APC Ward Congress having paid the requisite nomination fees.
(2) A Declaration that the exclusion of the Appellants from participating in the Ward Congress is unconstitutional, null and void.
(3) A Declaration that the purported Ward congress held by APC on May 5, 2018 is null, void and no effect whatsoever.
(4) A Perpetual Order restraining APC from conducting any LGA Congress or further congresses in River State based on the Ward Congress election purportedly conducted on May 5, 2018.
(5) A Perpetual Order restraining APC from recognizing or accepting any Result of Ward election whatever arising from the purported Ward Congress of May 5, 2018.
(6) And for such Order(s) as the Honourable Court may deem fit to make in the circumstance.
The Respondents thereafter filed a motion on notice for interlocutory injunction on 8th May, 2018 allegedly not served on the Appellant as Defendant. It was the contention of the learned counsel to the Appellant that the learned counsel Chieme Chinweikpe Azubuike Esq. who appeared for the Appellant was not briefed. On becoming aware of the proceedings of 10th May, 2018.
Tuduru Ede Esq. appeared in protest for the Appellant when the matter came up on 11th May, 2018 contending that the Appellant had neither been served with (i) the originating processes, (ii) application for interlocutory injunction and (iii) hearing notice, nor had it briefed ANY counsel to appear on its behalf until the evening of 10th May, 2018, when he was briefed by the Defendant/Appellant. The trial Court proceeded to deliver its Ruling on the application for interlocutory injunction on the said 11th day of May, 2018 and granted interlocutory injunctive orders against the interest of the Appellant.
The Appellant was unhappy with the injunctive orders and filed a motion on Notice on 15th May, 2018 seeking to set aside the orders of injunction granted by the Court challenging the lower Court’s jurisdiction to entertain the matter and granting the injunctive orders. Before the motion of 15/5/18 was fixed for hearing, the Appellant in compliance with the order of the trial Court abandoned the said congress election result of 5th May, 2018 and conducted another congress election on 12th May, 2018, 19th May, 2018, 20th May, 2018 and 21st May, 2018.
The Appellant thereafter filed a motion on notice on the 25th day of May, 2018 seeking to stay the proceedings of the lower Court pending the hearing and determination of the Appellant’s motion for stay of proceedings in CA/PH/198/2018, filed on 25th May, 2018 at the Court of Appeal, Port Harcourt Judicial Division. On 30th May, 2018, the Appellant through its counsel Tuduru Ede Esq. drew the attention of the lower Court to the afore stated motion on Notice of the 15th day of May, 2018 and the motion on Notice of 25th day of May, 2018 seeking to stay the proceedings of the lower Court pending the hearing and determination of the appellant’s motion for stay of proceedings in CA/PH/198/2018 filed on 25th May, 2018 at the Court of Appeal, Port Harcourt Judicial Division.
The lower Court proceeded to hear the Respondents’ motion on notice for mandatory orders, delivered its ruling granting an order of mandatory injunction and adjourned the matter to the 26th day of June, 2018 for the hearing of the originating summons pending before the Court.
Dissatisfied with the Ruling of the lower Court, the Appellant appealed against same on six(6) grounds of appeal filed on 12th June, 2018. Six (6) issues were distilled for the determination of the appeal thus:
1. WHETHER THE TRIAL COURT HAD JURISDICTION TO ENTERTAIN THE SUBJECT MATTER OF THIS SUIT? AND IF NOT, WHETHER THE TRIAL COURT ACTED WITHOUT JURISDICTION IN GRANTING THE ORDER(S) OF INTERLOCUTORY INJUNCTION IN FAVOUR OF THE RESPONDENTS HEREIN? (GROUND 1)
2. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES, WHETHER THERE WAS PROPER SERVICE OF THE ORIGINATING PROCESSES TO CLOTHE THE TRIAL COURT WITH THE REQUISITE JURISDICTION TO ENTERTAIN THE SUIT? (GROUND 2)
3. WHETHER IN VIEW OF THE NATURE OF THE CLAIMS AND THE RELIEFS SOUGHT IN THIS SUIT, THE TRIAL COURT WAS RIGHT, WHEN IT ASSUMED JURISDICTION IN THE ABSENCE OF NECESSARY PARTIES WITH VESTED INTEREST OT THIS SUIT? (GROUND 3)
4. WHETHER IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT WAS RIGHT WHEN IT GRANTED INJUNCTIVE ORDERS AGAINST THE APPELLANT, WITHOUT FIRST RESOLVING THE QUESTION OF LEGAL REPRESENTATION? (GROUND 4)
5. WHETHER THE TRIAL COURT WAS RIGHT WHEN IT FAILED TO FIRST RESOLVE THE QUESTION REGARDING THE CHALLENGE TO ITS JURISDICTION BEFORE TAKING ANY FURTHER STEP IN THE PROCEEDINGS AND/OR MAKING THE INJUNCTIVE ORDERS OF 30TH MAY, 2018? (GROUND 5)
6. WHETHER IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT WAS RIGHT WHEN IT GRANTED INJUNCTIVE ORDERS AGAINST THE APPELLANT, WITHOUT FIRST RESOLVING THE APPLICATION SEEKING FOR STAY OF PROCEEDINGS ONE WAY OR THE OTHER (GROUND 6)
The Respondents on their part distilled four(4) issues for the determination of the appeal thus:
