A.P.C. v. ENWEREM & ORS
(2020)LCN/14819(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, November 09, 2020
CA/A/CV/657/2020(R)
RATIO
ELECTION MATTER: WHAT IS A PRE-ELECTION MATTER
it is important to find out what a pre-election matter is. Section 285(14) (a) – (c) of the Constitution of the Federal Republic of Nigeria (4th Alteration Act), 2018 gave the meaning of a pre-election matter thus:
“14. For the purpose of this Section, “pre -election matter” means any suit by –
a) an aspirant who complains that any of the provisions of the Electoral Act or any of the Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been compiled with by a political party in respect of the selection or nomination of candidates for an election;
b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of an Electoral Act or any Act of the National Assembly regulating the elections in Nigeria has not been compiled with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
c) a political party challenging the actions, decisions or activities of the Independent Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been compiled with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.” (Emphasis Mine) PER BABA IDRIS, J.C.A.
ELECTION MATTER: HOW TO DETERMINE WHETHER AN APPEAL RELATES TO A PRE-ELECTION MATTER
It is settled law that to determine whether the appeal relates to a pre-election matter, the Court would look at the claim at the Trial Court which I have already done above.
The Supreme Court has laid down the principle to determine whether a case is a pre-election matter or not in the most recent case of ALL PROGRESSIVES CONGRESS VS. IBRAHIM UMAR (2019) 8 NWLR (PT. 1675) AT PAGE 575 AT PARA G per Sanusi, JSC thus:
“….that any preparation or process embarked upon by a political party in preparation for an election can as well be regarded as pre-election or prior to the election or before the election as opposed to post election which would obviously relate to any exercise or process done after the election. To my mind therefore, the process or exercise embarked upon by a political party such as congress, nomination exercise etc are all pre-election matters or exercise…” PER BABA IDRIS, J.C.A.
ELECTION MATTERS: PERIOD FOR FILING AN APPEAL FROM A DECISION IN A PRE-ELECTION MATTER
By the provision of Section 285(11) of the Constitution of the Federal Republic of Nigeria (4th Alteration Act), 2018 an appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against. Where an appeal is not filed within the prescribed constitutional time limit, the Court cannot extend time.
In the case of ALL PROGRESSIVES CONGRESS VS. IBRAHIM UMAR (SUPRA), AT PAGE 575 PARA A, the Apex Court held that no Court has the power to extend or expand the time assigned or stipulated by the Constitution or the law.
I would be borrowing from the words of the learned Honourable Justice Rhodes-Vivour, JSC at this point in saying that extending the time as in this case, would amount to a judicial legislation which would be wrong. The legislature is to make laws while the judiciary is to apply the law and in the process, explain it while it is the duty of discerning minds to study what the judiciary says.
This Court is bound by the decision of the Supreme Court on the position as postulated above by virtue of the doctrine of stare decisis and as such, this Court cannot deviate from the said position which has now been laid by the Apex Court. See DALHATU VS. TURAKI & ORS (2003) LPELR — 917 (SC); NIG AGIP OIL COMPANY LTD VS. NKWEKE & ANOR (2016) LPELR — 26060 (SC). PER BABA IDRIS, J.C.A.
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
ALL PROGRESSIVE CONGRESS (APC) APPELANT(S)
And
- EVAN ENWEREM 2. ADAMS OSHIOMOLE (National Chairman Of All Progressive Congress) 3. MR. DANIEL MADUEKE NWAFOR (Imo State Chairman Of All Progressive Congress) RESPONDENT(S)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Lead Ruling): The Appellant/Applicant has filed before this Court, a Motion on Notice dated 17th August, 2020 and filed on the same day seeking for the following reliefs:
1. AN ORDER enlarging the time within which the Appellant/Applicant may appeal against the judgment of the High Court of the Federal Capital Territory, Abuja delivered by the Hon. Justice O.A Musa on the 14th Day of August 2018 in Suit No. FCT/HC/BW/CV/103/2018 – EVAN ENWEREM V ALL PROGRESSIVES CONGRESS & ORS.
2. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.
The application was supported by an affidavit of 6 paragraphs. The 3rd Respondent filed a Counter Affidavit in opposition to the said Motion on the 31st August, 2020.
The Appellant/Applicant then filed a Further Affidavit on the 3rd of September, 2020.
At the hearing of the application, learned counsel to the Applicant urged the Court to grant the application on the ground that the Notice of Appeal raised issues of jurisdiction, and that the judgment of the lower Court was a nullity. Learned counsel
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submitted that in these circumstances, the Court should grant the application to extend time to appeal.
