ANYAKORAH & ORS v. INEC & ORS (2021)

ANYAKORAH & ORS v. INEC & ORS

(2021)LCN/15044(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, February 08, 2021

CA/A/877/2020

RATIO

RULE OF INTERPRETATION TO BE FOLLOWED WHERE THE WORDS USED IN THE CONSTITUTION ARE CLEAR AND FREE FROM AMBIGUITY

It is trite law that once the words used in the Constitution are clear and free from ambiguity, they should be given their natural meaning without any additives or embellishments. Words used are to be given their ordinary meaning without resorting to any extrinsic aid. See Assams & Ors v. Ararume & Ors. (2016) 1 NWLR (Pt. 1493) 368, Olafisoye v. FRN (2004) 4 NWLR (Pt. 864) 580. PER STEPHEN JONAH ADAH, J.C.A

NATURE OF THE DOCTRINE OF JUDICIAL PRECEDENT OR STARE DECISIS

In the case of Adesokan & Ors v. Adetunji & Ors. (1994) 5 NWLR (Pt. 346) 540, Onu, JSC, held on the nature of the doctrine of judicial precedent/stare decisis as follows:
“…Stare decisis et non quela movere, meaning literally – To stand by what has been decided and not to disturb and unsettled things which are established. Stare decisis thus means to abide by former precedents where the same points come again in litigation. Stare decisis presupposes that the law has been solemnly declared and determined in the former case. It thus precludes the Judge of the subordinate Courts from changing what has been determined. In other words, they should keep the scale of justices even and steady not liable to waiver with every Judge’s opinion.” “Under the doctrine of stare decisis, lower Courts are bound by the theory of precedent. Now a precedent is an adjudged case or decision of a higher Court considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law. Courts attempt to decide cases on the basis of principles established in prior cases. Thus, prior cases which are close in facts or legal principles to the case under consideration are called precedents.” PER STEPHEN JONAH ADAH, J.C.A

WHETHER A COURT MUST LOOK INTO THE MERIT OF A MATTER WHICH IS STATUTE BARRED

Ordinarily, when the trial Court or this Penultimate Court of Appeal comes to the decision that a matter is statute barred, the Order to issue is a dismissal of the Suit. However, in the interest of justice and fair play, the Court knowing that the case may go on appeal to the next appellate Court, it is conscionable and proper having regards to the nature and the exigencies of the case to look into the merit of the case. PER STEPHEN JONAH ADAH, J.C.A

INTERPRETATION OF THE PROVISION OF SECTION 15 OF THE COURT OF APPEAL ACT REGARDING CONDITIONS THAT MUST EXIST TO INVOKE THE POWER OF THE COURT OF APPEAL

In the case of DEC Oil & Gas Ltd v. Shell Nig. Gas Ltd (2019) 14 NWLR (Pt. 1692) 273, the Supreme Court per Galinje, JSC, at page 303 (Paras E – G) held that: The provision of Section 15 of the Court of Appeal Act is very clear as to the use of the powers of that Court. The power of the Court is to make order, necessary for determining the real issue in controversy in the appeal. The power clearly is not to strike out or dismiss an appeal in which the issues in controversy have not been fully determined. The section also stipulates that the Court shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance.
This provision clearly means that whatever the Federal High Court was competent to do, the Court of Appeal is as well competent to do the same thing.
The law as in Section 15 has been well interpreted by many other decisions of the Supreme Court. In Ezeigwe v. Nwawulu (2010) LPELR – 1201 (SC), the Supreme Court per Onnoghen, JSC, (as he then was) held further as follows: “In interpreting the above provision, this Court has, in the case of Obi v. INEC (2007) 1 NWLR (Pt. 1046) 465, Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227, Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply the following conditions must exist, to wit: (a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it”, (b) that the real issue raised by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; (c) that all necessary materials must be available to the Court for consideration (d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and (e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.”PER STEPHEN JONAH ADAH, J.C.A

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

SAMUEL ANYAKORAH 2. HUMPHREY EZIKE 3. EUGENE OKOLI 4. LIVINUS NWOKIKE 5. DAN ANARUAGU 6. GERALD OGWO 7. AKACHUKWU OFUNNE 8. CHRISTIAN NWEKENTA 9. COLLINS ILOKA 10. ALFRED OKAFOR 11. PHILIP NSUDE 12. MIKE IFEATU 13. J.C. ANIAKO 14. EMEIRU SABASTINE 15. OKEKE JOSEPH 16. ENEMUO SUNDAY 17. FRANCIS CHUKWUDI 18. UCHE EMENIKE 19. EMEKA OKEZUE 20. JOHN EZE 21. MIKE OKOYE 22. OZOEMENA EMOKA 23. EJIOFOR GEOGREY 24. JAMES OBIORA 25. IKECHUKWU EZE 26. UDEKWE CHINWENBA 27. IWUNOR ANUMUDU 28. MAXIMUS UBAAPPELANT(S)

And

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 2. PEOPLES DEMOCRATIC PARTY (PDP) 3. MARCEL JACHIM ANYIAM 4. CHIEF NDUBISI NWOBU 5. CHIEF BARR. EMMA ODUM 6. HON. ALEX IREMEKA 7. HON. NDU IKOWU 8. CHIEF JOHN EKWEOSOR 9. CHIEF HYGINUS ANAETO 10. OHIGBO DIBIA AEZUE 11. ENGR. VICOTO NKIRUKA 12. CHUCKS ONONYE IZUGBE 13. SAMUEL OZOEKWE 14. COMRADE JOHNSON MELIKAM 15. AZUBUIKE ODIAKOSA 16. HON. BONNY OKOYE 17. ENGR. SIR CHIGOZIE IGWE 18. HON. EMEKA AGULUE 19. BARR. UCHENNA OBIORAH 20. CHIEF TOM OKOLI 21. MAZI OKO ECHENDU 22. JUDE O. EZEANA 23. JULIUS EMEKA NNAJIDE 24. CHINWEOBIA IFEANYIRESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Abuja, delivered on the 21st September, 2020, Coram: I.E. Ekwo, J.