1. Whether the trial Court had jurisdiction to determine Suit No. BHC/78/2018?
2. Whether there was proper service of the originating process in Suit No. BHC/78/2018 on the Appellant herein?
3. Whether the trial Court was right when it granted injunctive orders against the Appellant?
4. Whether the injunctive Orders of the trial Court was obtained with due process of Law?
The Respondents as Applicants also filed a motion on Notice on 15/1/19 praying for the following reliefs:
1. AN ORDER striking out Appeal No. CA/PH/297/2018 having become statute barred by effluxion of time and academic.
2. Such further Orders as the Honourable Court may deem fit to make in the circumstances.
The grounds upon which the application was brought are as follows:
1. In unreported Ruling delivered by the Court of Appeal, Port Harcourt Division on December 12, 2018 in Appeal No. CA/PH/281M/2018 Tonye Patrick Cole & others vs. Ibrahim Umah & 22 others the Court of Appeal held that Suit No. BHC/78/2018 – Ibrahim Umah & 22 others vs. All Progressives Congress is a pre-election matter.
2. This Appeal No. CA/PH/297/2018 is against a decision of May 30, 2018 in Suit No. BHC/78/2018, a pre-election matter.
3. The Notice of Appeal in this Appeal was filed on June 12, 2018.
4. By virtue of the provisions of Section 285 (12), Constitution of the Federal Republic of Nigeria 1999 (as amended by the 4th Alteration Act, No. 21, 2017) this Appeal ?shall be heard and dispose of within 60 days from the date of filing the Appeal.
5. The 60 days stipulated for the hearing and disposal of this Appeal expired on August 11, 2018.
6. This Appeal is now statute barred and has become a mere academic exercise.
7. In ANPP VS. GONI (2012) 7 NWLR (PT. 1293) 147 at 182 PARAGRAPHS F – G, the Supreme Court per Onnoghen, JSC (now CJN) held:
‘It has been held by this Court in a number of cases including consolidated Appeal Nos. SC.141/2011: SC.266/2011; SC.267/2011, SC.282/2011; SC.356/2011 and SC.357/2011: BRIG. GEN. MOHAMMED BUBA MARWA & ORS VS. ADM. MURTALA NYAKO & ORS. delivered on 27th January, 2012 reported in (2012) 6 NWLR (PT. 1296) 199 that the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within the time so fixed, it lapses as the Court is thereby robbed of the jurisdiction to continue to entertain the matter.’
8. Pursuant to the decisions in PLATEAU STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR (PART 967) 346 and NWOCHA VS. GOV. OF ANAMBRA STATE (1984) 1 SCNLR 634, Appeal No. CA/PH/297/2018 has become academic; the suit no longer has live issues for determination and is liable to be struck out.
There was no counter Affidavit filed by the Respondents. The application was taken first before the hearing of the substantive appeal on agreement by learned counsel for parties.
In arguing the motion, the learned counsel to the Respondents/Applicants H.A. Bello Esq. appearing with K.P. Luke Esq, S.S. Okiri, L.T. Mieyebo and U.B. Opuwari Esq submitted that his application is predicated on eight (8) grounds supported by an affidavit of Nine (9) paragraphs to which two (2) Rulings of this Court of 12/12/18 were annexed. We were urged to strike out the appeal on a pre-election matter that has become statute barred.
