ADINOR v. SOLUDO & ORS
(2022)LCN/16065(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Saturday, April 30, 2022
CA/AW/101/2022
Before Our Lordships:
Hamma Akawu Barka Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
FRANCIS UJEDO ADINOR APPELANT(S)
And
1. CHARLES CHUKWUMA SOLUDO 2. IBEZIM ONYEKACHUKWU GILBERT 3. ALL PROGRESSIVES GRAND ALLIANCE (APGA) 4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON PRE-ELECTION MATTERS
In the case of Mato vs. Hember (2018) ALL FWLR (pt. 927) 146, per Onnoghen CJN, the Supreme Court held the view, that once a suit is filed before the holding of an election, that qualifies it as a pre-election matter. The learned counsel for the appellant relying on APC vs Moses (2021) 14 NWLR (pt. 1796) 278, and AbdulRazak vs. APC & Ors (supra) is of the opinion that this latter decisions by the Apex Court limited the scope of that and other decisions on the issue, predicating their contention on the strict interpretation of Section 285 (14) of the Constitution, which stipulated that:
Pre-election means any suit by, an aspirant who complains that any provisions of the Electoral Act or any act of the National assembly regulating the conduct of primaries of political parties…, an aspirant challenging the actions, decisions or activities of INEC…, and a political party challenging the actions decisions or activities of INEC,.. see Chukuma Francis Ibezim vs. Senator Ifeanyi Godwin Ararume & Ors (2022) LPELR-56936 (CA). PER BARKA, JC.A.
WHETHER OR NOT TEH COURT HAS A STATUTORY DUTY TO COSNDIER AND MAKE PRONOUNCEMENT ON ALL ISSUES RAISED BY PARTIES BEFORE IT
The Apex Court in the case of Petroleum Ltd. Anor vs. UBA Plc and Anor (2010) 6 NWLR 530, held that a Court has a statutory duty to consider and to make pronouncements upon all issues raised by the parties and not to confine itself to only those issues that disposes of the case. The rationale being that should a higher Court hold a different view on the materiality of the issues, it may be late in the day to make any tangible corrections. This principle has been statutorily entrenched in Section 285 (8) of the Constitution which provided that; where a preliminary objection or any interlocutory issue touching on the jurisdiction of the tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment. My Lord Agim, now JSC, in the two cases of APP vs. INEC (2019) LPELR-48465 (CA), and Mohammed vs. APC & Ors (2019) LPELR — 48368 (CA), clearly extoled and clarified the legal position, backed by a constitutional provision. The duty thus placed on the Court of trial to make pronouncement on all issues cannot be founded on mere advise as the learned senior counsel would want the Court to believe. Contrariwise, that requirement as far as election matters are concerned enjoys the backing of the Constitution and the cases cited by the learned senior counsel in that regard, in view of the clear stipulation of Section 285 (8) of the Constitution would obviously not apply, the damage therein lies in the fact that even where the appeal succeeds, the suit cannot in the circumstance be remitted for retrial or dealt with by the appellate Court due to the effusion of time. This to me transmutes to a clear denial of fair hearing. The trial Court shirked that constitutional duty and no excuse whatsoever will avail it. The holding of the lower Court at page 820 of the record declining to entertain the appellant’s matter on the basis that the case being a pre-election matter or election related matter and time being of essence it will amount to an exercise in futility attending to the other issues, is a decision made in unpardonable. PER BARKA, JC.A.
THE CONDITIONS TO BE PRESENT FOR THE POWERS UNDER SECTION 15 OF THE COURT OF APPEAL ACT 2004 AS AMENDED TO BE INVOKED
Hence having earlier held that appellant was denied fair hearing, would it be proper for this Court to invoke its powers under Section 15 of the Court of Appeal Act 2004 as amended? My attention has been drawn to the recent decision of this Court in Saki vs. APC (2019) LPELR—47703 (CA), which enumerated the following conditions which must co- exist for the Section to apply, and this includes;
i. That the trial Court had the legal power to adjudicate the matter before the appellate Court entertained it.
ii. That the real issue raised by the claim of the appellant at the High Court or trial Court must be capable of being distilled from the grounds of appeal.
iii. That all necessary materials must be available to the Court for consideration.
iv. That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and
v. The injustice or hardship will follow if the case is remitted to the Court below.
However, just like in the case before us, the futility of proceeding with the suit originating the instant appeal is that as at now, the suit has become statute barred by effluxion of time, and as noted by the erudite jurist in the case cited, by the provisions of Section 285 (10) of the 4th alteration to the 1999 Constitution, as amended, the Court in every pre-election matter shall deliver its judgment within 180 days from the date of the filing of the suit. PER BARKA, JC.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, sitting in the Awka Division, and presided by the Hon. Justice H. A. Nganjiwa in suit with No. FHC/AWK/CS/81/2021, between, Francis Ujedor Adinor vs. Charles Chukuma Soludo and 3 Ors, which judgment was delivered on the 22nd day of February, 2022. By the said decision, the Court of trial conclusively held at page 818 of the record, that the plaintiffs’ originating process before the Court, which initiated and thus commenced the suit before it was defective, and for that singular reason denied that Court the jurisdiction to entertain the suit, proceeding to thereby dismiss the suit.
