APC v. PDP & ORS (2021)

APC v. PDP & ORS

(2021)LCN/15041(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Monday, February 15, 2021

CA/OW/28/2021

RATIO

WHETHER OR NOT LEAVE OF COURT MUST BE FIRST PROCURED BEFORE AN APPEAL CAN BE LODGED IN RESPECT OF AN INTERLOCUTORY APPEAL

The questions or issues as to whether an interlocutory appeal can be taken out in an election petition; and whether or not leave of Court must be first procured, for this purpose, irrespective of the nature of the grounds of appeal, have consistently received the attention of this Court and the settled position of this Court in my considered view, is that the requirement that leave be first obtained before an appeal is lodged in respect of an interlocutory appeal in an election petition irrespective of the grounds of appeal, has no legal basis having regard to the sui generis nature of election petition, particularly as such matters must be completed within the time frame provided by the Constitution. See in this regard the case of NWOKOCHA V. IKE (2015) LPELR – 25662 (CA) amongst many others. Both pre-election matters and election petitions are undoubtedly sui generis, at least as regards the time within which such matters have to be initiated and completed before the trial Court. In the circumstances, I am of the considered view that the position of the law as it applies to whether an interlocutory appeal can be taken out in an election petition and whether or not leave of Court must be first procured for this purpose irrespective of the nature of the grounds of appeal, should readily be applied to the instant appeal which contrary to the alternate position of the Appellant, in its reply brief is an interlocutory appeal. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

ALL PROGRESSIVES CONGRESS APPELANT(S)

And

1. PEOPLES DEMOCRATIC PARTY 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION 3. FRANK IBEZIM RESPONDENT(S)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the ruling delivered on 22/1/2021, by the Federal High Court, Owerri Judicial Division presided over by Hon. Justice T.G. Ringim (hereafter to be simply referred to as “the lower Court” and “learned trial Judge” respectively).

The ruling in question was delivered in a motion filed on 15/12/2020, in Suit No: FHC/OW/CS/103/2020 – PEOPLES DEMOCRATIC PARTY (PDP) V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 2 ORS. The action in which the motion in question was taken out, was commenced by way of Originating Summons wherein the Plaintiff (now 1st Respondent) claims thus:-
“1. A declaration that the receipt by the 1st Defendant of the submission of the name of the 3rd Defendant by the 2nd Defendant as the nominated candidate of the 2nd Defendant and the inclusion by 1st Defendant of the name of the 3rd Defendant in the list of short-listed candidates published at the office of the 1st Defendant at Okigwe, Imo State the headquarters of Imo North Senatorial District as a candidate contesting the Senatorial seat of the said Senatorial Zone under

the 2nd Defendant in the Imo North Senatorial Bye Election scheduled for 31st October, 2020 is null and void being an act done in utter breach of the 1999 Constitution, Electoral Act and extant guidelines regulating the conduct of the election in view of the following or one or a combination of same:
(a) the Caretaker Committee set up by the 2nd Defendant upon the dissolution of the National Working Committee of the 2nd Defendant by the National Executive Committee on 25th June 2020 has no lawful powers to administer the affairs of the 2nd Defendant.
(b) the emergence of Chairman of the Caretaker Committee, Governor Mai Mala Buni ab initio and no action can be founded on it.
(c) the National Chairman and National Secretary of the 2nd Defendant did not sign the written request submitted to the 1st Defendant to obtain the access code for nomination forms from the 1st Defendant on the date stipulated in the time table and schedule of activities for bye-election into the Imo North Senatorial Zone Election fixed for 31st October, 2020.
(d) also the National Chairman and National Secretary of the 2nd Defendant did not also sign the covering

letter forwarding the nomination form of the 3rd Defendant to the 1st Defendant.”