By an Amended Originating Summons dated and filed on the 22nd June, 2020, the appellants herein approached the trial Court for the determination of the following questions:
1. Whether the Anambra PDP Congresses, respectively conducted on 28th November, 2017 and 1st December, 2017 (validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report) by the Sir Chukwudi Umeaba (then Acting Chairman, State Caretaker Committee) led team, in compliance with the provisions of Section 223 (1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 85 of the Electoral Act, 2010, Sections 12, 13, 14 & 15 of the Constitution of the Peoples’ Democratic Party (amended in 2017) & Article 8, (x), (xi), (xiii), (xv), (xvi), (xvii), (xviii), (xix) of the PDP – Electoral Guidelines for Primary Election, are not the authentic/lawful Congresses, from

which Party Delegates and Officers ought to have emerged and be recognized, for conduct of the Anambra State Congress.
2. As part of its power to “monitor the organization and operation of political parties” under paragraph 15 of Part 1 of the Third Schedule to the 1999 Constitution (as amended) and the provisions of Sections 85, 86 (1)- (4), 87 (4) (b) of the Electoral Act 2010 (as amended) and Article 8, (x), (xi) (xiii), (xv), (xvi), (xvii), (xviii), (xix) of the PDP, Electoral Guidelines for Primary Election, whether the 1st Defendant ought to recognize, accept, regard, relate with and or accord – approvals to any other party officers or delegates for conduct of the Anambra State Congress, apart from the Party Officers and Delegates that emerged from the Anambra PDP Congresses, respectively conducted on 28th November, 2017 and 1st December, 2017 (validated by the Senator Grace Bent Ward Congress Appeal Report and Barrister Ukpai Ukairo Local Government Appeal Report) under the supervision of Sir Chukwudi Umeaba, as Acting Chairman, State Caretaker Committee.
3. In view of the combined provisions of Sections 222, 223 &

224 of the 1999 Constitution (as amended), Article 8, (x), (xi), (xiii), (xv), (xvi), (xvii), (xviii), (xix) of the PDP, Electoral Guidelines for Primary Election, Sections 12, 13, 14 & 15 of the Constitution of the Peoples Democratic Party (amended in 2017) and the supremacy of organization, bodies & organs, whether the 2nd Defendant will be at liberty to operate outside the Party Constitution in the conduct of the Anambra State Congress, by derogating from the list of already inaugurated Party Officers and Delegates that emerged from the Anambra PDP Congresses, respectively conducted on 28th November, 2017 and 1st December, 2017 and validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report.

The appellants/plaintiffs thereafter, claimed against the respondents/defendants jointly and severally for the following reliefs:
1. A DECLARATION that the Anambra PDP Congresses, respectively conducted on 28th November, 2017 and 1st December, 2017 (validated and approved by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report), by

the Sir Chukwudi Ume – Uba (the Acting Chairman, State Caretaker Committee) led team, in compliance with the provisions of Section 223 (1)(a) of the Constitutions of the Federal Republic of Nigeria 1999 (as amended), Section 85 of the Electoral Act, 2010, Sections 12, 13, 14 & 15 of the Constitution of the Peoples’ Democratic Party (amended in 2017) & Article 8, (x), (xi), (xiii),(xv), (xvi), (xvii) (xviii), (xix) of the PDP, Electoral Guidelines for Primary Election, are the authentic and lawful congresses, which ought to be accorded recognition by the 1st Defendant and given effect to by the 2nd Defendant, for the conduct of the Anambra State Congress.

A DECLARATION that as part of the 1st Defendant’s power to “monitor the organization and operation of political parties” under paragraph 15 of Part 1 of the Third Schedule to the 1999 Constitution (as amended) and the provisions of Sections 85, 86 (1)-(4), 87 (4)(b) of the Electoral Act 2010 (as amended) and Article 8, (x), (xi), (xiii), (xv), (xvi), (xvii), (xviii), (xix) of the PDP, Electoral Guidelines for Primary Election, the 1st Defendant ought to recognize,

accept, regard, relate with and or accord all approvals to only the Party Officers and Delegates that emerged from the Anambra PDP Congresses, respectively conducted on 28th November, 2017 and 1st December, 2017, as validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report, for conducted of the Anambra State Congress.
3. A DECLARATION that in view of the combined provisions of Sections 222, 223 & 224 of the 1999 Constitution (as amended), Article 8, (x), (xi), (xiii), (xv), (xvi), (xvii), (xviii), (xix) of the PDP, Electoral Guidelines for Primary, Sections 12, 13, 14 & 15 of the Constitution of the Peoples’ Democratic Party (amended in 2017) and the supremacy of the said Constitution over its members, including the different levels of party organization, bodies and organs, the 2nd Defendant cannot operate outside its Party Constitution in the conduct of the Anambra State Congress, by derogating from the List of already inaugurated Party Officers and Delegates that emerged from the Anambra PDP Congresses, respectively conducted on 28th November, 2017 and 1st December,

2017, and validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report.
4. AN ORDER compelling the Defendants, jointly and severally, in the conduct of Anambra State Congress and all elections, to recognize, support, regard and only use the List of Party Officers and Delegates that emerged from the Anambra PDP Congresses, respectively conducted on 28th November, 2017 and 1st December, 2017 under the supervision of Sir Chukwudi Umeaba, validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report.
5. AN ORDER for the 2nd Defendant to forthwith conduct the Anambra State Congress, for the purpose of electing State Officers, being the only outstanding phase, using only the List of Party Officers and Delegates that emerged from the Anambra PDP Congresses, respectively conducted on 28th November, 2017 and 1st December, 2017 under the supervision of Sir Chukwudi Umeaba, as validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report.

AN ORDER of perpetual injunction, restraining the 1st Defendant, including the 2nd Defendant, from monitoring, supervision and or observing any Anambra PDP State Congress and all elections, if the List of Party Officers and Delegates thereof are not the ones that emerged from the Anambra PDP Congresses, respectively conducted on 28th November, 2017 and 1st December, 2017, under the supervision and authentication of Sir Chukwudi Umeaba, as validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government Appeal Panel Report.The said Originating Summons was supported by a 14-paragraphed affidavit deposed to on 22nd June, 2020. Parties also filed various counter affidavits, except the 3rd respondent who said that he was not participating in the proceedings.The 1st respondent joined issues with the appellant by filing a 2 paragraphed counter affidavit deposed to on the 25th June, 2020. The 2nd respondent’s 44-paragraphed counter affidavit was filed on 24th June, 2020. The 4th respondent filed a 5-paragraphed counter affidavit with Exhibits A, B, C and D attached thereto. The 5th – 22nd respondents

filed a 26-paragraphed counter-affidavit on the 29th June, 2020, while the 23rd to 24th respondents filed a 53-paragraphed counter-affidavit on the 30th June, 2020 with Exhibits A1 & A2, B, C, D and E. The 23rd and 24th respondent also filed a Notice of Preliminary Objection on the competence of the suit. They prayed the trial Court to strike out the suit or dismiss same.

The trial Court in a holistic consideration of the suit as contained in its judgment delivered on the 21st day of September, 2020, dismissed the suit for being statute-barred.

Dissatisfied with the said judgment of the trial Court, appellants filed two Notices of Appeal on the 29th September, 2020 and another one on the 13/10/2020, but chose to argue the one filed on the 29th September, 2020. The records were transmitted to this Court on the 19th October, 2020.

The parties filed and exchanged their respective briefs of argument.