It is evident from the records that Elections to the Governorship of the Anambra State of Nigeria was held on the 6th and 9th of November, 2021, and while the appellant who claimed being a financial member of the Allied Peoples Movement, the 1st and 2nd respondents herein, having shown interest in vying for the position of Governor and Deputy Governor of the State, and who did contest for the said election under the platform of the All Progressive Grand Alliance (APGA), were at the end of the day declared as having won the said election.
By way of an originating summons filed on the 27th day of August, 2021, appellant as plaintiff before the trial Court, sought answers to some pertinent questions, principally, as to the interpretation of Sections 31(1) (5) and (6) of the Electoral Act 2010 (as amended) with respect to the filing of Form EC — 9 being a mandatory form filed in support of the personal particulars of persons seeking election to the office of Governor and Deputy Governor of Anambra State respectively, contending that the information contained in the stated forms EC—9 filed by the 1st and 2nd respondents contained false information which disqualified the 1st and 2nd respondents from contesting the election which was to be held, and other sundry questions. Premised on the above, appellant sought from the lower Court a declaration that the forwarding of the 1st and 2nd defendants’ name or any other name to the 3rd defendant as the candidate for the Anambra State Governor and Deputy Governor for the purpose of the Anambra Governorship election scheduled to hold on the 6th of November, 2021, and preparation to publish and/or publishing the name of the 1st and 2nd Defendants as the candidates for the said election is illegal unconstitutional, null and void and of no effect whatsoever. Appellant also sought for an order of perpetual injunction from the lower Court, restraining the 3rd defendant, their agent, servants affiliates or privies from recognizing and dealing with the 1st and 2nd defendants, or any other person as the third defendants candidate for the Anambra State Governorship election to be conducted by the 4th defendant on the 6th of November, 2021; order of Court restraining the 1st and 2nd defendants from parading or holding themselves out as the validly nominated candidates of the 3rd defendant for the Anambra State Governorship election to be conducted on the 6th of November, 2021 or any other date as may be scheduled by the 4th defendant, and in the event the suit is not determined before the anticipated election and the 1st and 2nd defendants are eventually declared as having won the election, to order for the setting aside of the certificate of return issued by the 4th defendant to the 1st and 2nd defendants and to be issued to the candidate with the highest number of valid votes scored in the Anambra State Governorship election to be conducted on the 6th of November, 2021.
Aside the affidavit filed in support of the originating summons, sundry documents were attached to the originating processes. On receipt of the originating processes, the 2nd 1st and 3rd defendants filed in counter affidavits to the action in that order, all in opposition to the application, and in consequence of which, Appellant filed a motion on notice seeking to amend his Originating motion, which motion was dismissed by the lower Court. In the course of proceedings, the trial Court asked the parties to address it on the question; whether it had the jurisdiction to entertain the suit in the light of the earlier ruling made on the motion on notice seeking to amend. At the end of addresses on the issue, the trial Court agreed with the respondent’s counsel and ruled that the originating summons commencing the suit was incompetent, and thereby robbing the Court of the jurisdiction to entertain the suit, which was then struck out. That was on the 21st day of January, 2022.
The Court thereafter asked the parties to file written addresses on whether it can continue to determine the substantive suit which the parties responded to, filed and adopted, thus setting the stage for the vexed judgment delivered on the 22nd day of February, 2022, to the effect that the Originating process being incompetent, the Court was robbed of the necessary jurisdiction to entertain the suit.
Not unnaturally, appellant was displeased with the judgment of the lower Court, and to show his displeasure, filed a notice of appeal on the 4th day of March, 2022, predicated on seven grounds of appeal. The appeal having been properly entered to this Court as demanded by the rules, parties proceeded to file in their respective briefs of argument. In the brief settled for the appellant by Egwuaba Reuben Esq. of learned counsel, and filed on the 21st day of April, 2022, the following issues were identified for resolution:
i. Whether the lower Court cannot grant an application for an amendment of a typographical error as made by the typist in an affidavit in support of originating summons?
ii. Whether having regard to Section 36 (1) of the Constitution of the Federal Republic of Nigeria (as amended) and decided cases, the decision of the lower Court which held that the lower lacked jurisdiction to hear the appellant’s suit, does not amount to denying the appellant his rights to fair hearing and therefore renders the judgment of the lower Court as a judgment with a fundamental lacuna?
Issue One.
Whether the lower Court cannot grant an application for an amendment of a typographical error as made by the typist in an affidavit in support of originating summons?