It was contended that by the Ruling of this Court of 12th December, 2018, in Appeal No. CA/PH/281M/18, Tonye Patrick Cole & Others vs. Ibrahim Umah & 22 others, this Court held that the Suit Number BHC/78/2018 Ibrahim Umah & 22 Ors vs. APC is a pre-election matter. It was submitted that the present appeal is against the Ruling of 30th May, 2018 emanating from the same suit which this Court has adjudged to be a pre-election matter which falls within the provisions of Section 285 (12) of the 1999 Constitution of the Federal Republic of Nigeria, as amended (hereafter referred to as the Constitution) It was submitted that the Notice of Appeal was filed on 12th June, 2018 and that the 60 days stipulated by Section 285 (12) as amended used the word: ‘shall’, which means that the time to appeal and dispose of same expired on 11th August, 2018. See, ANPP VS. GONI (2012) 7 NWLR (PT. 1298) PAGE 147, at 182, PARAGRAPH G, also MARWA VS. NYAKO (2012) 6 NWLR (PT. 1296) PAGE 199. We were urged to strike out the appeal which was argued to have expired on 11th August, 2018 and that this Court is no longer seized with the jurisdiction to continue to hear this matter.
In response, the learned counsel to the Respondents Tuduru Ede Esq with E.N. Ebete, C.W. Jerome, Prince O.S.F. Azundah, J.C. Williams and L.A. Ohajinwa Esq who did not file a counter affidavit responded on points of law and submitted that the preliminary objection is misconceived, unfounded and should be dismissed on the following grounds: (1). It has been brought in disobedience and non compliance with Order 10 Rules 1 and 3 of the Court of Appeal Rules, 2016, because it was not brought three days before the hearing of the appeal. It was argued that Rules of Court are meant to be obeyed.
See, LAWANSON and OTHERS VS. AKUNNA and OTHERS (2016) LPELR 41303 (CA) PP. 10 – 11, PARAS. C ? F. (2). Learned counsel referred to pages 1 – 6 of the printed records of Appeal to submit that the claim of the Respondents, who were claimants at the lower Court, particularly pages 1 and 2 and the supporting affidavit has nothing to do with pre-election matter and that the issues touch on ward congress positions to elect ward officers, which has nothing to do with the primaries.
It was further argued that the issue of jurisdiction is determined by the nature of the claim. Further, that the reliefs sought do not come within Section 285(11) read with Section 285(14) of the Constitution as well as Section 285(9). It was argued that the appeal is competent and not statute barred as this is not a pre-election matter. See, GAFAR VS. GOVERNOR OF KWARA STATE, 4 CONSTITUTIONAL LAW CLASSICUS at PAGE 458.
Further, that the reliance by the Applicants on Suit No. CA/PH/281M/18 does not benefit them in that this Court in the above case did not hold that Suit No. BHC/78/18 is a pre-election matter, that it was those seeking to be joined that mentioned substitution of candidates but, it was not so held by this Court, reference was made to Exhibit ‘1’ attached to the Respondents’ Applicants’ affidavit and paragraphs 11,12 and 13 of the affidavit in support of the application in the previous matter. It was submitted that a case is an authority on what it decides but, not for counsel to read into same what is not there. See, AKEREDOLU VS. ABRAHAM (2018) LPELR 44067 (SC) PP. 34 – 35, PARAGRAPHS A – A. It was concluded that the issues raised are not pre-election matters and similarly the appeal. See, UFOMBA VS. INEC (2017) 13 NWLR (PT. 1582) at P. 175. We were urged to dismiss the preliminary objection for lacking in merit.
In reply, the learned counsel to the Respondents/Applicants submitted that he filed a motion and not a preliminary objection, seeBAB VS. MUOMAH (2013) 14 NWLR (PT. 137) PAGE 284.
Secondly, that the decision of this Court in CA/PH/281M/18 relates to the argument in Suit No. BHC/78/18, see, page 3, 4th paragraph, lines 7 – 9 where it was held that the above suit is a pre-election matter. It was concluded that based on the doctrine of stare decisis this Court is bound by the above decision, which is the law.
Considering the fact that time is of the essence in any matter concerning elections, whether pre-election, election or post election, the main appeal was argued after the application was taken on agreement by both counsel. I will come to the appeal if need be depending on the outcome of the motion.
It is trite that where the competence of a matter is challenged, in this case the appeal, this has to be looked into first before going into the substantive matter if need be. In the present appeal, the learned counsel to the Respondents termed his application a motion challenging the competence of the entire appeal while the learned counsel to the Appellant/Respondent termed it a preliminary objection. However, it is termed; it is a challenge to the competence of the substantive appeal, which has been alleged to be statute barred by the Respondents. This Court is expected to deal with and dispose of the challenge by the Respondents before taking any further step in the appeal.