The questions for determination and upon which the claims of the 1st Respondent are predicated, are as follows:-
“(1) Whether the Plaintiff has the requisite locus standi to maintain the suit?
(2) Whether the Honourable Court is vested with the jurisdiction to declare null and void the inclusion of a political party in the ballot for an election on the ground that the name of the candidate of the said political party was included in the list of candidates by the electoral body (INEC) in breach of the 1999 Constitution, the Electoral Act and extant guidelines and regulations issued thereunder?
(3) Whether the short listing of the name of the 3rd Defendant by the 1st Defendant as a person whose name was submitted by the 2nd defendant preparatory to including the 3rd defendant as a candidate qualified to contest the Imo North Senatorial election holding on 31st October, 2020 upon the submission of the said name by the 2nd Defendant done is in breach of the 1999 Constitution, the Electoral Act and extant guidelines and regulations?
(4) If the

answer to 3 is YES, whether the Court can grant an order directing the 1st Defendant to exclude the name of the 2nd Defendant from the ballot for the said election for receiving and acting upon the submission of the name of the third defendant as a candidate in breach of the 1999 Constitution, the Electoral Act and extant guidelines and regulations?
(5) Whether the Court can grant an injunction to restrain the 1st defendant from publishing or displaying in the final list of candidates the full names and address of the 3rd defendant at the office of the 1st Defendant at Okigwe, Imo State being the headquarters of Imo North Senatorial Zone as a candidate in the 31st of October, 2020 bye-election in the Imo North Senatorial Zone?”

Having regard to the records of appeal (hereafter to be simply referred to as “the records”, the Originating Summons issued on 17/9/2020, and after it was served on the 2nd Respondent therein (now Appellant), the said party brought a motion that was filed on 15/12/2020, seeking for the following: –
“1. AN ORDER of this Honourable Court extending the time within which the 2nd Defendant/Applicant may file its

memorandum of appearance, the counter-affidavit, written address, notice of preliminary objection and other accompanying processes the time for doing so having elapsed.
2. An order of this Honorable Court deeming the 2nd Defendant’s memorandum of appearance, the counter affidavit, written address, notice of preliminary objection and other accompanying processes already filed as properly filed and served.”

In the supporting affidavit of the said motion, the Appellant having deposed to the effect that the statutory period of 30 days allowed by the Rules of the lower Court for it to file the processes aforementioned had expired and that there is need for it to seek for extension of time to enable it file the same, further deposed in paragraphs 3(c)-(g), 4 and 5 as follows:
“Paragraph 3(c)
That the delay in filing the said processes in respect of this matter was not deliberate as the Applicant has clear intention to file defence to the Plaintiff’s suit.
Paragraph 3(d)
That the Applicant was unable to file its defence due to the Endsars protest which completely paralysed virtually all business activities throughout the month of

October, 2020 as flights, particularly from Abuja to Owerri were cancelled and major roads were obstructed during the period under reference.
Paragraph 3(e)
That it was not possible in the circumstance to send anybody from Abuja to Owerri to file the processes.
Paragraph 3(f)
That by the first week in November, 2020 when the protest was over, the statutory time within which to file had elapsed.
Paragraph 3(g)
That on the 9th day of November, 2020, the 2nd Defendant/Applicant filed her memorandum of appearance, counter-affidavit, written address, preliminary objection and other accompanying processes.
Paragraph 4
That it is in the interest of justice to grant the application.
Paragraph 5
That the Defendant will not be prejudiced if this application is granted.”

The lower Court entertained the motion on 18/1/2021, and adjourned its ruling thereon till 22/1/2021, and hearing of the matter to 15/2/2020. The lower Court having stated in its ruling on pages 431-432 of the records thus –
“While I follow the argument of the learned counsel to the Plaintiff that counsel are not masters of facts, I agree

with the argument of the learned Silk for the 2nd Defendant that the facts deposed to in paragraph 3(d) and (e), i.e. the period of ENDSARS protest which destabilized Courts’ activities are matter (sic) of common knowledge which this Honourable Court is entitled to take judicial notice under Section 124(1)(a) of the Evidence Act, 2011”
proceeded to state further on pages 432-434 thus: –
“On whether this Honourable Court has no jurisdiction to grant extension of time in pre-election matters, I agree with the sound argument of the learned counsel to the Plaintiff that pre-election matters being sui generis are time bound, I thus found reference to the cases of ACN V. REAR ADMIRAL NYAKO (2014) 2 NWLR (pt 1391) 211, AT 246 APT. This position was keenly followed by the Court of Appeal in ELVIS S. CHINDA V. INEC & ORS (2019) LPELR – 47902 (CA) 9-11 wherein the Court of Appeal, per Adamu JCA held thus:
” … ”
On how our Court are obliged to treat processes in election or pre-election matters filed out of time, C.C. Nweze, JSC in OMISORE V. AREGBESOLA (2015) LPELR- 24803 (SC) 78-79 held that:
” … ”