The submissions of the learned counsel for the appellant can be found at pages 9—26 of the brief settled for the appellant. Learned counsel submitted that contrary to the decision of the lower Court, appellant’s originating processes is not a pre-election matter upon which the Court could have denied the appellant amending a simple misnomer. Alluding to the provision of Section 113 of the Evidence Act, 2011, the Federal High Court Procedure Rules 2019, counsel opined that those provisions allow a party to amend originating processes. Also relying on a host of cases including Abubakar vs. Yar’adua (2008) 4 NWLR (pt. 1078) 465 at 511, Moh’d Abubakaar Rimi Sabon Gari Market Co. Ltd vs. Okeke (2017) LPELR-43181 (CA) Rozen vs. NDIC (2007) ALL FWLR (pt. 348) 823, Jessica Trading Co Ltd vs. Bendel In surance Co. Ltd (1993) 1 NWLR (pt.271) 538 at 547 amongst many others, it was his contention that Courts over the time expressed the desire of determining cases on the merit, and to that end amendments which give meaning to the case of the plaintiff or the defendant as the case may be ought to be allowed for the purpose of determining the real question in controversy between the parties or correcting any defect(s) or error(s) in the proceedings. That apart, it was argued by the learned counsel, it is factual that the various rules of Court most particularly the Evidence Act 2011, permit the use of defective affidavits so long as the Court is satisfied that the defective affidavit was sworn before a duly authorized person, but complained that that did not weigh in the mind of the Court, further complaining that the lower Court in its ruling on the issue failed and/or neglected to consider the state of the law in that regard.
In further argument, learned counsel while leveraging on the cases of Yonwuren vs. Modern Signs (Nig) Ltd (1985) LPELR-3529 (SC) per Obaseki JSC, Amako vs The State (1995) LPELR-451 (SC), Ibezim vs. Elebeke (2022) 4 NWLR (pt. 1819) 22, contended that amendment of pleadings for the purpose of determining the real question in controversy between the parties ought to be allowed unless the amendment will entail injustice surprise or embarrassment. And further referred the Court to the cases of Omisore & anor vs. Aregbesola & Ors (2015) NWLR (pt. 1482), and Uduma vs. Prince Arua Arunsi & 14 Ors (2012) 7NWLR (pt. 1298) at 95 per Ogunwumiju, now JSC to submit that since the suit before the lower Court was not regulated by Section 285 (14) of the 1999 Constitution, as amended, it was wrong for the trial Court to have abandoned substantial justice in pursuit of technicality, further contending that where a deficiency occurs in an affidavit, it lies with the deponent to offer explanation of the error, and the case of Ladoja (2006) LPELR—7655 (CA), per Amina Adamu Augie, now JSC was relied on.
He contended that the live issue or complaint in the entire process before the lower Court which appellant sought to amend was the error in the spelling of the name of the appellant as deponent in the affidavit in support of the originating summons, for which the appellant had supplied enough materials for the grant of the application to amend. He argued that this simple application was what the Court refused, rather opting for technicalities thus occasioning a miscarriage of justice. He posited that the era of technicalities is no more in vogue as stated in numerous cases some of which are Nagogo vs. CPC & Ors (2012) LPELR—15521 (SC), Aeronautical Engineering Tech Services Ltd vs. North Wales Military Aviation Services Limited (2020) LPELR—52267 (CA) per Dongban-Mensem JCA, thereby urging the Court to depart from doing technical justice and to ensure that cases are decided on the merit. Learned counsel then referred the Court to the decisions of the Apex Court in Maersk Line & Anor vs. Addide Investments Ltd & Anor (2002) LPELR—1811 (SC) per Ayoola JSC, Agip (Nig) Plc vs. Ossai & Ors (2018) LPELR-44712 (CA), to the effect that if the entity intended to be sued exists but a wrong name used to describe it, that will amount to a misnomer, and leveraging on the case of In Re-Ladoja (2006) LPELR-7655 (CA), opined that the inconsequential error in the affidavit in the spelling of the name of the appellant which ordinarily could have been orally corrected, and thereby urged the Court to see to the doing of substantial justice, proceed and to hear and determine the appellant’s suit in the interest of justice.
Issue Two.
Whether having regard to Section 36 (1) of the Constitution of the Federal Republic of Nigeria (as amended) and decided cases, the decision of the lower Court which held that the lower lacked jurisdiction to hear the appellant’s suit, does not amount to denying the appellant his rights to fair hearing and therefore renders the judgment of the lower Court as a judgment with a fundamental lacuna?