It is noteworthy that a challenge to the competence of this appeal touches on jurisdiction of the Court and could be raised at any time and any stage of the matter, even at the Supreme Court and in any form with or without a preliminary objection or motion. It could be raised suo motu without formal application, it could be raised orally even by the Court. Moreso, this is a matter pertaining to election, which is sui generis, also time is of the essence. See, HARUNA ALHAJI GALADIMA VS. THE STATE (2017) LPELR 43469 (SC) PP. 3 – 4, PARAS. G – D, GENERAL ELECTRIC COMPANY VS. HARRY AYOADE AKANDE & ORS (2010) 12 (PT. 2) SCM 96; LAMIDI RABIU VS. TOLA ADEBAJO (2012) 6 SCM 201, UDENWA & ANOR VS. UZODINMA & ANOR (2012) LPELR 22283 (SC), RABIU VS. ADEBAJO (2012) LPELR 9709 (SC). The essence of the challenge by a preliminary objection is to foreclose the hearing of the appeal, it is therefore best to take it first and resolve same to save valuable time. See, YARO VS. AREWA CONSTRUCTION & ORS (2007) LPELR 3516 (SC) and OKAFOR VS. NWUDE (1999) 7 S.C. (PT. 1) 106.
No doubt, the decision that led to this appeal was delivered on 30th May, 2018 in Suit No. BHC/78/2018 and the Notice of Appeal was filed on 12th June, 2018. While the learned counsel to the Respondents/Applicants argued that the appeal is statute barred not having been determined within 60 days by virtue of the provisions of Section 285 (12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended by the 4th Alteration Act, No. 21, 2017) being a pre-election matter as determined by this Court on 12/12/18 in the unreported ruling in APPEAL NO. CA/PH/281M/2018 TONYE PATRICK COLE & OTHERS VS. IBRAHIM UMAH & 22 OTHERS where this Court held in clear terms that it is a pre-election matter, on the other hand, the learned counsel to the Appellant/Respondent has argued that it is not a pre-election matter. The gamut of learned counsel to the Appellant/Respondent’s argument is basically that the same matter from which the previous appeal emanated from and the present appeal is not a pre-election matter. The issue to be determined is therefore narrowed down to whether the present appeal is academic (as argued by the Respondents’/Applicants’ counsel) since this Court has earlier held that it is a pre-election matter.
The learned counsel to the Appellant/Respondent also argued that this Court did not hold that the case that resulted in Appeal No. CA/PH/281M/2018 (same that resulted to the present appeal) is a pre-election matter. It is therefore important at this juncture to reproduce part of what this Court held at page 3 of the Ruling in Appeal No. CA/PH/281M/2018 relied upon by both learned counsel in this appeal, my learned brother Yahya, JCA held thus:
‘We have looked at paragraphs 11, 12 and 13 of the affidavit 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(11) of the Constitution requires such application to be made within 14 days from the date of the judgment sought to be appealed from.'(underlined mine for emphasis)
From the above decision, this Court held in clear terms that the suit in the lower Court is a pre-election matter. Therefore, the issue of whether the said suit is a pre-election matter or not does not arise in the present case, same having been determined by this Court on 12/12/18 in Appeal No. CA/PH/281M/2018. This Court cannot sit on appeal over its earlier decision, the decision subsists and we are bound by it whether right or wrong, no matter the injury the decision may cause by the doctrine of stare decisis until it is set aside. The learned counsel did not argue that it has been set aside. The doctrine of stare decisis was aptly defined by this Court in SKYE BANK PLC VS. MRS JADESOLA KUDUS (2011) LPELR 4962 (CA), his lordship Ikyegh, JCA at P. 31, PARAS. E – F held thus:
“Stare decisis, a Latin expression, means standing by things decided or to quote from the apt definition in Black’s Law Dictionary (Eighth Edition) at page 1443: ‘The doctrine of precedent, under which it is necessary for a Court to follow earlier judicial decisions when the same points arise again in litigation'”
The doctrine of stare decisis is sacrosanct and must advisably be maintained. The essence is to retain consistency in the decisions of our Courts and this would certainly avoid conflicting decisions. In the present case, if we tow the line of argument of the Appellant/Respondent’s learned counsel, this Court would have given a divergent and conflicting decision. It must not and would not be done, no matter how tempting. We are by the above doctrine enjoined to follow the earlier judicial decision when the same point that has been decided earlier arises again, it ensures consistency and certainty in the state of the law and its application. See, the Apex Court’s decision inMAILANTARKI VS. TONGO & ORS (2017) LPELR 42467 (SC) PP. 17 – 18, PARAS. D & A, per Eko, JSC where his lordship explained the nature of the doctrine of judicial precedent/stare decisis and the necessity to abide by or adhere to decided cases.