In consideration of the records in the instant matter where the Plaintiff seems to have fled filed the instant matter within 14 days of the occurrence of the event, i.e. on 17th September, 2020, served the Originating Processes on the 2nd Defendant on 25th September, 2020, I do not feel the application of the 2nd Defendant, filed on 15th December, 2020, i.e. about 80 days after service on the 2nd Defendant with the Originating Processes can be accommodated in this pre-election matter, which has only 180 days to commence and conclude.
Since such belated processes of the 2nd Defendant, due to be filed out of time are manifestly incompetent, the only option left to this Court, as pronounced by the Supreme Court, is to strike them out. The application of the 2nd Defendant is thus hereby refused and shall accordingly be struck out.”

Being aggrieved with the ruling of the lower Court, the Appellant initiated the instant appeal by lodging at the registry of the said Court on 22/1/2021 a notice of appeal bearing the same date. The Appellant subsequently lodged two other notices of appeal on 25/1/2021 and 27/1/2021, respectively. In its brief of argument, the Appellant

clearly founded the instant appeal on the notice of appeal filed on 25/1/2021. The said notice of appeal contains 4 grounds of appeal and the grounds therein together with their respective particulars read thus:-
“GROUNDS OF APPEAL
GROUND 1
The trial Court erred in law and thereby came to a perverse decision which occasion (sic) a miscarriage of justice when it refused the Appellant’s application for extension of time to file her processes (Memorandum of Appearance, Preliminary Objection, Counter Affidavit and Composite Written Address) in opposition to the 1st Respondent’s Originating Summons.
Particulars of Error
i. The Appellant was served the Originating Summons on 22nd day of September, 2020.
ii. The time for the Appellant to file her processes expired on 22nd day of October, 2020.
iii. The month of October, 2020 fell within the period when the End-SARS protest was ravaging Nigeria.
iv. During the period, both land and air transportation were halted.
v. Appellant’s counsel could not get the processes across to Owerri from Abuja for filing.
vi. Court including the Federal High Court were closed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

vii. Upon the return of normalcy, the Appellant filed her application for extension of time to file her processes on 9th day of November, 2020.
viii. When the matter came up for hearing on 3rd day of December, 2020, it was adjourned on the ground that 1st Respondent just served some processes on Appellant and the 3rd Respondent in Court that day.
ix. When Appellant saw that 1st Respondent was objecting to the Appellant’s processes on the ground that one of the counsel to the Appellant swore to the oaths in the Affidavit, Appellant filed another application for extension of time on 15th day of December, 2020 and withdrew the one earlier filed on 9th day of November, 2020.
x. The application filed on 15th day of December, 2020 was taken on 18th day of January, 2021.
xi. The application contained enough facts explaining the reason for the delay in filing Appellant’s processes/defence within time.
GROUND 2
The lower Court erred in law and its decision occasioned a miscarriage when it dismissed the Appellant’s application for extension of time within which to file its Memorandum of appearance, Notice of Preliminary Objection,

Counter Affidavit and Composite Written Address, on the ground that same cannot be granted in a pre-election matter.
Particulars of Error
i. The time within which the Appellant ought to enter appearance in the suit of the 1st Respondent is 30 days as indicated on the Originating Summons.
ii. Order 48 Rule 4 of the Federal High Court (Civil Procedure Rules) 2019 avails the Appellant to bring an application for extension of time within which to file its processes.
iii. There is no law (substantive or procedural) that forbids an application for extension of time in pre-election matters.
iv. The Federal High Court (Civil Procedure Rules), 2019 is applicable to proceedings in pre-election matters.
GROUND 3
The trial Court erred in law and its decision breached Appellant’s right to fair hearing when by its ruling of 2nd (sic) January, 2021, it foreclosed the Appellant from being heard on the main case which seeks to nullify Appellant’s sponsorship of the 3rd Respondent as its candidate for the Imo North Senatorial bye-election of 5th December, 2020 which the Appellant won.

