AMAKOM & ORS v. OBIDIGWE & ORS
(2021)LCN/15157(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, March 11, 2021
CA/AW/546/2019
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
1. CHINEDU CHRISTIAN AMAKOM 2. DANIEL UDENZE 3. KEN OBI APPELANT(S)
And
1. CHINEDU BENJAMIN OBIDIGWE 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION 3. ALL PROGRESSIVES GRAND ALLIANCE RESPONDENT(S)
RATIO
IMPORTANCE OF THE RESOLUTION OF THE PRELIMINARY OBJECTION
I shall take the Preliminary Objection first. A resolution of the preliminary objection will determine the need or otherwise to go into the issues distilled in the main appeal. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
WHAT IS A PRE-ELECTION MATTER
A pre-election matter in simple English language means any event, actions or conduct that occurred or took place before the election proper. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
INTERPRETATION OF SECTION 285(12) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED) REGARDING PERIOD WITHIN WHICH AN APPEAL ARISING FROM A PRE-ELECTION MATTER MUST BE DETERMINED
Section 285(12) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) provides: “An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.” It is on Record that the Judgment appealed against was delivered on the 3rd of May, 2019. The Appellants initiated the Appeal on the 17th of May, 2019. From the date of filing of the appeal till the day this appeal was heard has exceeded the 60 days stipulated under Section 285(12) of the constitution within which the appeal ought to have been heard and concluded. “Courts do not have the vires to extend the time assigned by the constitution. The time cannot be extended, or expanded or elongated, or in any way enlarged. The time fixed by the constitution is like the Rock of Gibraltar or Mount Zion which cannot be moved. 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.” See ANPP V. GONI (2012) 7 NWLR (PT. 1298) 147 at 182 & 191. Having not heard and determined this Appeal within 60 days from the date it was filed, this Court cannot grant the Appellants extension of time. The appeal has lapsed for all intents and purposes and no Court can resurrect or breath life into it. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): This Appeal is a by-product of the Judgment of the Federal High Court sitting in Awka in Suit No FHC/AWK/CS/13/2019, delivered on the 3/5/2019 Coram B. O. Quadri, J. The learned trial Judge dismissed the Suit on the basis that the Suit was not filed in accordance with Section 31 (5) of the Electoral Act, 2010 (As Amended) and that the cause of action in the Suit accrued and became complete when the Appellants obtained Certified True Copies of the 1st Respondent’s INEC forms CF001 and E.C 4B(V) on the 15/11/2018 and therefore rendered the Suit filed on 6/11/2018 incompetent and also that the Suit was barred on issue Estoppel Res Judicata having been decided by two Courts of coordinate jurisdiction.
SUMMARY OF FACTS:-
The Appellants in this Appeal hail from Anambra East and West Federal constituency respectfully. The 1st Respondent on the other hand was the nominated candidate of All Progressives Grand Alliance (APGA) for election into the office of the House of Representatives for Anambra East & West Constituency for the 2019 General Election.
On the 26/10/2018, the 2nd
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Respondent published at its Anambra State Headquarters Awka and at Anambra East and West Local Government Headquarters, the personal particulars of the 1st Respondent in forms CF001 and EC 4B(V) as submitted to it by the 1st Respondent.
The Appellants discovered what they felt was false information in the said published 1st Respondent’s INEC forms CF001 and E.C 4B(V), filed Suit No FHC/AWK/CS/13/2019 by originating summons on the 6/11/2018. The Appellants consequently applied to the 2nd Respondent (INEC) for Certified True Copies of the said forms on 30/10/2018 which was issued to them on the 15/11/2018 which the Appellants forwarded to the lower Court through a further affidavit filed on 8/2/2019.
The 1st and 2nd Respondents in reaction, filed a counter affidavit as well as Notice of Preliminary Objection. The 3rd Respondent applied and was subsequently joined in the Suit.
Learned Counsel for the Appellants Ifeanyi E. Umeji Esq distilled four issues for determination as follows:
ISSUE ONE
“Whether the lower Court was right when it held that the Suit was not competently filed in accordance with Section 31 (5) of the 2010 Electoral Act (As Amended)
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in that the Appellants failed to obtain Certified True Copies of 1st Respondent’s INEC form CF001 and Form E.C 4B(V) before instituting the Suit.”
ISSUE TWO
Whether the lower Court was right when it held that the cause of action in the Suit accrued and became complete when the Appellants obtained Certified True Copies of 1st Respondent’s INEC Form CF001 and Form E. C 4B (V) on 15/11/2019 and thus rendering the originating summons filed on 6/11/2018 incompetent and inchoate.