The appellants distilled two issues for the determination of this appeal in the appellants’ brief of argument filed on the 28th October, 2020. The issues are:
1. In view of the peculiar facts and circumstances of this case,

whether it was right for the trial Federal High Court to dismiss the Suit, on the ground that same had become statute barred, by virtue of Section 285(9) of the 1999 Constitution (as amended by the 4th alteration). (Ground 1).
2. Being a Court of first instance, and having regard to the peculiar facts of the case, whether the trial Federal High Court was right not to have decided the substantive matter, for this noble Court to have the benefit of an appellate review. (Ground 2).

In response, counsel for the 1st respondent, adopted the two issues for the determination of this appeal as submitted by the appellants.

Counsel for the 2nd respondent filed 2nd Respondent’s Notice which is incorporated at pages 5 – 14 of the 2nd Respondent’s Brief of Argument filed on the 10th November, 2020, counsel for the 2nd respondent also adopted the two issues for the determination of this appeal as submitted by the appellants.

The 3rd respondent in his own brief of argument filed on the 5th November, 2020 also distilled a sole issue for the determination of this appeal. The 3rd respondent attached the 3rd Respondent’s Notice to his

brief. The 3rd Respondent’s Notice was for the Court to affirm the judgment of the trial Court on other grounds. The sole issue for determination as distilled by the 3rd Respondent reads:
Whether the appellants’ suit at the Court below is statute barred, res judicata and tantamount to the Court below sitting on appeal against the final decision of a Court of coordinate jurisdiction.

Counsel for the 4th respondent adopted the two issues for the determination of this appeal as submitted by the appellants in his brief of argument filed on 11th November, 2020.

Equally, counsel for the 5th to 22nd respondents also adopted the two issues for the determination of this appeal as submitted by the appellants in his brief of argument filed on the 6th November, 2020.

Counsel for the 23rd and 24th respondents submitted three issues for determination of this appeal in the 23rd and 24th respondents’ joint brief of argument filed on the 9th November, 2020. The three issues are:
1. Whether the lower Court was right in its judgment dismissing the case of the appellants for being statute barred and held that the cause of action is a

pre-election as provided under Section 285(9) of the 1999 Constitution of Federal Republic of Nigeria (4th Alteration).
2. Whether upon arriving at the conclusion that the suit is statute barred and does not exist ab initio, the learned trial judge was right when he held that there is no foundation to consider other issues on the matter and/or proceed to make findings on the substantive suit.
3. Whether Section 15 of the Court of Appeal Act, Cap C36 LFN 2004 on the power of the Court of Appeal to have full jurisdiction over the whole proceedings of the trial Court as if the proceedings had been instituted in the Court of Appeal as Court of first instant to re-hear the matter is applicable in the instant Appeal.

Appellants’ Reply Briefs to the 1st respondent was filed on the 11/11/2020, that of the 2nd respondent was also filed on the 11/11/2020. That of the 3rd respondent was filed on the 09/11/2020. Equally, the appellants’ reply brief to the 4th respondent was filed on 12/11/2020 while that of the 5th to 22nd respondents was filed on 09/11/2020 and that of the 23rd – 24th respondents was filed on the 11/11/2020.

2ND AND 3RD RESPONDENTS’ NOTICES:
On Thursday, the 12th day of November, 2020, when this appeal came up for hearing, counsel for the 2nd and 3rd Respondents moved their respective Respondents’ Notices as incorporated in their respective briefs of argument. In view of this counsel for the 2nd respondent distilled a sole issue for the consideration of the 2nd Respondent’s Notice. The two Respondents’ Notices were anchored on a five grounds each, see pages 5 and 6 of the 2nd Respondent’s Brief as well as pages 5 and 6 of the 3rd Respondent’s Brief of Argument. Counsel for the 2nd Respondent distilled a sole issue for the determination of the 2nd Respondent Notice while the 3rd Respondent did not distill any issue. The 2nd Respondent’s issue is:
Whether the Honourable Trial Court ought not to have struck out and or dismiss the case of the appellants on the ground that the subject matter of the claims bordered on the internal affairs of the 2nd respondent and not justiciable and cannot be accommodated under Section 87(9) of the Electoral Act 2010, (as amended) and or under Section 251(1) of the Constitution of the FRN 1999, (as amended).

Counsel for the 2nd and 3rd Respondents while arguing this issue urged the Court to affirm the decision of the lower Court and dismiss the case on the ground that the case is not justiciable as the subject matter of the case borders on the internal affairs of a political party which is outside the jurisdiction of Courts. Counsel posited that they support the decision of the trial Court dismissing the case of the appellants but that the case of the appellant ought to have been dismissed on the ground that the complaints which bordered on the internal/domestic affairs of the 2nd respondent were political in nature over which the Courts do not have the vires to interrogate. He relied on the case of APGA v. Anyanwu (2014) 7 NWLR (Pt. 1407) 541 @ 551 – 550. He invites the Court to the question for determination as contained at pages 5 – 7 of Volume 1 of the records. He maintained that the claims of the appellants are political in nature and are therefore within the domestic domain of the 2nd respondent and so outside the jurisdiction of this Court. He cited PDP v. APC & Anor. (2019) LPELR – 48497 (CA).

That the instant case falls under membership of the party and election of officer of the 2nd respondent which this Court and the Supreme Court have held are matter within the domestic purview of the political party concern and outside the jurisdiction of Court. That a political party is a voluntary association or organization whose members are bound by its modus operandi and are at liberty to leave where it displeases them. He relied on Musa v. PRP (1981) 2 NELR 763 at 769. He urged the Court to resolve this issue in favour of the 2nd respondent and affirm the decision of the lower Court dismissing the suit on the ground that the case is not justiciable as the subject matter of the case borders on the internal affairs of a political party which is outside the jurisdiction of Courts.

Counsel for the 3rd respondent urged the Court to strike out the appellants’ appeal.

On the issue of law, counsel for the appellants submitted that the breach complained of by the appellants is beyond the limited walls of the PDP Constitution. That in the face of the patent breach by the 2nd respondent of its Constitution, that the appellants reserve the right by virtue of

Section 6 and 36 of the 1999 Constitution (as amended) to seek remedy in Court. He posited that there is no merit in the submissions in support of the Respondent’s Notice. That it is liable to be rejected. He urged the Court to reject same.

The respondents’ notices filed are calling on this Court to order that the trial Court’s decision be altered to order a dismissal of the case for two other reason other than that the case is statute barred. The two alterations offered in the notices are:
(a) Dismissal because the issue relates to the domestic affairs of a political party and the Court lacks jurisdiction to look into it.
(b) Dismissal on ground of estoppel per res judicata.

From the record before this Court these two issues were presented before the lower Court. The lower Court as a result of its decision that the matter was statute barred did not go into the merit of the case or consider other foundational issues raised. Since these two issues were not given consideration to by the trial Court, it will certainly not be in the interest of justice to think of making them alternatives to the decision of the lower Court.

The issues therein raised has not as at now been resolved, so the stage is not ripe to have that considered. The two respondents’ notices are therefore, inchoate and must be discountenanced.