The Supreme Court also in DINGYADI & ANOR VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION AND OTHERS (2011) LPELR 950 (SC) PP. 48 – 49, PARAS. A – B (also reported in (2010) 7 – 12 SC PAGE 105) his lordship, Adekeye, JSC emphasized on the need to abide by the doctrine thus:
Under the doctrine of stare decisis, lower Courts are bound by the theory of precedent. It is in effect a doctrine which enjoins Judges to stand by their decisions and the decisions of their predecessors however wrong they are and whatever injustice they inflict. All Courts established under the Constitution derive their powers and authority from the Constitution. The hierarchy of Courts shows the limit and powers of each Court. It is to ensure that hierarchy of the Court is never in issue. MOHAMMED VS. OLAWUNMI (1993) 4 NLWR (PT. 287) PG. 254; 7UP BOTLLING CO. LTD. VS. ABIOLA & SONS (NIG) LTD. (1995) 3 NWLR (PT. 883) PG. 257 OSHO VS. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (PT. 184) PG. 157, DALHATU VS. TURAKI (2003) 15 NWLR (PT.843) PG. 310, UNIVERSITY OF LAGOS VS. OLANIYAN (1985) 1 NWLR (PT. 1) PG. 156. The doctrine of judicial precedent does not involve an exercise of judicial discretion at all ‘it is mandatory. AMAECHI VS. INEC (2008) 5 NWLR (PT. 1080) PG. 227. Any request by a Court for a departure or overruling or re-visiting or reviewing or setting aside its previous decision will jeopardize the stable rules of judicial precedent – stare decisis. This is a basic reason why the Courts particularly the Supreme Court may not find it easy to readily yield to such invitation.'(underlining mine for emphasis)
The above authorities have said it all. We are bound by the unreported decision in CA/PH/281M/18, a decision of this Court in respect of the same matter that led to the present appeal. Our hands are therefore tied; the suit at the lower Court is a pre-election matter. The resultant effect is that since the decision giving rise to this appeal was taken on the 30th day of May, 2018 in Suit No. BHC/78/2018. IBRAHIM UMAH & 22 ORS VS. ALL PROGRESSIVE CONGRESS, the Notice of Appeal was timeously filed on 12th June, 2018; therefore 60 days from the date the Notice of Appeal was filed expired on 11th August, 2018. This appeal ought to have been heard and disposed of by this Court within 60 days from the date of filing the Notice of Appeal by the provisions of Section 285(12) of the Constitution (as amended) by the 4th Alteration Act, No. 21, 2017
Further, it is to be noted that the implication on the jurisdiction of the Court where a defendant (in this case a Respondent) raises the issue of statute bar in the cause of action of the plaintiff, his lordship Onnoghen JSC (now CJN) in OLAGUNJU & ANOR VS. PHCN PLC (2011) 10 NWLR (PT. 1254) 113; (2011) LPELR (2556) SC PAGE 11 held thus:
‘It should be noted that when a defendant contends that the action of the plaintiff is statute barred, he is raising an issue of jurisdiction of the Court on points of law because where an action is found to be statute barred it means that the Court has no jurisdiction to entertain it however meritorious the case may be. The success of that point of law takes away the right of action from the plaintiff leaving him with an empty unenforceable cause of action.'(underlining mine for emphasis)
Similarly, on the consequence of a statute barred action, in EBOIGBE VS. NNPC(1994) 5 NWLR (PT. 437) 649 the Supreme Court, per Adio, JSC held that:
Where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action has elapsed. See, ODUBEKO VS. FOWLER (1993) 7 NWLR (PT. 308) 637. An action commenced after the expiration of the period, within which an action must be brought, stipulated in the statute of limitation is not maintainable. See, EKEOGU VS. ALIRI (1991) 3 NWLR (PT. 179) 258. In short when the statute of limitation in question prescribes a period, within which an action must be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period.
See, also ASABORO & ANOR VS. PAN OCEAN OIL CORPORATION (NIG) LTD & ANOR (2017) LPELR 41558 (SC) at 30 – 31, per Peter – Odili, JSC; A – G ADAMAWA STATE & ORS VS. A ? G FEDERATION (2014) LPELR 23 221 (SC); EGBE VS. ADEFARASIN (1987) LPELR (1032) SC; ADEKOYA VS. FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT. 1099) 539.