ISSUE THREE
When the lower Court was right when it held that this Suit is barred on issue Estoppel Res Judicata, same issue having been heard and determined by two (2) Courts of coordinate jurisdiction in Suit No OT/194/2018 and Suit No FHC/AWK/CS/148/2018.
ISSUE FOUR
Whether the lower Court was right when it failed or refused to evaluate and make a finding on the preponderance of documentary and affidavit evidence placed before it that the 1st Respondent supplied false information in his INEC Form CF001 and Form E. C. 4B (V), more especially the 1st Respondent’s admission in his Counter affidavit that his
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stating in his INEC Form CF001 that he was a public officer when he was not, was a “mistake”.
Learned Senior Counsel for the 1st Respondent Arthur Obi Okafor, SAN adopted the four issues distilled by Counsel for the Appellants. Learned Counsel for the 2nd Respondent, E. E. Udeh Esq also adopted the four issues as distilled by Counsel for the Appellants.
Learned Counsel for the 3rd Respondent E. N. Onyibor Esq also adopted the four issues distilled by Counsel for the Appellants.
Learned Senior Counsel for the 1st Respondent Arthur Obi Okafor, SAN raised a Preliminary Objection which he argued at pages 1 – 12 of his Amended Appellants’ brief.
Learned Counsel for the 3rd Respondent E. N. Onyibor Esq also raised a Preliminary Objection which he also argued on pages 1 – 5 of his 3rd Respondent’s brief.
I shall take the Preliminary Objection first. A resolution of the preliminary objection will determine the need or otherwise to go into the issues distilled in the main appeal.
The 1st Respondent is challenging the competence of this appeal on three Grounds. Firstly, that the Appellants, not being
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aspirants or political parties as contemplated by Section 285 (14) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) lack the locus standi to institute and maintain the action that gave rise to this Appeal.
Secondly, that the cause of action in this Suit is outside the subject matter provided under Section 285 (14) of the Constitution for the presentation of pre-election matters.
Thirdly, that the sixty days prescribed by Section 285 (12) of the Constitution within which an Appeal arising from a pre-election matter must be determined had elapsed.
Learned Senior Counsel for the 1st Respondent argued these grounds extensively driving home each point with authorities.
Learned Counsel for the 3rd Respondent in his Preliminary Objection argued on similar grounds.
The resolution of this Preliminary Objection will be incomplete without first determining whether or not this is a pre-election matter. A pre-election matter in simple English language means any event, actions or conduct that occurred or took place before the election proper.
To determine whether this matter is a pre-election matter or not, one has to
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look at the questions for determination and the reliefs sought by the Appellants in the originating summons found at pages 1 – 5 of the Record of Appeal as follows:
1. Whether the 1st Defendant has given false information to the 2nd Defendant in his INEC form EC. 4B (iv) [Nomination Form]; INEC form C.F 4.001 [Affidavit in support of personal particulars of persons particulars seeking election to the office/member House of Representatives for Anambra East and West Federal Constituency for 2019 general election; and his supporting documents?
2. Whether having regard to the clear and unambiguous and sacrosanct provisions of Section 31(3) of the Electoral Act, 2010 (as amended) the 1st Defendant will be denied eligibility to stand and contest election for House of Representatives for Anambra East and West Federal Constituency in the 2019 general election in view of the false information over his personal particulars he submitted on oath to the 2nd Defendant?
3. Whether having regards to the provisions of Section 31(6) of the Electoral Act, 2010 as Amended, the 1st Defendant is bound and liable to be disqualified from standing election for
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House of Representatives for Anambra East and West Federal Constituency for 2019 general election for giving false information over his personal particulars he submitted on oath to the 2nd Defendant?
4. Whether the 1st Defendant has lied on oath in his INEC form EC.4B(iv) [Nomination Form]; INEC form C.F 4.001 [Affidavit in support of personal particulars of persons particulars seeking election to the office/member House of Representatives for Anambra East and West Federal Constituency for 2019 general election; and his supporting documents?