Particulars of Error
i. The 1st Respondent’s case and all the allegations therein were directed at the action, activities decision of the Appellant.
ii. The 1st Respondent by the suit seeks to void Appellant’s sponsorship for an election in which it participated and won.
iii. The Senatorial Election which the Appellant won is at the centre of the suit.
iv. Appellant deserves to be heard before a decision would be reached against her.
v. Appellant’s defence which the trial Court foreclosed raises questions as to the jurisdiction of the trial Court to entertain the main suit.
GROUND 4
The decision of the lower Court is against the weight of evidence and the law.”

The reliefs the Appellant seeks from this Court are: (i) an order allowing the appeal; (ii) an order setting aside the ruling of the lower Court delivered on the 22/1/2021; and (iii) an order granting the reliefs sought by the Appellant in her application for extension of time filed on the 15th day of December, 2020.

The appeal was entertained on 12/2/2021. This was after the Appellant withdrew the appeal against the 2nd Respondent on record without opposition from either of the two other

Respondents on record. The 2nd Respondent unlike the other Respondents who had filed their respective briefs of argument on the day the appeal came up for hearing, still had time within which it was to file its brief of argument; hence the withdrawal of the appeal against it to facilitate the hearing of the instant appeal taken out in the time bound matter before the lower Court. Prior to the hearing of the appeal, the 1st Respondent equally argued its preliminary objection as raised in its notice of preliminary objection (hereafter to be simply referred to as “P.O.”) dated 6/2/2021 and filed on 9/2/2021, by adopting the argument in respect of same at paragraph 3 on pages 3-6 of its brief of argument dated 6/2/2021 and filed on 9/2/2021. The case of APC V. PDP (which the 1st Respondent stated was applicable to the P.O.) was cited in addition to the one set out in its brief of argument. Having responded to the P.O. by adopting the argument at paragraph 2 on pages 1-7 of its reply brief of argument to the brief of argument of the 1st Respondent dated 12/2/2021 and filed on the same date, the Court thereafter deemed the appeal as having been argued on the

briefs of argument of the parties in its file. Appellant’s brief of argument dated 4/2/2021 was filed on 5/2/2021 and 1st Respondent’s brief of argument as said hereinbefore is dated 6/2/2021 and filed on 9/2/2021; while the 3rd Respondent filed no brief of argument.

In its brief of argument, the Appellant formulated 3 issues for the determination of the appeal. They read thus:-
“1. Whether the trial Court was not wrong in refusing to grant the Appellant’s application for extension of time to file her processes in defence of the 1st Respondent’s Originating Summons. (Distilled from grounds 1 and 2 of the grounds of appeal).
2. Whether the trial Court has not breached the Appellant’s right to fair hearing and foreclosed the Appellant being heard in the substantive case which seeks to nullify Appellant’s sponsorship of the 3rd Respondent in the Imo North Senatorial District election of December 5, 2020 which the Appellant won. (Distilled from ground 3 of the grounds of appeal)”

The 1st Respondent in its brief of argument formulated an issue for the determination of the appeal from grounds 1 and 2 of the grounds of appeal and another

issue from ground 3 of the grounds of appeal. The issues respectively read thus:-
“(1) Whether the learned trial Judge properly exercised his discretion in refusing the application for extension of time?
(2) Whether the refusal of the application constitutes a breach of the right to fair hearing?”

The position of the law which is sacrosanct till date is to the effect that where there is a P.O. to the hearing of an appeal, the P.O. must be first considered and resolved. This is because where the P.O. is upheld, the hearing of the appeal on the merit becomes unnecessary. I will therefore first consider and resolve the P.O. of the 1st Respondent to the hearing of the instant appeal.

The grounds of the P.O. of the 1st Respondent read: –
“(1) There is no right of appeal against an interlocutory decision in a pre-election mater.
(2) The appeal is founded on facts or at best mixed law and facts for which leave to appeal ought to be obtained.”