It was the contention of the learned counsel for the appellant that by Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999, a person in the determination of his civil rights and obligation, including any question or determination by or against any government or authority, that person shall be entitled to a fair hearing within a reasonable time by a Court or Tribunal established by law and in such a manner as to secure its independence and impartiality. He complained that this constitutional provision was breached by the lower Court having dismissed the appellant’s case, and refused to determine the case before it on the merit. He argued that the live issue or complaint pertained to the wrong spelling of the name of the deponent/appellant in the affidavit in support of the originating summons, as well as the refusal of the lower Court allowing it to correct the misnomer, rather resorting to technicality and dismissing the appellant’s suit in limine. Placing reliance on the decision of the Apex Court per Kekere-Ekun JSC in Ayoade vs. The State (2020) LPELR—41379 (SC), learned counsel argued that a complaint founded on lack of fair hearing will avail a party where he establishes the fact that he was denied the opportunity of presenting his case and went on to complain that appellant was indeed denied that enabling environment to so ventilate his case, and relied on the cases of Mobil Oil Producing Nig Unltd vs. Monokpo (2003) 12 SC (pt. 11) 50 at 89, Mokwe vs. Williams (1997) 11 NWLR (pt. 528) 309 at 321, Eriobuna vs. Obiora (1999) 8 NWLR (pt. 616) 662 at 642. It was his position that the trial Court had the duty to hear and to determine all pending processes which the lower Court failed to adhere to, and submitted that the proceedings thus conducted in breach of the appellant’s right to fair hearing amounted to a nullity as stated in Afro- Continental Nig. Ltd & Anor vs. Cooperative Association of Professionals Inc. (2003) 5 NWLR (pt. 815) 303, Ovunwo vs. Woko (2011) 17 NWLR (pt. 1277) 522 at 548, and Akpamgbo-Okadigbo vs. Chidi (No.1) (2015) 10NWLR (pt. 1466) 171 at 220.
Submitting further on the issue, learned counsel relied on Petroleum Ltd & Amp, vs. UBA Plc & Amp (2010) 6 NWLR 530 at 53, APP vs. INEC (2019) LPELR-48465 (CA), and Mohammed vs. APC & Ors (2019) LPELR—48368 (CA) in reiterating the legal position that a Court has the statutory duty of considering and making pronouncement upon all issues raised by the parties and not to confine itself to only that issue which dispenses of the case without pronouncing on the other issues agitated upon.
He opined that the lower Court abandoned this well-established legal principle, and after deciding the preliminary objection refused to proceed and to determine the substantive suit on the merit as advised by the superior Courts. Premised on the above, counsel urged the Court to resolve the issue in its favor.
In conclusion, appellant seeks the order of this Court granting the prayers contained in the motion papers for the amendment of the misnomer in the originating summons under Order 17 of the Federal High Court Civil Procedure Rules 2019, by virtue of Section 15 of the Court of Appeal Act 2004 or in the alternative, remit the case to the Chief Judge of the Federal High Court for assignment to a Judge other than Nganjiwa J, with an order that it be determined expeditiously.
In opposing the appeal, the 1st respondent filed a brief on the 29th day of April, 2022 and settled by P.I.N. Ikwueto SAN. In his estimation, a total of three issues arise for consideration as follows:
1. Whether the ruling of the learned trial Court refusing the appellant’s application to amend the originating summons is still subsisting, correct and justified in law.
2. Whether the decision of the learned trial Court that the instant originating summons is incompetent and without jurisdiction is justified in law
3. Whether the appellant’s right to fair hearing was breached in the proceedings before the learned trial Court.
With respect to the 1st issue, which is whether the ruling of the learned trial Court refusing the appellant’s application to amend the originating summons is still subsisting, correct and justified in law, the learned senior counsel referred the Court to the reasoning of the trial Court refusing the application founded on the following;
i. The matter is not a pre-election matter but an election related matter and the principle of sui generis and time is of the essence applies.
ii. The plaintiff’s failure to depose to the affidavit in support of the motion for amendment is fatal to his application, and
iii. The application for amendment is incompetent for failure to bring the application within the 14 days from the 19th August, 2021.
The counsel similarly invited the Court to find that the judgment of the trial Court incorporated and was tied to its ruling delivered on the 21st of January, 2022, and argued that appellant did not appeal against the interlocutory ruling delivered by the trial Court within the 14 days period allowed by law by virtue of Section 24(1) and 2 (b) of the Court of Appeal act as amended, and the consequence counsel argued, is that ground one as well as issue one derived therefrom is incompetent. The case of Kilawa vs. Kalshingi & Anor (2018) LPELR—45630 (CA) was relied on. Learned counsel premised on the above urged the Court to resolve issue one in favor of the 1st respondent to the effect that not having appealed within 14 days and/or not applied for extension of time within which to file, the ruling of the trial Court with respect to the appellant’s application to amend the originating summons still subsists and is justified in law.
With respect to the 2nd issue, which is whether the decision of the learned trial Court that the instant originating summons is incompetent and without jurisdiction is justified in law, the learned senior counsel recoined the issue to read whether this Court has jurisdiction to entertain this suit in the light of the said ruling, referred to the proceedings of the lower Court at pages 743—735 of the records, and the ruling of the lower Court to the effect that being a pre-election matter or an election related matter, the principle of the law that applies to Section 285 (14) of the Constitution also applies to the provisions of Section 31(5) & (6) of the Electoral Act, 2010 insisting that there is no competent appeal against that ruling of the trial Court, neither is there any ruling on any specific finding of the learned trial Court, and for that purpose the ruling remains binding, maintaining that the limitation period of time applicable for pre-election matters as defined in Section 284 (14) of the 1999 Constitution also apply to actions filed under Section 31 (5) and (6) of the Electoral Act 2010, as amended.