MAIN APPEAL:
The issues distilled by the parties are more or less same. I shall adopt the two issues as distilled by the counsel to the appellants in determining this appeal. I shall also consider the 3rd Respondent’s Notice together with the issues. I now start with issue one.
Issue One:
This issue is – In view of the peculiar facts and circumstances of this case, whether it was right for the trial Federal High Court to dismiss the Suit, on the ground that same had become statute barred, by virtue of Section 285(9) of the 1999 Constitution (as amended by the 4th alteration).

Counsel for the appellants while arguing this issue explained different categories of pre-election matters under Sections 285(14)(a), 285(14)(b) and 285(14)(c). Counsel invites the Court to find that the instant case is not one that can be pinned or situated under any of the categories or circumstances listed in

Section 285(14) of the 1999 Constitution (as amended under 4th alteration). He drew the attention of the Court to pages 3, 4 & 5, Vol. 3 of the Printed Record which contains the questions for determination and reliefs sought in the Amended Originating Summons. That there is nowhere in any of the said claims, where the appellants complained of the conduct of the said congress, wherewith Section 285(14)(a) would have applied; or anywhere the appellants challenged the actions of INEC during the conduct of the said congress for Section 285(14)(b) to have been applicable. Counsel expressed surprises on while the trial arrived at the conclusion that the matter had become statute barred by virtue of Section 285(14) of the 1999 Constitution (4th alteration). That the appellants took time to explain the distinction to the lower Court and yet the lower Court did not recognize the appellant’s submissions in review of its judgment. He argued further the trial judge admitted himself to prevarications. That in one breath, he gave a detailed review of appellants’ submissions while on the flip side, he found that appellants made no submission in opposition to the objection. That this inconsistent position

of the Court, directly influenced his inability to understand the peculiar nature of the appellants’ case. Counsel reproduced the reliefs sought in the instant case by the appellants and argued that there is nothing in the reliefs which complain or contest the conduct of the said congress of 28th November, 2017 and 1st December, 2017. That if the trial Court had understood the case of the appellants, he would not have adopted and applied the decision in APC v. Ibrahim Umar & Ors. (2019) LPELR – 47296 (SC), to the facts of this case. He submitted that the trial judge was wrong as found at pages 28 & 29 of the Judgment (i.e pages 2219 & 2220, Vol. 3 of the printed record.). He referred the Court to the recent decision in Appeal No: CA/A/CV/658/2020 between Emmanuel Solomon & Anor. v. PDP & Anor. He prayed the Court not to depart from this decision. He cited the cases of Chief Dominic Onuorah Ifezue v. Livinus Mbadugha & Anor. (1984) LPELR – 1437 (SC) at 25, Mike Omhenke Obomhense v. Richard Erhahon (1993) LPELR – 2191 (SC) at 28, Rein v. Lane (1867) 2 LR O.B. 144 at 15 and Savannah Bank (Nig.) Ltd v. Ajilo (1989) 1

NWLR (pt. 97) at 326. He urged the Court to resolve this issue in favour of the appellants and accordingly set aside the lower Court’s decision on the applicability of Section 285(14) of the 1999 Constitution (as amended by the 4th alteration) and the decision in APC v. Ibrahim Umar & Anor. (supra).

In response, counsel for the 1st respondent while arguing this issue posited that the Constitution of the Federal Republic of Nigeria, 1999 as amended by the 4th Alteration Act, 2017 provides the time limit for filing of pre-election matter. He referred the Court to the case of Abubakar v. Nasamu (2012) 17 NWLR (Pt. 1330) at 459. He submitted that evident from the reliefs sought in the Originating Summons, that the appellants felt aggrieved by alleged non-recognition of their delegates hence they sought for a remedy from the Court, hence this suit. He stated that the finding of the trial Court was based on the decision of the Supreme Court in the case of APC v. Umar (2019) 8 NWLR (Pt. 1675) at 565 Pars. F – H. Counsel stated that from the questions submitted for determination, that the appellants as plaintiffs prayed for determination of the

issue as to whether the 1st respondent ought not to recognize, accept, regard and relate with the delegates that emerged from the congress held on 28th November and 1st December, 2017 respectively. He posited that Courts have held that any activity preparatory to an election is a pre-election matter. He relied on Salim v. CPC (2013) 6 NWLR (Pt. 1351) 501 at 524 to 525, Para. H – C, Olley v. Tunji (2013) 10 NWLR (Pt. 1362) at 327 and Makanjuola v. IGP (2020) 13 NWLR (Pt. 1741) at 301 Para. F – G. Counsel reproduced the finding of the trial Court at page 2217 of Volume III and page 2218 of same Vol. III of the record of appeal and submitted that the exertion presents the position of the law as the letters and spirit of the provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended by 4th Alteration, Act 2017). He maintained that once a cause of action is designated as a pre-election dispute, (as in the instant case,) is not filed within time allowed, that it is the end of it as the law does not allow for extension of time and it becomes statute bared. He cited Saki v. APC (2020) 1 NWLR (Pt. 1706) 515 at 543

paras. F – G, Umeriah v. APGA (2020) 4 NWLR (pt. 1713) at 16 – 17 Para. E – G, Toyin v. PDP (2019) 9 NWLR (Pt. 1676) at 60, Garba v. APC (2020) 2 NWLR (pt. 1708) at 378 Para. D – E, Amadi v. INEC (2013) 4 NWLR (Pt. 1345) at 595 and Garba v. Tsoida (2020) 5 NWLR (Pt. 1716) at 1. He opined that the trial Court at page 2220 of Vol. III of the records correctly captured the time of accrual of cause of action. That the law has tied the hands of the Court from entertaining the case based on effluxion of time. He urged the Court not to disturb the finding of the trial Court and resolve this issue against the appellants.

Counsel for the 2nd respondent, while arguing this issue submitted that it was right for the trial Court to dismiss the suit on the ground that same had become statute barred by virtue of Section 285(9) of the 1999 Constitution (as amended by the 4th Alteration). That the trial Court considered the entire relevant facts placed before it before arriving at the inevitable conclusion that the appellants’ action is statute barred having been instituted outside the time prescribed by the

4th Alteration, No. 21 Act 2017 Section 285 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Counsel reproduced reliefs 1 and 2 of the appellant as contained in pages 5 – 7 of the Volume of the records and posited that having settled that this suit is a pre-election matter, that the law requires that it shall be filed not later than 14 days from the date of occurrence of the event, decision or action complained of in the suit. He cited Akpamgbo-Okadigbo & Ors. v. Chidi & Ors. 2015 LPELR 24564 (SC), Okechukwu v. INEC (2014) 17 NWLR (Pt. 1436) 255, PDP v. INEC (2014) 17 NWLR (Pt. 1437) 325, Amb. Past Ubong Ikpe & Ors. v. Ndem, Olatunji v. Olakunde & Ors. (2011) LPELR 4734 (CA). He opined contrary to appellants’ contention that the decision of this Court in Appeal No: CA/ABJ/CV/658/2020 Between Emmanuel Solomon & Anor. v. PDP & Anor., supports their contention that the facts and ratio in this case on all fore is an internal affair of the 2nd respondent which this Court and other Courts lack the requisite vires to interrogate. He urged the Court to resolve this issue in favour of the 2nd respondent and dismiss this appeal on the ground or

on the ground that the subject matter of the suit being internal affairs of a political party is non-justiciable.