In the main, the 1st Respondent relied on the decision of this Court in Mr. Abiru Mukail Adetokunbo V. PDP & 3 Ors, in respect of his stance that there is no right of

appeal in respect of an interlocutory decision of a Court in a pre-election matter.

Dwelling on second ground of the P.O, the 1st Respondent in the main submitted that because the lower Court considered a delay of 80 days to be inordinate and therefore refused the Appellant’s motion, the Appellant in the circumstance ought to have procured the leave of this Court to appeal as what was involved was the exercise of discretion by the lower Court.

In its response to the first ground of the P.O., the Appellant argued to the effect that its appeal was one as of right inasmuch as the ruling of the lower Court in relation to it, was a final one. This is because if it had been the only party before the lower Court in the instant action, the lower Court would have proceeded to deliver its judgment. Also dwelling on the second ground of the P.O., the Appellant submitted to the effect that its grounds of appeal, involved questions of law only.

It is no doubt settled law, that proceedings in pre-election matters, like election petitions are sui generis. I am however of the considered view that it must always be borne in mind that while election petitions

are said to be sui generis because of the constitutional provisions in Section 285(5), (6) and (7) of the 1999 Constitution (as amended) that provide for time periods (i) within which an election petition must be filed and disposed of at trial and/or appeal; and a unique set of rules for the attainment of this goals in theFirst Schedule to the Electoral Act, 2010 (as amended) and on appeal in the Election Tribunal and Court Practice Directions, 2011 , pre-election matters although having a constitutional provision that stipulates the time within which matters that qualify as such, must be filed and disposed of at the trial Court in Section 285(9) and (10), do not have specific rules of procedure made for the attainment of the goals, thereby leaving the practice and procedure applicable to pre-election matters to be the Rules of the Court applicable to the Court that is seized of such pre-election matter(s). This is however not to say that the Courts have not often times applied the rigid and inviolate principles of law that have been enunciated in election petitions given the sui generis nature of election petitions, to pre-election matters which are by law, now equally sui generis.

The questions or issues as to whether an interlocutory appeal can be taken out in an election petition; and whether or not leave of Court must be first procured, for this purpose, irrespective of the nature of the grounds of appeal, have consistently received the attention of this Court and the settled position of this Court in my considered view, is that the requirement that leave be first obtained before an appeal is lodged in respect of an interlocutory appeal in an election petition irrespective of the grounds of appeal, has no legal basis having regard to the sui generis nature of election petition, particularly as such matters must be completed within the time frame provided by the Constitution. See in this regard the case of NWOKOCHA V. IKE (2015) LPELR – 25662 (CA) amongst many others.
Both pre-election matters and election petitions are undoubtedly sui generis, at least as regards the time within which such matters have to be initiated and completed before the trial Court. In the circumstances, I am of the considered view that the position of the law as it applies to whether an interlocutory appeal can be taken out

in an election petition and whether or not leave of Court must be first procured for this purpose irrespective of the nature of the grounds of appeal, should readily be applied to the instant appeal which contrary to the alternate position of the Appellant, in its reply brief is an interlocutory appeal. In any event, since the position of the Appellant in its reply brief of argument is that the lower Court misunderstood the position of the law or misapplied the law to fact which it accepted, ground 1 of the grounds of appeal undoubtedly is one of law and is thereby sufficient to sustain the instant appeal which was clearly filed or lodged without leave. This is against the backdrop of the provision of Section 241 (1) (b) of the 1999 Constitution (as amended) and inasmuch as the said appeal was lodged or filed within the 14 days period provided by the Court of Appeal Act 2004 in Section 24(2)(a).