With respect to whether the suit was a pre-election matter within the contemplation of Section 285 (14) of the Constitution of the Federal Republic of Nigeria, learned senior counsel relied on the cases of Modibbo vs. Usman (2019) LPELR-48076 (CA), Atiku & Anor vs. INEC & Ors (2020) 12 NWLR (pt. 1737) 37 at 161, Abdul-Razak vs. APC (2021) LPELR-51380 (CA), to the effect that the disqualification of a candidate on grounds of false information in his form CF 001 is a pre-election matter by dint of Section 285 (14) of the Constitution. He then referred to the recent decision of the Apex Court in PDP vs. Ogwulegbo (unreported) in Appeal with No SC/CV/471/2021 delivered on the 11th of April, 2022 which expanded the scope of pre-election matters, submitting that the instant case falls within that broad interpretation given to pre-election matters by the Supreme Court in APC vs. Umar (supra) and thereby urged the Court to affirm the decision of the lower Court.
On the 3rd issue proposed, Whether the appellant’s right to fair hearing was breached in the proceedings before the learned trial Court, it was argued by learned counsel that the learned appellant’s contention on the issue is misconstrued, as the principle admits of some exceptions. He relied on the decision of Ikechukwu vs. FRN (2015) 7 NWLR (pt. 1457) 1 at 21 to argue that where the jurisdiction of a Court is undermined or lacking, the appropriate order is to strike out the suit. He also argued that what the Court emphasized is that it is necessary and desirable, but that the fact that a Court lacks jurisdiction to determine the case creates an exception, and the cases of Bronik vs. Wema Bank (1983) 1 SCNLR 296, and Ojora vs. Agip (Nig) Plc (2014) 1 NWLR (pt. 1387) 150 at 193. were relied upon. On the invitation extended to this Court to exercise its general powers over the suit, learned senior counsel submits that by the recent case of PDP vs. Ogwulegbo (supra) which reaffirmed its decision in APC vs. Umar (supra), a limitation period of 180 days from the filing of the instant suit by virtue of Section 285 (10) had lapsed, and relying on Saki vs. APC (2020) 1 NWLR (pt. 1706) 515 at 537 of the considered view that this Court cannot exercise the powers as the action is statute barred by dint of Section 285 (10) of the Constitution.
On the merits of the substantive suit, learned counsel submitted that a careful examination of the case of the appellant as formulated in the originating summons will depict that a case of forgery/falsification or giving false information in the documents or certificates the 1st and 2nd respondents submitted to INEC preparatory to the Anambra State Governorship Election is totally unfounded and without merit. He referred the Court to the decision of the Supreme Court in the case of Ibezim vs. Elebeke (2022) 4 NWLR (pt. 1819) 1, which distinguished the decision in PDP & Ors vs. Degi-Eremienyo (2020) LPELR—49734 (SC), and thereby urged this Court to hold that the originating summons filed by the appellant’s before the lower Court was without merit.
In the brief settled for the 2nd respondent by C.I. Mbaeri, and from the seven grounds of appeal filed, a sole issue was crafted for the resolution of the appeal as follows:
Whether or not the trial Court struck out the affidavit in support of the originating summons and accordingly declined jurisdiction to hear the appellant’s suit. Hitherto, learned counsel had raised a preliminary issue on the competence of appellant’s ground one, contending that the ruling was delivered on the 21/01/2022, and by virtue of Section 285 (11) of the CFRN 1999, elapsed since the 3rd of February, 2022, and the appellant cannot use issue one in the appeal to complain about the dismissal of the application for amendment with this Court being urged to strike out issue one. Arguing the main appeal, learned counsel submits that it is common ground that the appellant Francis Ujedo Adinor is not the same name as Francis Udejo Adinor and therefore the trial Court’s finding that the deponent falsely portrayed himself as the appellant cannot be faulted, also alluding to the holding of the trial Court at page 816-817 of the record, learned counsel submits that the fatal effect of an incompetent affidavit to a Court process is well settled, and urged the Court to uphold the finding of the lower Court.
On the contention by the appellant that he was denied fair hearing as enshrined under Section 36 (1) of the Constitution, learned counsel relied on the cases of Asogwa vs. Ugwuegede & Ors (2015) LPELR 40673 (CA) and Magaji vs. Nigerian Army (2008) LPELR 1814 (SC) to contend that it has become the fashion for litigants resorting to complaining about denial of fair hearing so as to cure all inadequacies urging the Court to be influenced by those decisions. He goes on to posit that the appeal is unsuitable for the exercise of general powers of the Court under Section 15 of the Court of Appeal Act, since the suit being an election related matter, is governed by Section 285 (14) of the Constitution and thereby time bound. He listed the conditions for the invocation of power of the Court of Appeal under Section 15 of the Act, relying on Galadima vs. Yellah (2020) LPELR – 51971 (CA), and Saki vs. APC (2019) LPELR – 47703 (CA), contending that all the conditions must be met before the Court can exercise that power. Learned counsel on the whole urged the Court to dismiss the appeal.