Counsel argued that once the issue of jurisdiction is raised in an application of this nature, it is granted without the need to show good reasons for the delay. The cases of EFP Co LTD VS. NDIC (2007) 9 NWLR (PT. 1099) 216 and ANACHEBE VS. IJEOMA (2014) 14 NWLR (PT. 1426) 168 were referred to.
Learned counsel for the 3rd Respondent in opposing the application argued that the judgment of the lower Court was on a pre-election matter, and that this Court lacks the jurisdiction to extend time, while stressing that the reasons given for the delay were false. Counsel urged the Court to refuse the application. Reliance was placed on the case of APC VS. UMAR (2019) 8 NWLR (PT. 1675) 564.
I have looked at the affidavit filed in support of the Application which has attached to it the Judgment of the Trial Court sought to be appealed against, the counter affidavit to the Motion on Notice filed by the 3rd Respondent and the Further Affidavit filed by the Appellant/Applicant in this case and I wish to formulate a sole issue for determination which I
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will address thereon.
ISSUE FOR DETERMINATION
Whether this is not a deserving case for this Court to exercise its discretionary power to grant the orders sought by the Appellant/Applicant.
The grant or refusal of the instant application falls within the discretion of this Court and in exercising this discretion, the Court has the power to look at the materials placed before it. In so doing, this Court would for the avoidance of doubt, consider first the oral argument of the 3rd Respondent’s Counsel when he argued that the matter leading to the instant appeal is a pre-election matter and that this Court lacks the Jurisdiction to grant an extension of time.
In determining this issue, it is important I take a look at the entirety of the facts, particularly the reliefs sought for by the Appellant/Applicant as Claimant/Applicant at the Trial Court which can be found in the body of the judgment of the lower Court attached as Exhibit A to the supporting affidavit. See WESTERN STEEL WORKS LTD VS. IRON & STEEL WORKERS UNION OF NIG. (1987) 1 NWLR (PT1 49) 284; (1986) LPELR – SC. 225.
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The reliefs are:
1. Whether having regard to the Appeal pending before the Court of Appeal, Owerri Judicial Division in which the 1st Defendant herein is an Appellant thereat and the pending Motion for Stay of Execution of the Judgment of the Federal High Court, Owerri Judicial Division in Suit No; FHC/OW/CS/69/2018, BETWEEN: BARR. MBAGWU AUGUSTINE & ORS V APC & ORS, delivered on the 5th Day of July, 2018 the Independent National Electoral Commission had the power/duty to monitor the state, ward and Local Government Congresses of the 1st Defendant purportedly held in Imo State of Nigeria Between the 20th and 23rd of July, 2018?
2. Whether the 1st Defendant has the powers to validly/lawfully schedule an d/or conduct the state, ward and Local Government Congresses of the 1st Defendant purportedly held in Imo State of Nigeria between the 20th and 23rd of July, 2018, without Twenty-One (21) days notice given to the Independent Electoral Commission in line with the mandatory provision of Section 85(1) of the Electoral Act, 2010 (as amended)?
3. Whether having regard to the Appeal pending before the Court of Appeal, Owerri Judicial Division in which the 1st Defendant is an Appellant
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Thereat and the pending motion for stay of Execution of the Judgment of the Federal High Court, Owerri Judicial Division in suit No: FHC/OW/CS/69/2018, BETWEEN BARR. MBAGWU AUGUSTINE & ORS V APC & ORS, delivered on the 5th day of July, 2018, the 1st Defendant can validly/lawfully schedule and/or conduct the state, ward and Local Government Congresses of the 1st Defendant purportedly held in Imo State of Nigeria between the 20th and 23rd of July, 2018?
4. Whether having regard to the Appeal pending before the Court of Appeal, Owerri Judicial Division in which the 1st Defendant is an Appellant thereat and the pending Motion for stay of Execution of the Judgment of the Federal High Court, Owerri Judicial Division in Suit No: FHC/OW/CS/69/2018, BETWEEN BARR. MBAAGWU AUGUSTINE & ORS V APC & ORS, delivered on the 5th Day of July, 2018, the State, Ward and Local Government Congresses of the 1st defendant Purportedly held in Imo State of Nigeria between the 20th and 23rd of July, 2018 is not illegal, unlawful, null and void and a gross abuse of Court/Judicial Process.”