I do not see the need to dwell much on the third and or fourth ground(s) of appeal contained in the Appellant’s notice of appeal, particularly the third ground of appeal from which it distilled its issue 2. This is because ground 3 of the grounds of appeal by which

the Appellant complains of the breach of its right to fair hearing, in my considered view, glaringly does not arise from the ruling of the lower Court being appealed against. Whether or not the lower Court rightly dismissed the motion brought by the Appellant to regularise the position of its processes, did not tantamount to the said Appellant being struck out as a party in the suit. I cannot therefore readily comprehend how a party in an interlocutory proceeding in a matter can properly raise an allegation of the breach of his right to fair hearing in a proceeding which he not only initiated, but actively participated in. The Appellant in the instant case was the one who brought the motion to regularise the position of the processes it had filed irregularly in the instant case. The Appellant duly argued its motion which was resisted by the 1st Respondent and the lower Court duly gave its ruling. Where the breach of the right of the Appellant to fair hearing, emanates from in the proceeding before the lower Court, in the motion the said Court entertained, puzzles me. I am of the considered view that it is only after the lower Court has conducted proceedings

in the instant case and eventually enters judgment against the Appellant that the Appellant can properly situate a complaint of the breach of its right to fair hearing on the basis of having not been allowed to put in his defence to the instant action. This is however not to say that the Appellant at any stage of the proceeding cannot move the lower Court to set aside any or all the proceedings conducted before the trial Court when it was prevented from participating in the case on its defence, if the decision of the lower Court denying the Appellant the regularisation of its processes, is found to be wrong. The breach of the Appellant’s right to fair hearing as alleged in ground 3 of the grounds of appeal, having clearly not arisen from or in the proceeding and ruling the lower Court gave on 22/1/2021, cannot be said to flow from the ruling appealed against. It is a breach that can only arise in future, and that is in the event the decision of the lower Court in its ruling appealed against, is set aside. In the circumstances, ground 3 of the grounds of appeal and issue 2 formulated therefrom, must be and is hereby struck out.

Suffice it to say that this Court having earlier found that the Appellant required no leave of Court to have initiated the instant appeal, it follows that the P.O. of the 1st Respondent, must fail and hereby fails. It is overruled.

Now to the determination of the appeal on the merit and on Appellant’s issue 1 only.

I have diligently read the briefs of argument of the parties, (i.e. the Appellant and the 1st Respondent) who are the ones disputing the correctness of the decision of the lower Court. Having also hereinbefore re-produced the ruling of the lower Court, I am of the considered view that the issue that actually calls for consideration and resolution in the instant appeal is whether, the lower Court having accepted that the reason of “Endsars” given by the Appellant in its application, can be said to be right in refusing the same application on the grounds that pre-election matters do not admit of the granting of such application, especially when the application was brought about 80 days after the service of the Originating Processes on the said Appellant.

I have read the cases cited in the briefs of the Appellant and 1st Respondent painstakingly. Indeed, I read

many more regarding the proper disposition a Court should have in respect of an application for indulgence or indulgences in a pre-election matter as well as in an election petition. One out of the many more cases, I read and which I consider to be very germane to the issue at hand, is the case of PDP V. INEC (2014) LPELR – 23808 (SC) wherein the Supreme Court stated thus: –
“It has been stated in quite a number of decisions in this Court that election matters are sui generis and as such must be conducted strictly in compliance with the rules guiding them. Thus by Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), this Court shall hear appeals from the Court of Appeal arising from election matters within sixty (60) days from the date of the delivery of the judgment appealed against. In order to regulate and manage the 60 days allotted by the Constitution, the Practice Directions has prescribed time within which each party is to comply with the processes leading to the hearing of the appeal. It is thus my view that in circumstances such as this, no party is allowed to default and then turn around to plead the

Interpretation Act. The combined effect of Section 285(7) of the 1999 Constitution (as amended) and Paragraph 6 of the Practice Directions is that they limit the doing of any act to the period prescribed therein. Any action done outside the period prescribed is, to say the least, a nullity. The use of the word “shall’ in Paragraph 6 of the Practice Directions, makes it mandatory. No party or this Court has any discretion in the matter. The 26th respondent was served on 22nd August, 2014. Its time started to run from that same date irrespective of the fact that it was served at 4.00 pm or thereabout. Accordingly it’s (sic) time for filing its brief expired on 26th August, 2014. The subsequent filing of the brief on 27th August, 2014 was done outside the time allowed by the Practice Directions. … On the whole, I hold that the brief of the 26th respondent filed on 27th August, 2014, having been filed in flagrant disobedience to Paragraph 6 of the Practice Directions is incompetent and is hereby struck out …”
I am of the considered view that the above decision though laying down the principle to the effect that time within which a step is to be