The challenge of the competence of the present appeal succeeds and it is hereby upheld.
The next question that arises at this point is the effect of the success of the application that the appeal is incompetent, the time within which to appeal and determine same had elapsed and therefore statute barred by the provisions of Section 285(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended by the 4th Alteration Act, No. 21, 2017) which provides that the Appeal shall be heard and disposed of within 60 days from the date of filing same as earlier stated in this judgment. The appeal is statute barred.
The effect of the success of the objection to the competence of an appeal was well explained by the Supreme Court in UWAZURIKE & ORS VS. A.G FEDERATION (2007) LPELR 3448 (SC) his lordship, Ogbuagu, JSC held thus:
‘Where a preliminary objection to an appeal succeeds there would be no need to go further to consider the arguments in support of issues for determination. See, CHIEF BRIGHT ONYEMEH & ORS VS. LAMBERT EGBUCHULAM & ORS (1996) 5 NWLR (PT. 448) 255 at 268; (1996) 4 SCNJ 237; NEPA VS. ANGO (2001) 15 NWLR (PT. 737) 627 AT 645 – 646. ANPP VS. RETURNING OFFICER ABIA SOUTH SENATORIAL DISTRICT (MR. FESTUS UKAGWU) & 2 ORS (2005) 6 NWLR (PT. 920) 140 at 170 – 170; A – G FEDERATION VS. ANPP & ORS (2003) 12 SCNJ 67 at 81 ? 82 (2003) 18 NWLR (PT. 851) 182.’
(underlining mine for emphasis)
In the same vein, the Supreme Court in UDENWA & ANOR VS. UZODINMA & ANOR (2013) 5 NWLR (PT. 1346) 94 held thus:
Preliminary objection in a case is an objection, if upheld would render further proceedings before the Court impossible or unnecessary. An objection to the Court’s jurisdiction is an example of a preliminary objection. See Black’s Law Dictionary 9th Edition, page 1299. Generally, the Rules of this Court allow a Respondent to rely on a preliminary objection to the hearing of the appeal. The purpose of this is to bring the appeal to an end having been discovered to be incompetent and or fundamentally defective. It will therefore be unnecessary to continue with an appeal once an objection is raised without disposing of same.
On this note, based on the decided authorities highlighted above this Court having upheld the objection to the competence of the appeal cannot go into the merit of the substantive appeal, doing so would be an exercise in futility, purely academic. It is immaterial that the substantive matter would have succeeded. See, CONGRESS FOR PROGRESSIVE CHANGE VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2011) LPELR 8257 (SC) PP. 78 – 79, PARAGRAPHS G & E, his lordship Mohammed, JSC concerning academic/hypothetical issues held thus:
“In ODEDO VS. INEC (2008) 17 NWLR (PT. 117) 554 at 600, this Court citing with approval its earlier decision in PLATEAU STATE VS. A.G. FEDERATION (2006) 3 NWLR (PT. 967) 346 at 419 where Niki Tobi JSC stated the meaning of academic question. ‘a suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to the practical situation of human nature and humanity.’ An academic issue or question is one which does not require any answer or adjudication by a Court of law because it is not necessary. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party. See TANIMOLA VS. MAPPING GODATTA LIMITED (1995) 6 NWLR (PT. 403) 517; NWOBOSI VS. A.C.B. (1995) 6 NWLR (PT. 404) 658; OGBONNA VS. PRESIDENT F.R.N. (1997) 5 NWLR (PT. 504) 281 and NDULUE VS.IBEZIM (2002) 12 NWLR (PT. 780) 139.”
See, also IKUFORIJI VS. F.R.N. (2018) LPELR 43884 (SC) P. 11 C ? F per, Eko, JSC.
For all the above reasons, this Court cannot and would not look into the substantive appeal as it would be an exercise in futility. The resultant effect is that the appeal is incompetent, same is hereby struck out.
Parties are to bear their respective costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I agree
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I agree
Appearances:
Tuduru Ede, Esq. with him, E.N. Ebete, C.W. Jerome, Prince O.S.F. Azundah, J.C. Williams and L.A. OhajinwaFor Appellant(s)
H.A. Bello, Esq. with him, K.P. Luke, S.S. Okiri. L.T. Mieyebo and U.B. OpuwariFor Respondent(s)