Counsel for the 3rd respondent while arguing his own sole issue submitted that the trial Court was right when it applied the Supreme Court’s interpretation of pre-election matter as proffered by the Supreme Court and Section 285 (14) of the 4th Alteration Act and held that the appellants’ suit at the lower Court was stated barred because it is a pre-election matter. He cited APC v. Umar (2019) 8 NWLR (Pt. 1675) 564 at 575 (paras. G – H). That the appellants ought to have filed their suit within 14 days from 20/11/2017 and 01/12/2017 respectively and therefore their suit at the trial Court is statute barred.

On the issue of res judicata, counsel posited that the suit of the appellants at the trial Court is res judicata and that a successful plea of estoppel per rem judicatam goes to the jurisdiction of the Court and robs the Court of its jurisdiction to entertain the matter. He cited Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) page 534 at 554 (paras. G – H). That the suit of the appellants at the trial Court is caught by

the doctrine of Estoppel Per rem Judicatam as all the parties in the said judgment are members of PDP and PDP itself and all the parties in this Appeal are members of PDP and are privies to themselves therefore, are bound by the said judgment of FCT High Court which has decided all the issues in the appellants’ suit and constitute an absolute bar to the appellants’ suit at the Court below. He cited Aminu v. Hassan (2014) 5 NWLR (pt. 1400) 287, 294 and Adeyefa v. Bamgboye (2014) 11 NWLR 9pt. 1419) 520, 525 (Paras. D – E). He posited that the judgment of the FCT High Court given in favour of the 3rd respondent as extant, subsisting and has not been set aside by any competent Court of appellate jurisdiction. That it must be obeyed. That all the parties in the previous or earlier case need not be parties in the latter case before a plea of res judicata can arise, raised and be sustained as long as even one out of the conditions is satisfied. He cited Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499 (Paras. A – B), Etim v. Obot (2010) 12 NWLR (Pt. 1207) 108 125 (paras. F – H).

Counsel further contended that the trial Court cannot sit on

appeal against the final judgment of the FCT High Court which is a Court of coordinate jurisdiction. He maintained that a Court of coordinate jurisdiction has no constitutional power to sit on appeal against the final judgment of another Court of coordinate jurisdiction which is what the appellants wanted the trial Court to do. He relied on Cole v. Jibunoh (supra) at pages 521 (paras. C – H). He urged the Court to resolve the 3rd respondent’s lone issue in his favour.

Counsel for the 4th respondent while arguing this issue, reproduced Section 285 (9) of the 1999 Constitution (as amended by the 4th Alteration) and submitted that the cause of action arose from a pre-election matter. He posited that the Ward and Local government congress, was in preparations or processes embarked upon by PDP in preparation for an election. That following from the foregoing, that the suit of the appellants at the trial Court was duly caught by the provisions of Section 285 of the 1999 Constitution (as amended) and was already statute bared as at the date the action was filed by the appellants as plaintiff in 2019. He maintained that the trial Court was right to

have dismissed the suit which was clearly an empty shell. He cited INEC v. Ogbadibo Local Government & Ors. (2015) LPELR – 24839 (SC). He urged the Court to resolve this first issue against the appellants and uphold the judgment of the trial Federal High Court dismissing the suit on the ground that same was statute barred having been caught by the provisions of Section 285(9) of the 1999 Constitution (as amended).

Counsel for the 5th – 22nd respondents while arguing his own issue one, submitted that the trial Court was right when it held that the suit is statute barred by the provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration). He relied on the cases of APC v. Ibrahim Umar & Ors. (2019) LPELR – 47296 SC, Saki v. APC (2020) 1 NWLR (Pt. 1706) and urged the Court to affirm the judgment of the trial Court and dismiss the appeal.

Counsel for the 23rd and 24th respondents while arguing his own issue one as submitted, posited that the appellants erroneously contended in this appeal that this suit is not a pre-election matter which is confined within the mandatory provision of

Section 285(9) of the 1999 Constitution of Federal Republic of Nigeria (4th Alteration) Act 2017. Contrary to the submission of the appellants’ counsel, he argued that this appeal revolves only and arises from the congress of the 2nd respondent in Anambra State. That the crux is clearly an agitation, questions and complaints arising solely from the said congress which is a pre-election. That the 23rd and 24th respondent contended at the trial Court that being a pre-election, that the 1st respondent monitored the said congress in line with Section 86(1)(2) of the Electoral Act, 2010 and issued a report for the election. Counsel reproduced Section 285(14) of the 1999 Constitution (4th Alteration) Act 2017, as per the meaning of pre-election matter. He relied on the case of Sonuga v. Onanuga & Ors. (2019) LPELR-49421 (CA) and Uboh v. Ali (2019) LPELR – 47575 (CA). He maintained that every matter by an aspirant or a political party, arising from the conduct of congress election of a political party as in the instant case, is a pre-election matter. That this Court and every other Courts are by the principle of stare decisis bound in the ratio of

this case. He cited Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254 at 278.

On the reliance of the appellants on the case in Appeal No: CA/ABJ/CV/658/2020 Between Emmanuel Solomon & Anor. v. PDP & Anor., delivered on the 29th September, 2020 by this Court, in arguing that the instant appeal is not a pre-election matter, counsel for the 23rd and 24th respondents argued that the two matters differs as the later bothers on Ward Congress in Taraba State. He stated further ingredients that distinguished the two cases at pages 20 – 21 of the 23rd and 24th respondents’ brief of argument and urged the Court to resolve this issue in favour of the 23rd and 24th respondents.

The crux of this issue is whether the dismissal of the suit by the lower Court on the ground that same had become statute barred by virtue of Section 285(9) of the 1999 Constitution (as amended by the 4th Alteration) was right. The lower Court from the facts before this Court took that decision after concluding that the case was a pre-election matter as set by the case of APC v. Umar (2019) 8 NWLR (Pt. 1675) 564.

This case had as its backbone, the provision of Section 285 (14) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The decision is one of the decisions of the Supreme Court dealing directly with what is a pre-election in election jurisprudence.