taken in an election petition or election related matter (such as a pre-election matter is pursuant to Section 258(9) and (10) of the 1999 Constitution), the said decision still makes it clear that there must be specific provisions in the applicable rules denying parties the granting of the indulgence that they seek. The decision of the Supreme Court in the case of KUSAMOTU V. APC (2019) LPELR-46802(SC) which dwelled principally on time limit within which a Court should hear and dispose of an appeal in a pre-election matter and effect of failure thereof, never overruled the case of PDP V. INEC (supra); neither did it decide anything to the effect that no indulgence should be granted in a pre-election matter.
The instant pre-election case in which the Appellant brought its application for enlargement of time within which it was to regularise the positions as it were, of its processes already before the lower Court and which it wants to rely on in the defence of the action, is governed by the rules of practice or procedure of the lower Court. I must again state that I read the briefs of argument of the Appellant and the 1st Respondent diligently, and I did

not see therein where it was stated expressly or remotely suggested that the said rules do not provide for parties to seek for extension of time to regularise the filing out of time process or processes filed in any matter before the lower Court. Indeed, the position of the lower Court in its ruling appealed against eloquently admits that parties can under its rules of practice and or procedure, seek for an indulgence to regularise their processes filed out of time in a competent action. The lower Court only felt constrained because the instant action is a pre-election matter and that the Appellant’s motion was brought about 80 days after the Appellant was served with the originating processes in the case and that this cannot be accommodated in the instant per-election matter which has only 180 days to commence and conclude. It is obvious that the lower Court in its reasoning did not appreciate the position that its rules of practice and procedure are not on the same pedestal with the First Schedule to the Electoral Act, 2010 (as amended) and or the Election Tribunal and Court Practice Directions, 2011. The lower Court by its reasoning applied relevant

principles of law enunciated in respect of election petitions, without averting its mind to the fact that it was not handling an application brought in an election petition and or a proceeding brought under the Election Tribunal and Court Practice Directions, 2011, which are the only set of rules that have specifically provided for timelines in respect of election matters and or election related matters. I hold that the lower Court was very wrong in relying on the principle that applications such as the one it entertained, cannot be granted because the matter before it is a pre-election matter.

Furthermore, the lower Court in my considered view was also wrong in refusing the Appellant’s motion to regularise the positions of its processes the said Court having initially or previously held to the effect that the reason of “Endsars” was sufficient explanation for the non-filing within time of the processes that the Appellant sought to regularise. The lower Court which decided to take judicial notice of “Endsars” as a sufficient explanation for the late filing of the Appellant’s processes, in my considered view should not have been dissuaded or persuaded

from applying the reason of “Endsars” to the consideration of the merit of the application before it on the ground that the same was brought about 80 days after the service of the processes that issued in the case on the Appellant, without bringing to the fore why it considered the said reason as not constituting an extenuating situation. This the lower Court could have done by showing that the “Endsars” reason it decided to take judicial notice of and accepted as sufficient in the first place, did not or could not have materially affected the Appellant either because the “Endsars” imbroglio had not arisen by the time within which the Appellant ought to have filed its processes it was seeking to regularise, and or that the “Endsars” brouhaha had not arisen within the time the Appellant had to file its processes. In other words, I hold that the lower Court having found the reason of “Endsars” put up by the Appellant as sufficient for the purposes of the Appellant’s motion to regularise, cannot willy-nilly jettison its earlier position on the ground that the application was brought about 80 days after the service of the originating processes on the Appellant.

Flowing from all that has been said is that issue 1 formulated by the Appellant from grounds 1 and 2 of the grounds of appeal (and which I have hereinbefore found to be the only issue worthy of consideration in the appeal having struck out ground 3 and issue 2 distilled therefrom), must be and is hereby resolved in favour of the Appellant.

Flowing from all that has been said is that the lower Court wrongly dismissed the motion of the Appellant it entertained and a fortiori wrongly struck out the processes already filed before it and in respect of which fees for their regularisation had been paid.