5. Whether the 1st Defendant is bound to be prosecuted for giving false information to the 2nd Defendant.
The Reliefs sought by the Appellants are as follows:
i. A Declaration that 1st Defendant has given false information to the 2nd Defendant in his INEC form EC.4B(iv) [Nomination Form]; INEC form C.F 4.001 [Affidavit in support of personal particulars of persons particulars seeking election to the office/member House of Representatives for Anambra East and West Federal Constituency for 2019 general election; and his supporting documents?
ii. A Declaration that having regard to the provisions of
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Section 31(3) of the Electoral Act, 2010 as amended, the 1st Defendant is ineligible to stand and contest election for House of Representatives for Anambra East and West Federal Constituency for 2019 general election for giving false information over his personal particulars he submitted on oath to the 2nd Defendant?
iii. An Order of this Honourable Court disqualifying the 1st Defendant as the nominated candidate of the APGA for giving false information to the 2nd Defendant?
iv. An Order of the Honourable Court mandating the 2nd Defendant to remove and delete the name of the 1st Defendant from the list of nominated candidates for election into office of House of Representatives for the Anambra East and West Federal Constituency.
v. An Order of this Honourable Court, mandating the Inspector General of Police to prosecute the 1st Defendant for lying on oath with respect to the information he submitted to the 2nd Defendant.
From the above, it is very clear that the Appellants filed an originating summons seeking among other reliefs a declaration that the 1st Respondent is not eligible to stand and contest the election for House of
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Representatives for Anambra East and West Federal Constituency for 2019 general election on the ground that he gave false information to INEC. Consequently, the Appellants prayed for the disqualification of the 1st Respondent from contesting the election.
Looking at the questions for determination and reliefs sought by the Appellants already reproduced, it is crystal clear that the Appellants’ Suit could best be tagged a pre-election matter. I say so because all the events and actions including the filing of the Suit occurred before the election that took place in 2019 praying for declaratory reliefs and orders to disqualify the 1st Respondent from taking part in that election.
This Suit can therefore not come under any compartment except that of pre-election. From the declaratory reliefs and the questions for determination the appropriate baptismal name which the Appellants chose for their Suit is pre-election and no more.
Having called it by its real name, the next step is to look at the relevant laws governing pre-election matters.
Having determined that this is a pre-election matter, I shall start from the third ground of this
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preliminary objection i.e that the sixty days prescribed by Section 285 (12) of the Constitution within which an Appeal arising from a pre-election matter must be determined had elapsed. Section 285(12) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) provides:
“An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.”
It is on Record that the Judgment appealed against was delivered on the 3rd of May, 2019. The Appellants initiated the Appeal on the 17th of May, 2019. From the date of filing of the appeal till the day this appeal was heard has exceeded the 60 days stipulated under Section 285(12) of the constitution within which the appeal ought to have been heard and concluded.
“Courts do not have the vires to extend the time assigned by the constitution. The time cannot be extended, or expanded or elongated, or in any way enlarged. The time fixed by the constitution is like the Rock of Gibraltar or Mount Zion which cannot be moved. If what is to be done is not done within the time so fixed, it lapses as the Court is
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thereby robbed of the jurisdiction to continue to entertain the matter.”
See ANPP V. GONI (2012) 7 NWLR (PT. 1298) 147 at 182 & 191.
Having not heard and determined this Appeal within 60 days from the date it was filed, this Court cannot grant the Appellants extension of time. The appeal has lapsed for all intents and purposes and no Court can resurrect or breath life into it.
A determination of this third ground of objection has rendered the other two grounds unnecessary and academic. There is also no need or justification going into the Appeal proper as that would amount to an attempt to resurrect the dead.
In the premise, there is merit in the Preliminary Objection and it is hereby upheld. The end result is that Appeal No CA/AW/546/2019 is hereby struck out.
I award N200,000 (Two Hundred Thousand Naira costs against the Appellants.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had read in draft the lead judgment just delivered by my learned brother CHIOMA NWOSU-IHEME, JCA.
I agree with his reasoning and conclusion that this appeal is hereby struck out.
I abide by the consequential order made as to costs.
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PATRICIA AJUMA MAHMOUD, J.C.A.: I had the advantage of reading in advance the lead judgment of my learned brother, CHIOMA NWOSU- IHEME, JCA just delivered.
I agree with the reasoning and conclusion therein that there is merit in the preliminary objection raised by the Respondent. I uphold the preliminary objection and consequently strike out this appeal for being incompetent. I also abide by the consequential order made as to costs.
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Appearances:
Ifeanyi Umeji For Appellant(s)
Arthur Obi-Okafor, SAN with him, P. Mabia & A. O. Okafor – for 1st Respondent.
E. N. Onyibor, Esq. – for 3rd Respondent. For Respondent(s)