It is apposite to state at this point that pre-election disputes have over the years been mildly or tensionless pursued until the advent of the FOURTH ALTERATION amending Section 285 of the 1999 Constitution. By Section 285(9) thereof, the Constitution as amended timed pre-election matters coming to Court subsection (9) of Section 285 of 1999 Constitution as altered provides as follows:
“(9) Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
This provision of the Constitution is plain and very clear. It is trite law that once the words used in the Constitution are clear and free from ambiguity, they should be given their natural meaning without any additives or embellishments. Words used are to be given their ordinary meaning without resorting to any

extrinsic aid. See Assams & Ors v. Ararume & Ors. (2016) 1 NWLR (Pt. 1493) 368, Olafisoye v. FRN (2004) 4 NWLR (Pt. 864) 580.
In the instant case, Section 285(9) of the Constitution (ibid) is not of general application to all election disputes. It relates only to pre-election disputes. It is time barred pre-election disputes. The time set for action to be taken in pre-election matters is 14 days. This signifies that any aggrieved person in pre-election maters must take action within 14 days that the cause of action arose.

The question posed in the instant case is whether from the facts of this case, the case is a pre-election matter. The lower Court found that on the authority of APC v. Umar (supra) and Section 285(9) of the 1999 Constitution (as amended) the instant case is statute barred. Let me begin here from the provision of Section 285(14) of the 1999 Constitution (as amended) by the Fourth Alteration. This Section specifically states:
(14) For the purpose of this section, “pre-election matter” means any suit by –
(a) an aspirant who complaints that any of the provisions of the Electoral Act or any 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 complied 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 complaints that the provision of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied 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, decision or activities of the Independent National 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 complied 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.”
By this definition, it is excellently clear that pre-election matters relate in all ramifications to causes before election with the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and guidelines of political parties for conduct of party primaries in respect of selection or nomination of candidates for an election. (b) Matters/Suits challenging actions, decision or activities of INEC in respect of an aspirant’s participation in an election or any complaint of non-compliance with the law regulating elections in Nigeria in respect of Selection or nomination of candidates and participation in an election. (c) Actions or Suits by a Political Party challenging decisions of INEC disqualifying its candidate, a complaint of non-compliance by INEC of laws in respect of the nomination of candidates of the political party for an election, timetable for an election, registration of voters and other activities of INEC in respect of preparation for an election.

I have taken time to read again and again the Supreme Court decision in APC v. Umar (supra). That decision is not a magic wand aimed at converting every dispute into a pre-election dispute neither is the decision intended to alter the meaning and intendment of what a pre-election is in the Constitution. The decision is based on the definition of pre-election in Section 285 (14) of the Constitution Sanusi, JSC, who wrote the lead judgment to which others concurred held at page 575 paras. F to H of the reports report as follows:
“I think it would be apt to say that the word “election” means the process of choosing by popular votes, a candidate for political office in a democratic government. See Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) 169, Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241. 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. To my mind therefore, the process or exercise embarked upon by a political party such as congress, nomination exercise etc are all pre-election matter or exercise. The instant suit being an exercise before or prior to election is therefore caught up by or is within the purview of Section 285(14) of the Constitution (4th Alteration Act), 2017.
Furthermore, his Lordship aptly explained at page 576 (para. B – D) as follows:
I am inclined to agree with the submission of the learned counsel for the respondents that the exercise involved in the congress covers or includes activities which are or should be done preparatory to an election, be it for the selection of officers to be members of the executive of the party or as processes to elect or to prepare and qualify those elected at the congress to ultimately vie for elective offices to represent the party in the legislature at either local government, state or at federal level. Such exercises therefore to my mind are pre-election exercise or matter to which the provisions of Section 285(14) squarely applies. (Underlining mine).
From the foregoing, it is very clear that the

decision of the Supreme Court in APC v. Umar (supra) that the exercise involved in the political party congress that are pre-election are those exercises involved in the congress which cover or include activities which are or should be done preparatory to an election which may include selection of officers to be members of executive of the political party or as processes to elect or to prepare and qualify those elected at the congress to ultimately vie for elective offices to represent the party in the Legislature at either Local Government, State or Federal level.
What the Court must look out for in every case of this nature is the evidence or facts that the congress of the political parties in dispute are those done preparatory to an election or preparing candidates to ultimately vie for elective offices to represent the political party in the election. It would therefore, with due respect be a verbiage of monumental error to surreptitiously navigate an otherwise routine political party congress authorized by Section 223(1)(a) of the 1999 Constitution of Nigeria as a pre-election issue.
In the instant case, the question and reliefs submitted for

determination by the lower Court have nothing to do with any exercise that was preparatory to an election. In the same APC v. Umar (supra), the Supreme Court relied on the cases of Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) 169 and Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241 to aptly define the word “election” to mean “the process of choosing by popular votes, a candidate for political office in a democratic government office in a democratic government.”
In the instant case, the lower Court in its judgment, found at page 2218 of the Record of appeal, as follows:
“It cannot be denied that this case is predicated on Anambra PDP Congress, respectively conducted on 28th November, 2017 and 1st December, 2017 (validated by the Senator Grace Bent Ward Congress Appeal Panel Report and Barrister Ukpai Ukairo Local Government, State Caretaker Committee) led team which they seek to be proclaimed going by the PDP Electoral Guidelines for Primary Election, as the authentic/lawful Congress, from which party Delegates and Officers ought to have emerged and be recognized, for conduct of the Anambra State Congress.”

It is therefore clear and certain that this instant case is indexed in the already conducted PDP Congress, conducted under Section 223(1)(a) of the 1999 Constitution (as amended), Section 85 of the Electoral Act 2010 (as amended); and Section 12, 13, 14 and 15 of the Constitution of the PDP. The cause of action in this instant case is clearly different from that in APC v. Umar (supra). It is trite that cases are authorities for what they decided. In the case of Adesokan & Ors v. Adetunji & Ors. (1994) 5 NWLR (Pt. 346) 540, Onu, JSC, held on the nature of the doctrine of judicial precedent/stare decisis as follows:
“…Stare decisis et non quela movere, meaning literally – To stand by what has been decided and not to disturb and unsettled things which are established. Stare decisis thus means to abide by former precedents where the same points come again in litigation. Stare decisis presupposes that the law has been solemnly declared and determined in the former case. It thus precludes the Judge of the subordinate Courts from changing what has been determined. In other words, they should keep the scale of justices even and steady not

liable to waiver with every Judge’s opinion.” “Under the doctrine of stare decisis, lower Courts are bound by the theory of precedent. Now a precedent is an adjudged case or decision of a higher Court considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law. Courts attempt to decide cases on the basis of principles established in prior cases. Thus, prior cases which are close in facts or legal principles to the case under consideration are called precedents.”
From the nature, facts and circumstances of the instant case, the decision of the Supreme Court in APC v. Umar (supra) is not applicable to the instant case.
The learned trial judge was in clear error in holding that the case of APC v. Umar (supra) is applicable to the instant case. The instant case is not a pre-election matter. The lower Court ought to have heard the case on merit. Issues one is therefore resolved in favour of the appellants.

Issue Two:
This issue is – Being a Court of first instance, and having regard to the peculiar facts of the case, whether the learned trial Federal

High Court was right not to have decided the substantive matter, for this noble Court to have the benefit of an appellate review.