Having in mind the reliefs sought for by the Appellant/Applicant at
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the trial Court as reproduced above, it is important to find out what a pre-election matter is. Section 285(14) (a) – (c) of the Constitution of the Federal Republic of Nigeria (4th Alteration Act), 2018 gave the meaning of a pre-election matter thus:
“14. For the purpose of this Section, “pre -election matter” means any suit by –
a) an aspirant who complains that any of the provisions of the Electoral Act or any of the Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been compiled with by a political party in respect of the selection or nomination of candidates for an election;
b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of an Electoral Act or any Act of the National Assembly regulating the elections in Nigeria has not been compiled with by the Independent National Electoral Commission in respect of the selection or nomination of
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candidates and participation in an election; and
c) a political party challenging the actions, decisions or activities of the Independent Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been compiled with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.” (Emphasis Mine)
Looking at the reliefs sought by the Appellant/Applicant and the entire facts of the case as embedded in the Judgment of the trial Court, it is clear that the matter before the Court is one that has to do with the Congress convened by the Appellant/Applicant for the purpose of electing its executive committees, other governing bodies or nominating candidates for any elective offices specified under the Electoral Act, 2010 as contained in the provisions of Section 85 of the Electoral Act, 2010.
Reading the provision of Section 285(14) (a) – (c) of the Constitution of the Federal Republic of Nigeria (4th Alteration Act), 2018
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especially subsection (c), in conjunction with the Reliefs sought by the Appellant/Applicant at the Trial Court and the provisions of Section 85 of the Electoral Act, 2010 would reveal that the matter before this Court is a pre-election matter.
It is settled law that to determine whether the appeal relates to a pre-election matter, the Court would look at the claim at the Trial Court which I have already done above.
The Supreme Court has laid down the principle to determine whether a case is a pre-election matter or not in the most recent case of ALL PROGRESSIVES CONGRESS VS. IBRAHIM UMAR (2019) 8 NWLR (PT. 1675) AT PAGE 575 AT PARA G per Sanusi, JSC thus:
“….that any preparation or process embarked upon by a political party in preparation for an election can as well be regarded as pre-election or prior to the election or before the election as opposed to post election which would obviously relate to any exercise or process done after the election. To my mind therefore, the process or exercise embarked upon by a political party such as congress, nomination
8
exercise etc are all pre-election matters or exercise…”
By the provision of Section 285(11) of the Constitution of the Federal Republic of Nigeria (4th Alteration Act), 2018 an appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against. Where an appeal is not filed within the prescribed constitutional time limit, the Court cannot extend time.
In the case of ALL PROGRESSIVES CONGRESS VS. IBRAHIM UMAR (SUPRA), AT PAGE 575 PARA A, the Apex Court held that no Court has the power to extend or expand the time assigned or stipulated by the Constitution or the law.
I would be borrowing from the words of the learned Honourable Justice Rhodes-Vivour, JSC at this point in saying that extending the time as in this case, would amount to a judicial legislation which would be wrong. The legislature is to make laws while the judiciary is to apply the law and in the process, explain it while it is the duty of discerning minds to study what the judiciary says.
This Court is bound by the decision of the Supreme Court on the position as postulated above by virtue of the doctrine
9
of stare decisis and as such, this Court cannot deviate from the said position which has now been laid by the Apex Court. See DALHATU VS. TURAKI & ORS (2003) LPELR — 917 (SC); NIG AGIP OIL COMPANY LTD VS. NKWEKE & ANOR (2016) LPELR — 26060 (SC).
From the above findings and authorities applied by this Court, it is my strong and unshaken view that the matter before this Court is not only statute barred but it has become academic and the relief sought in the application of the Appellant/Applicant would not be of any meaningful remedy since this Court already bereft of jurisdiction.
Putting into consideration all the above findings and authorities cited by this Court, this is not a deserving case for this Court to exercise its discretionary power to grant the orders sought by the Appellant/Applicant.
The application by the Appellant/Applicant is hereby refused. I make no order as to cost.
PETER OLABISI IGE, J.C.A.: I agree.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of previewing the draft of the Ruling delivered by my learned brother, Mohammed Baba Idris, JCA.
I agree with
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the reasoning and conclusion reached therein and I also refuse the application.
I make no order as to costs.
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Appearances:
Emukpoeruo Esq., with him, S. N. Ernest-Egbuna Esq. For Appellant(s)
Kargibo Esq., – for the 2nd Respondent
C. Ogunji Esq., with him, C. Okafor Esq., and C. Onyemachi Esq., – for 3rd Respondent For Respondent(s