The 3rd respondent also filed a brief on the 29th of April, 2022, together with an application brought on notice and filed on the same date. The application is for the striking out of ground 1 of the Notice of Appeal for being incompetent and without jurisdiction, argued from pages 6 — 13 of the 3rd respondent’s briefs settled by Chinedu Ezeh, the learned counsel for the 3rd respondent. And also, for the main appeal, the following two issues were identified for resolution:
i. Whether the lower Court rightly determined that it had no jurisdiction to entertain this suit decision of the trial Court that the instant originating summons is incompetent and without jurisdiction is justified in law.
ii. Whether the appellants was denied fair hearing by the lower Court.
The two issues argued by the 3rd Respondent are in no way different from the arguments proffered by the learned counsel for the 1st and 2nd Respondents. I find it therefore unnecessary to reproduce the same but will refer to the arguments in the body of the judgment. The appellant thereafter dutifully filed a composite reply on points of law to the briefs filed by the 1st, 2nd and 3rd respondents. I intend to also consider the replies to the briefs in the body of judgment in the resolution of the issues.
My Lords, the two preliminary issues raised by the parties in their respective submissions, as well as issue one distilled by the appellant are all on the same precinct. Whereas the 2nd Respondent questioned the competence of the appellant’s issue one from pages 4-5 of the brief, the 3rd Respondent by their application brought on notice and filed on the 29/4/2022 also sought for the striking out of the appellant’s ground one in the Notice of Appeal as well as issue one derived therefrom for want of competence. I intend to treat the issues all at the same time, being interrelated.
The facts generating the instant appeal do not appear contentious to me. At the risk of being repetitious, the appellant who claimed a member of the Allied Peoples Movement (APM), a registered political party, which also fielded candidates for the recent elections to the office of the Governor of Anambra State conducted on the 6th day of November, 2021, claimed that the 1st and 2nd respondents who submitted their INEC forms EC-9 and the annexed credentials to the 4th respondent, which information was published on the 19th of August, 2021 as candidates of the 3rd respondent in the election to the Governorship and Deputy Governorship of the Anambra State of Nigeria holding on the 6th day of November, 2021 was a pre-election matter defined by Section 285 (14) of the CFRN 1999, being as alleged that the information contained therein is false. It was contended that the plaintiff not being an aspirant, the suit does not qualify as a pre-election matter. I note here that the appellant in one breath admits to the suit before the lower Court being a pre-election or election related matter, while in other instances denies that fact. The law is trite that a litigant should be consistent in the presentation of his case as he cannot blow cold and hot at the same time speaking from the two sides of his mouth.
In the case of Mato vs. Hember (2018) ALL FWLR (pt. 927) 146, per Onnoghen CJN, the Supreme Court held the view, that once a suit is filed before the holding of an election, that qualifies it as a pre-election matter. The learned counsel for the appellant relying on APC vs Moses (2021) 14 NWLR (pt. 1796) 278, and AbdulRazak vs. APC & Ors (supra) is of the opinion that this latter decisions by the Apex Court limited the scope of that and other decisions on the issue, predicating their contention on the strict interpretation of Section 285 (14) of the Constitution, which stipulated that:
Pre-election means any suit by, an aspirant who complains that any provisions of the Electoral Act or any act of the National assembly regulating the conduct of primaries of political parties…, an aspirant challenging the actions, decisions or activities of INEC…, and a political party challenging the actions decisions or activities of INEC,.. see Chukuma Francis Ibezim vs. Senator Ifeanyi Godwin Ararume & Ors (2022) LPELR-56936 (CA).
In a similar case that came before this Court in Hon. Momoh Abdul-Razak & Anor vs. ALL Progressive Congress & Anor (2021) LPELR—53180 (CA), this Court held that same was a pre-election matter. Sanusi JSC, in APC vs. Ibrahim Umar (2019) LPELR—47296 (SC) gave vent to that view having held that:
“it goes without saying therefore 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… I am inclined to agree with the submission of learned counsel for the respondents that the exercise involved in the congresses covers or includes activities which are or should be done preparatory to an election”
The Apex Court endorsed this legal position in its latest judgment of the PDP vs. Ogwulegbo (supra), per Ogumwumiju JSC, clamoring for a broader definition of the term, pre-election matter in Section 285 (14) of the Constitution. I am therefore swayed by the argument that what is being complained about in the instant suit pertains to and covers preparations to the holding of an election, the questioning of the nomination of the 1st and 2nd respondents, and of thus precluding any action in the nature contemplated after the election. I therefore agree that being an election matter, it must be time bound, and thereby contemplated by Section 285 (14) with the time of its prosecution equally limited by the provisions of Section 285 (12) of the Constitution. The holding of the lower Court to the effect that”
“I hold that matters under Section 31(5) and (6) of the Electoral Act are also sui generis and time is of the essence and therefore, the 14 days allowed to file any process or amend any process applicable in the instant case”, solidly made.