The bone of contention of the counsel for the appellants in this issue, is that the trial Court ought to have considered the suit in its merit after it resolved the Preliminary Objection against the appellants. Counsel argued that the suit being a contentious one and since pleadings had been closed by parties at the lower Court, he argued that this Court need to invoke Section 15 of the Court of Appeal Act, 2004 and determine the questions raised by the appellants on its merit. He relied on Paul Edem v. Canon Balls Ltd & Anor. (2005) LPELR – 1007 (SC) at 26 paras. C – E, and William Angadi v. Peoples Democratic Party & Ors. (2018) LPELR – 44375 (SC) at 34 – 37, paras. F – C. He further reproduced the said questions for determination and posited that in the circumstance that the respective Congresses conducted on 28th November, 2017 and 1st December, 2017 led to the emergence of the party officers and delegates in PDP – Anambra. That this suit urged the Court to determine the propriety

or otherwise of any action or step, designed to pushover these party officers and delegates, even when they have been inaugurated. That despite the suspension of the State Party Congress slated for 4th December, 2017 that the National Secretary of the 2nd respondent – Senator Umar Ibrahim Tauri, CON, mandated the National Vice- Chairman (South East) to inaugurate the Ward and Local Government Areas elected officers of the party and that they were inaugurated. That the relationship between the appellants and the 2nd respondent is intended to be regulated by the Party Constitution. He referred to LAC v. AAN Ltd (2006) 2 NWLR (Pt. 963) 49.

Counsel further submitted that the contemplation of Sections 222, 223 & 224 of the 1999 Constitution (as amended) is that a Political Party is bound by its Party Constitution and cannot operate outside it. He cited PDP v. Abubakar (2007) 3 NWLR (Pt. 1022) 515 at 542, para. G, Engr. Charles Ugwu & Anor. v. Senator Ifeanyi Ararume & Anor. (2007) LPELR – 3329 (SC), Nika Fishing Co. Ltd v. Lavina Corp (2008) 16 NWLR (Pt. 1114) 509 and LAC v. AAN Ltd (2006) (supra). That from the foregoing

submissions and argument that the respondents are bound to ensure that in the conduct of State Congress for the 2nd respondent in Anambra State including related elections, that only the list of party officers and delegates that emerged from the respective Congresses conducted on 28th November and 1st December, 2017, can be used. That any other list for the said purpose will be unlawful. Counsel in the final analysis submitted at this point that the intervention of this Court is required for determination of the said questions in favour of the appellants and in the interest of justice. He prayed the Court that all the questions set out are determined in their favour and the reliefs sought in the Amended Originating Summons are also granted. He urged the Court to allow the appeal, set aside the judgment of the trial Court delivered on 21st September, 2020 and accordingly grant the reliefs sought in the Amended Originating Summons, under its powers in Section 15 of the Court of Appeal Act, 2004.
Counsel for the 1st respondent, while responding to this issue submitted that the request of the appellants for this Court to invoke the provision of

Section 15 of the Court of Appeal Act, 2004, will still yield the same result as the question that has to be decided will still be that of jurisdiction. That the refusal to determine the case on the merit after finding that it has no jurisdiction is of no consequence as long as miscarriage is not occasioned as in the instant case. He cited Garba v. APC (supra) at Para F – E. He stated that the appellants have not shown any evidence of perversity in the finding of the trial Court that it lacks jurisdiction to entertain the case. That the said decision remains sacrosanct. He relied on Kraus Thompson Org. Ltd v. Unical (2004) 9 NWLR (Pt. 879) 631 at 657 Para F – G, Tarzoor v. Ioraer (2016) 3 NWLR (Pt. 1500) 463 at 522 para. A – D, Akeredolu v. Akinremi (No. 3) (1989) 3 NWLR 9Pt. 108) at 164, Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374 at 421 Para. G – H. Counsel reproduced paragraphs 2.3.15 to 2.3.16 at pages 24 to 25 of the appellants’ brief of argument and argued that the said paragraph is only true to the extent that the 1st respondent is empowered by law to monitor the activities of the 2nd respondent but that the said power did not extend to

refusal to accept or recognize the list of party officials presented to it by political parties including the 2nd respondent. He urged the Court to resolve this issue against the appellants.

Counsel for the 2nd respondent, on this issue, submitted that the trial Court was right not to have decided the substantive mater in view of the success of the preliminary objection. That when the jurisdiction of Court is challenged, that the only jurisdiction vested in the Court is to decide whether it has jurisdiction. He cited Olateju v. Comm., L & H., Kwara State (2010) 14 NWLR (Pt. 1213) 297 @ 306 paras. C – D, Ibrahim v. Fulani (2010) 17 NWLR (Pt. 1222) 241 @ 256 Paras F – B. That the power of the Court of Appeal to hear a matter as a Court of first instance is not a large. That such power is predicated upon the trial Court having jurisdiction to entertain the case and to grant the reliefs sought by the appellants. That the trial Court has no jurisdiction to entertain the matter, as in the instant case, that the Court of Appeal by implication would be devoid of jurisdiction to entertain the case as well. He relied on

Agbakwuru & Anor. v.Igbokwe & Anor (2012) LPELR – 7948 (CA), Adams v. Umar (2008) LPELR – 3591 (CA) and Ihedioha v. Okorocha (2016) 1 NWLR (Pt. 1492) 147. He urged the Court to dismiss the appeal for lacking in merit.

Counsel for the 4th respondent, on this issue, relied on the case of INEC v. Ogbadibo Local Government & Ors. (2015) LPELR-24839 (SC) and argued that when a matter is statute barred, that the Court automatically lacks jurisdiction. That going ahead to consider the merit of the case by a Court who had held that it lacks jurisdiction will amount to an effort in futility, no matter how well conducted. That there is no basis for the appellant to seek to move this Court to invoke Section 15 of the Court of Appeal Act, 2004, where there is no judgment on the merit before this Court to enable the application of Section 15 of the Court of Appeal Act. He urged the Court to resolve this issue 2 against the appellants and uphold the decision of the trial Court while dismissing this appeal.

Counsel for the 5th – 22nd respondents submitted that the trial Court was right to have rescinded from deciding the substantive issue before him.

The application for this Court to review is only limited since the judgment was jurisdictional. That the trial Court must have jurisdiction before it would dabble into determination of the substantive issue. He cited Inakoju & Ors. v. Adeleke & Ors. (2007) Vol. 2 MJSC1. He maintained that the trial Court was right and that this Court lacks the power to review the substantive matter since jurisdiction issues is the substratum of the decision.

Counsel for the 23rd and 24th respondents while arguing its issue two and three as submitted, posited that the Originating Summons of the appellants was heard together with the Preliminary Objection of the 23rd and 24th respondent by the trial judge and that on the final judgment, the trial Court clearly stated that issue six of the Preliminary Objection being a constitutional issue, if resolved against the appellants would end the suit in limine. That upon sustaining the Preliminary Objection of the 23rd and 24th respondent, that the trial Court found that there is no foundation to address other issues of the objection and the substantive suit since the action is statute barred and does not exist ab initio.