In the final analysis, this appeal is meritorious and it succeeds. The ruling of the lower Court dismissing the motion brought by the Appellant on 15/12/2020 and by virtue of which the processes the Appellant sought to regularise were struck out, is hereby set aside. This Court pursuant to its powers under Section 15 of the Court of Appeal Act, 2004, hereby grants the Appellant the orders that it seeks in the said motion filed 15/12/2020.
I make no order as to costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the

judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA where the issues in dispute in this interlocutory appeal have been well encapsulated and require no repetition.

In response to the appeal, the Respondent filed a Preliminary Objection contending as follows:
“(1) There is no right of appeal against an interlocutory decision in a pre-election matter.
(2) The appeal is founded on facts or at best mixed law and facts for which leave to appeal ought to be obtained.”

I am in agreement with my learned brother’s dismissal of this Preliminary Objection. The contention of the Respondent’s Counsel that leave is required before an appeal is lodged in respect of an interlocutory appeal in an election petition, has no legal basis, I hold. This, I also hold, applies to pre-election matters, notwithstanding the fact that such matters have limited time frames.
I am also in agreement with my learned brother that the grounds of appeal are grounds of law, which by Section 241 (1) (b) of the Constitution of the Federal Republic of Nigeria 1999 require no leave of the Court to institute. The appeal, having been lodged within the 14 days

stipulated in Section 24 (2) (a) of the Court of Appeal Act 2004, is competent, I hold. For these and the fuller reasons given by my learned brother, I also dismiss the Preliminary Objection.

With regard to the substantive appeal, the salient issue that calls for determination as set out by my learned brother, is:
Whether the lower Court, having accepted that the reason of “Endsars” given by the Appellant in its application before the lower Court, can be said to be right to have refused the same application on the grounds that pre-election matters do not admit of the grant of such application especially when the application was brought 80 days after the service of the Originating Processes on the said Appellant.

The strictures with regard to the time frames for filing of processes in election cases, in view of their sui generic nature were well stated by the Supreme Court in the case of PDP V. INEC (2014) LPELR – 23808 (SC) as follows:
“The combined effect of Section 285(7) of the 1999 Constitution (as amended) and Paragraph 6 of the Practice Directions is that they limit the doing of any act to the period prescribed therein. Any action

done outside the period prescribed is, to say the least, a nullity.”
In that case, the Court held that the brief of one of the Respondents, having been filed outside the period provided in the Practice Directions was incompetent and was accordingly stuck out.
With regard to pre-election matters, there is no statute or Directions limited for the filing of such processes, save the Rules of Court, I find. The Court can thus not willy nilly import the application of rules that apply to election cases to pre-election matters. The fact that time limits are given for disposal of pre-election appeals, does not, I hold, preclude the grant of indulgence to a party who is found deserving of such.
The lower Court, having taken judicial notice of the interruption to the activities of the Courts, owing to the “End Sars” protest, and having accepted this as sufficient reason for the failure to file the process within the time stipulated, was clearly in error to have rejected the application by the importation of rules that apply to election matters and not to pre-election suits. For this and the fuller reasons given by my learned brother, I also allow this

appeal. I set aside the ruling of the lower Court dismissing the motion brought by the Appellant and striking out its processes.

I concur with the orders made by my learned brother granting the orders sought by the Appellant in the lower Court.

AMINA AUDI WAMBAI, J.C.A.: I have read the leading Ruling delivered by my learned brother, Ayobode O. Lokulo-Sodipe, JCA. I agree with the reasoning and conclusion that the lower Court having been satisfied with the reason for the delay of filing the processes timeously, the Court wrongly dismissed the Appellant’s motion and wrongly struck out the processes already filed before it. I abide by the orders in the lead ruling setting aside the decision of the lower Court and granting the Appellant’s reliefs.

Appearances:

Chief A.O. Ajana, SAN, with him, Dr. C.C. Nwadigo For Appellant(s)

U.O.Ukairo with him, C.C.Udemba – for 1st Respondent
E.E.Nwonye – for 3rd Respondent For Respondent(s)