Now, the appellant cried out that he was denied fair hearing, predicating his complaint on the failure of the lower Court to attend to the substantive suit after endorsing the preliminary objection on grounds of lack of jurisdiction. The Apex Court in the case of Petroleum Ltd. Anor vs. UBA Plc and Anor (2010) 6 NWLR 530, held that a Court has a statutory duty to consider and to make pronouncements upon all issues raised by the parties and not to confine itself to only those issues that disposes of the case. The rationale being that should a higher Court hold a different view on the materiality of the issues, it may be late in the day to make any tangible corrections. This principle has been statutorily entrenched in Section 285 (8) of the Constitution which provided that; where a preliminary objection or any interlocutory issue touching on the jurisdiction of the tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment. My Lord Agim, now JSC, in the two cases of APP vs. INEC (2019) LPELR-48465 (CA), and Mohammed vs. APC & Ors (2019) LPELR — 48368 (CA), clearly extoled and clarified the legal position, backed by a constitutional provision. The duty thus placed on the Court of trial to make pronouncement on all issues cannot be founded on mere advise as the learned senior counsel would want the Court to believe. Contrariwise, that requirement as far as election matters are concerned enjoys the backing of the Constitution and the cases cited by the learned senior counsel in that regard, in view of the clear stipulation of Section 285 (8) of the Constitution would obviously not apply, the damage therein lies in the fact that even where the appeal succeeds, the suit cannot in the circumstance be remitted for retrial or dealt with by the appellate Court due to the effusion of time. This to me transmutes to a clear denial of fair hearing. The trial Court shirked that constitutional duty and no excuse whatsoever will avail it. The holding of the lower Court at page 820 of the record declining to entertain the appellant’s matter on the basis that the case being a pre-election matter or election related matter and time being of essence it will amount to an exercise in futility attending to the other issues, is a decision made in unpardonable.
My lords, let me now turn to the vital question, whether the ruling by the lower Court refusing the appellant’s application to amend the originating process was correct or justified in law, which question correlates with the appellant’s issue one, for which the learned counsel for the appellant referred this Court to the decision of Ajayi vs. AG Ogun State (2008) ALL FWLR (pt. 445) 1724, and Atai vs. Dangana, a judgment of this Court in CA/A/EPT/582/2011. I have carefully studied the said decisions which for all purposes are correct on the facts before it. I however fail to understand the cases cited as being helpful to the present case. I however see the question arising being similar to that answered in the case of Kilawa vs. Kalshingi (supra), which is whether the ruling of the trial Court founding the ground of appeal was also made a ground in the appeal. In the case just cited, the question was asked whether the ruling was an interlocutory decision and by the provisions of Section 24(2) and Section 24 (4) of the Court of Appeal Act, an appeal against the ruling which ought to have been filed within 14 days? It is the law as posited that where the ground of appeal emanates from an interlocutory decision as part of the substantive appeal, then the appellant must first seek and obtain an order of extension of time to appeal against the said ruling outside the prescribed statutory period and the ruling must state on the face of the notice of appeal as one of the subject matter of the appeal. This position of the law finds support in the decision of the Apex Court in Ogigie vs. Obiyan (1997) 10 NWLR (pt. 524) 179, to the effect that although a party can include an appeal against a ruling on an interlocutory application when he comes to appeal against the final judgment for the purposes of eradicating delays, in order to marry the two, there is the need to seek leave to appeal out of time where the time to do so had lapsed, and this must be so even where the issue raised in the interlocutory ruling is one of jurisdiction. See also Adejobi vs. State (2011) 12 NWLR (pt. 1261) 347. It is obvious from the record of appeal before the Court, that appellant’s appeal in this case is against the whole decision. I therefore find myself irresistibly agreeing with the 1st, 2nd and 3rd respondents that in the circumstance it was incumbent on the appellant to have sought for and obtained the leave of Court for the extension of time to appeal against the ruling outside the prescribed time limit, and the fact of that ruling must be stated on the face of the notice of appeal as one of the subject matters of the appeal. That evidently not having been done, rendered appellant’s appeal, notably ground one thereof and the issue framed therefrom incompetent and liable to be struck out. The argument made that a point of law not appealed against stands, is the true position of the law and remains sacrosanct unless set aside on appeal is trite, see Ogunyade vs. Oshunkeye (2007) 5 NWLR (pt. 1057) 218 @ 257. Such is the fate of the present appeal. In other words, appellant having failed to seek for and to obtain the leave of either the lower Court or this Court to appeal against the interlocutory decision of the lower Court within the time allowed, and the appeal having been anchored upon that ruling, the appeal cannot be said to be competent, with the resultant effect of having same struck out. I thereby resolve this issue against the appellant.
Hence having earlier held that appellant was denied fair hearing, would it be proper for this Court to invoke its powers under Section 15 of the Court of Appeal Act 2004 as amended? My attention has been drawn to the recent decision of this Court in Saki vs. APC (2019) LPELR—47703 (CA), which enumerated the following conditions which must co- exist for the Section to apply, and this includes;
i. That the trial Court had the legal power to adjudicate the matter before the appellate Court entertained it.
ii. That the real issue raised by the claim of the appellant at the High Court or trial Court must be capable of being distilled from the grounds of appeal.
iii. That all necessary materials must be available to the Court for consideration.
iv. That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and
v. The injustice or hardship will follow if the case is remitted to the Court below.