Contrary to the contention of the appellants, counsel stated the trite position of the law that where a preliminary objection is raised to the jurisdiction of Court as in the instant case, that the Court will take the objection together with the substantive suit and if the objection succeeds, it will terminate the suit in limine. That the Court can only proceed to deliver judgment in the substantive suit where the objection failed. He cited A.G. Lagos State v. A.G. Federation & Ors. (2014) LPELR – 22701 (SC), Zenith Bank & Anor. v. Olimpex (Nig.) Ltd (2018) LPELR – 45573 (CA), and Iwo & Ors. v. UBA Plc (2017) LPELR – 43048 (CA). He maintained that upon termination of the suit in limine before the lower Court, that the judge is not enjoined to proceed with the substantive suit. He urged the Court to so hold.

Counsel further argued that Section 15 of the Court of Appeal Act, Cap C36 LFN 2004, enabling this Court to exercise its special trial jurisdiction is inapplicable in the instant appeal. That the powers of this Court is not invoked without cause. He pointed out that apart from the objection bothering on

Section 285(9) of the 4th Alteration Act 2017 which was the jurisdictional issue considered by the lower Court, that there are other germane jurisdictional features not considered by the lower Court upon which the lower Court was invited to decline jurisdiction over the appellants’ Originating Summon on other grounds which also affected the jurisdiction of this Court founded under Section 15 of the Court of Appeal Act. He submitted that the instant appeal does not fall within the spherical context of the narrowed circumstances in which Section 15 of the Court of Appeal Act applied. He urged the Court to refuse the appellants’ call for this Court to assume its special trial jurisdiction under Section 15 of the Court of Appeal Act in the instant appeal on the ground that the instant appeal is outside the corridor of cases in which this may invoke and apply Section 15 of the Act and that the appellants failed to show otherwise. He urged this Court to so hold and dismiss this appeal for lacking in merit.

Ordinarily, when the trial Court or this Penultimate Court of Appeal comes to the decision that a matter is statute barred, the Order to issue is a dismissal of the

Suit. However, in the interest of justice and fair play, the Court knowing that the case may go on appeal to the next appellate Court, it is conscionable and proper having regards to the nature and the exigencies of the case to look into the merit of the case.

In the instant case, arguments have been advanced for and against the deployment of Section 15 of the Court of Appeal Act. In fact, it is part of the relief of the appellant in the instant appeal that this Court should apply Section 15 of the Court of Appeal Act to look into the merit of the case filed at the lower Court. Section 15 of the Court of Appeal’s Act, 2004, provides as follows:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant an injunction which the Court below is authorized to make or grant and may direct any necessary

inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal, as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”
In the case of DEC Oil & Gas Ltd v. Shell Nig. Gas Ltd (2019) 14 NWLR (Pt. 1692) 273, the Supreme Court per Galinje, JSC, at page 303 (Paras E – G) held that:
The provision of Section 15 of the Court of Appeal Act is very clear as to the use of the powers of that Court. The power of the Court is to make order, necessary for determining the real issue in controversy in the appeal. The power clearly is not to strike out or dismiss an appeal in which the issues in controversy have not been fully determined.

The section also stipulates that the Court shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance.
This provision clearly means that whatever the Federal High Court was competent to do, the Court of Appeal is as well competent to do the same thing.
The law as in Section 15 has been well interpreted by many other decisions of the Supreme Court. In Ezeigwe v. Nwawulu (2010) LPELR – 1201 (SC), the Supreme Court per Onnoghen, JSC, (as he then was) held further as follows:
“In interpreting the above provision, this Court has, in the case of Obi v. INEC (2007) 1 NWLR (Pt. 1046) 465, Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227, Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply the following conditions must exist, to wit: (a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it”, (b) that the real issue raised by the claim of the appellant at the lower Court or trial Court must

be seen to be capable of being distilled from the grounds of appeal; (c) that all necessary materials must be available to the Court for consideration (d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and (e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.”
Section 15 of the Court of Appeal Act has its place in the circumstances listed in these cases. It cannot be pulled up in every situation. This Court has to cautiously deploy it in deserving cases.
The five conditions listed in the case of Ezeigwe v. Nwawulu (supra) are aimed at giving credibility to the process of trial and to ensure the expeditious disposal of the case or suit to meet the ends of justice rather than allow the parties to be left stranded in their pursuit of justice for lack of time. This is prime having regard to the fact that I have earlier held that the lower Court has jurisdiction and capacity to hear the case of the parties. I will therefore, not call in aid Section 15 to take over the duties of the trial

judge. I hold that the judgment of the lower Court be and it is hereby set aside. The matter will be reverted back to the trial Court to enable it hear the matter on merit.
The two respondents’ notices as filed by the 2nd and 3rd Respondents dealt with the issue of the domestic nature of the claim and the issue of res judicata. These two issues were raised at the trial Court. The trial Court did not resolve these foundational matters because of the erroneous decision that the claim was statute barred. It is therefore, not feasible for this Court to jump into the case and start looking into it. It is true that this Court is empowered under Section 15 of the Court of Appeal Act to hear some aspects of the case from the lower Court but that law did not attempt to turn this Court of Appeal into a trial Court or to sit and usurp the duties of the trial Judge. Since the merit of the case was not accessed by the trial Court, this Court cannot dabble into the merit of this case. It is in this respect that the Court will remit this case back to the lower Court to be heard on merit by another judge of the Court.

It is therefore my conclusion that there

is merit in this appeal. The Judgment of the lower Court in Suit No. FHC/ABJ/CS/1586/2019, delivered, on the 21st day of September, 2020 is hereby set aside.

The case is remitted back to the lower Court for hearing of the case on merit by another judge of the Court.
The Parties are to bear their respective costs.

PETER OLABISI IGE, J.C.A.: I agree.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother, STEPHEN JONAH ADAH, JCA and I am in complete agreement with the reasoning and resolution of all issues distilled for determination in this appeal.
I have nothing more to add and I abide by the orders made therein.

Appearances:

Ahmed Raji, SAN, with him, Adeola Adedipe, Esq. and W.A. Adeniran, Esq. For Appellant(s)

Abdulaziz Sani, Esq. – for 1st Respondent
Ochai J. Olokpa, Esq. – for 2nd Respondent
C.N. Nwagbo, Esq., with him, S.E. Ezeonwuka, Esq. – for 3rd Respondent
S.A. Tsokwa, Esq. – for 4th Respondent
Clement Ezika, Esq., with him, Gloria Ossai, Esq. – for 5th to 22nd Respondents
V.C. Ottaokpukpu, Esq., with him, C.M. Ilemesie, Esq. – for 23rd to 24th Respondents For Respondent(s)

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ANYAKORAH & ORS v. INEC & ORS (2021)

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