However, just like in the case before us, the futility of proceeding with the suit originating the instant appeal is that as at now, the suit has become statute barred by effluxion of time, and as noted by the erudite jurist in the case cited, by the provisions of Section 285 (10) of the 4th alteration to the 1999 Constitution, as amended, the Court in every pre-election matter shall deliver its judgment within 180 days from the date of the filing of the suit. The appellant’s suit having been overtaken by events and the 180 days having lapsed, this Court lacks the power to look at the substance of the complaint in the first place. This is because since the lower Court under the prevailing circumstance would have had no jurisdiction to entertain that matter anymore, it follows that this Court which by dint of Section 15 of the Court of Appeal Act empowered to wear the shoes of the trial Court, would equally be without jurisdiction to do so. In that case, the complaint lodged by the appellants before the lower Court and filed sometimes more than the 180 days allowed by statute, the application to have the matter remitted to the lower Court for redress and or this Court descending to the status of the trial Court and thereby considering the merit of the suit remains not feasible, and the application to that effect cannot be granted.
Lastly, even for the purposes of argument, on the merit of the suit, which complained that 1st and 2nd respondents’ certificates and documents submitted to INEC in INEC form EC — 9 bear the following different names; that is, for the 1st respondent, Charles Chukuma Soludo, Soludo Charles, Soludo Charles Chukuma, Soludo Chukuma Charles and Prof. Chukuma Soludo, while for the 2nd respondent, the following different names formed the subject of complaint, viz; Ibezim Onyeka Chukwu, Ibezim Onyechukwu G., Ibezim Onyekachukwu Gilbert and Gilbert Onyekachukwu. My understanding of the gross of the appellant in the suit filed can only relate to arrangement or re-arrangement of the names as they appear on the various processes bearing the said names. I agree with the respondent’s counsel that the situation in the case originating the instant appeal and that in the PDP vs. Degi-Eremienyo (2021) 9 NWLR (pt. 1781) 274, as clearly explained in Dantiye vs. APC (2021) 18NWLR (pt. 1808) 381 are clearly distinguishable. In any case, the Apex Court must have laid the issue to rest in its recent decision in Ibezim vs. Elebeke (2022) 4 NWLR (pt. 1819) 1, where Agim JSC stated that:
“The trial Court referred to the different arrangements in the sequence of the three names, Ibezim, Francis Chukuma in the different documents and the use of the name Ibezim Chukuma Francis in one of the documents and found that the appellant made false statements in the document bearing Ibezim Chukuma Frank, Ibezim Francis Chukuma and those in which three full names were differently arranged”
And proceeded to hold that:
“In the absence of any evidence that the differently arranged names or the shortened one Ibezim Chukuma Frank are false or do not belong to other persons, the finding is perverse. It is perverse to find that they are false statements in a document and that the documents bearing them are false. It is speculative and unreasonable”
See also the case of Abubakar vs. INEC (2019) ALL FWLR (pt. 1010) 179 @ 341, where it was held that:
“The variation in the name of the 2nd respondent on exhibits R 19 and R21 is non-equator since both of them refer to and were issued in respect of the same person who bears the names as set out therein”.
The ratio of this decision and the case of Ibezim (supra) applies to the 1st respondent, the arguments being the same. This holding finds support from the fact that the 1st and 2nd respondents by their various affidavits of facts owned up to the names as being their names arranged differently, and the allegation of falsity being criminal in nature, the fact that the names are false and/or that they amount to or contain false information must be proved being reasonable doubt. I agree with the learned counsel for the respondents, and abiding by the decision of the Supreme Court on the matter, that this case and the case of the PDP vs. Degi-Eremienyo (supra) are clearly distinguishable and cannot be applied to the instant case. I see no iota of merit at all in the appellant’s case before the trial Court, and I am inclined to see with the lower Court that the action was indeed filed mala fide. Let me chip in that appellant had nothing to gain in the prosecution of the case, except for the sounding of undeserved nose making and unnecessary distraction. Save for the fact that, and in respect of my earlier position that appellant was denied fair hearing, when the trial Court proceeded to determine the suit on the basis of the preliminary objection, and holding that it lacked the jurisdiction to entertain the appellant’s suit, without going further and complying with the provision of Section 285 (8) of the Constitution of the Federal Republic of Nigeria, 1999, all other issues are determined against the appellant.
In the result, the appeal succeeds in part, and having held that appeal before the Court is incompetent, the irreversible conclusion is that this appeal is liable to be struck out and it is hereby struck out by me. I make no order on costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I agree
ABBA BELLO MOHAMMED, J.C.A.: I agree
Appearances:
Eqwuaba Reuben with him, Morrison Amaefule. For Appellant(s)
P.I.N.Ikwueto (SAN) with him, C.C.Emekekwe -for 1st Respondent.
C.I. Mbaeri with him, Kelechi Anwu – for 2nd Respondent.
Chinedu Eze – for 3rd Respondent.
4th Respondent though served, was not represented. For Respondent(s)