APC v. PDP & ORS (2021)

APC v. PDP & ORS

(2021)LCN/14973(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 15, 2021

CA/LAG/CV/1098/2020

RATIO

ELECTION MATTERS: NATURE OF PROCEEDINGS RELATING TO ELECTION MATTERS

It is trite that proceedings relating to election matters are sui generis, in a class of their own. On the peculiar nature of election petition, this Court, per R.D. Muhammad, JCA in Owuru v Awuse (2004) LPELR-7339(CA) at pages 4-6 said:
“Let me first deal with the peculiar nature of election petition. Election Petitions are “sui generis” and as such they are considered to be neither civil nor criminal proceedings. See GBE Vs ESEITE (1988) 4 NWLR (Pt 89) 435; AYUA Vs ADASU (1992) 3 NWLR (Pt 231) 598 and OWURU Vs INEC (1999) 10 NWLR (622) 201. An election petition should not be treated as an ordinary civil suit. An election petition creates a special jurisdiction and the ordinary rules of procedure in civil cases do not serve its purpose. Because of their peculiar nature, the Court should endeavor to hear them expeditiously, by reasons of their importance to good governance and the democratic set up. This places the election petitions above the normal transactions between individuals which give rise to ordinary claims in Court. See: ORUBU Vs NEC (1988) 5 NWLR (Pt.94) 323 where Uwais JSC (as he then was) stated at page 347 that:
“An election petition is not the same as ordinary civil proceedings because of the peculiar nature of election which by reason of their importance to the well being of democratic Society, are regarded with an aura that places them over and above the normal day to day transaction between individuals which give rise to ordinary or general claims in Court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute.”
It could be seen from the authorities quoted above, election petitions are peculiar in nature. They are proceedings “sui Generis” which are not considered to be identical with other proceedings. They are considered important that the Court should not allow technicalities and rules of procedure to cause delay in their disposition.”
See also: Nwaogu v INEC (2008) LPELR-4644 (CA); Sa’ad v Maifata (2008) LPELR-4915 (CA). Therefore, whether it is an election or pre-election matter, it is sui generis, very much unlike ordinary civil or criminal proceedings; Hassan v Aliyu (2010) LPELR-1357 (SC), (2010) 17 NWLR (PT 1223) 547. PER ONYEKACHI AJA OTISI, J.C.A.

APPEAL: RIGHT OF APPEAL AS OF RIGHT

Section 241 (1) and 242(1) of the 1999 Constitution (as amended) provide:
(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) …
(f) …
242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal. PER ONYEKACHI AJA OTISI, J.C.A.
INTERPRETATION: CONSTRUCTION OF STATUTORY PROVISIONS

It is well settled that Constitutional provisions are read as a whole. In interpreting the provisions of a statute or of the Constitution, such provisions or Section should not be read in isolation of the other parts of the statute or Constitution. The statute or Constitution is read as a whole in order to determine the intendment of the makers of the Statute or Constitution; PDP & Anor. v INEC & Ors (1999) LPELR-24856(SC); Nafiu Rabiu v. The State (1981) 2 NCLR 293 at 326. This Court, per Akeju, JCA in Obaghama & Anor v Apiafi & Ors (2019) LPELR-49076(CA), while considering the provisions of Section 241(2), said:
“The law is trite that in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. See BUHARI v. YUSUF (2003) 14 NWLR (PT 841) 446; OPIA V. INEC & ANOR (2014) LPELR 22185 and SHINKAFI V. YARI (2016) LPELR 26050. Therefore, the fact that the provision expressly refers to the Federal High Court and a High Court by implication all other Courts like the Election petition Tribunals are excluded.” (Emphasis mine)
I agree completely. Expressio unius est exclusio alterius, which means: that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication. The principle is well settled that in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included; Buhari & Anor v. Yusuf & Anor (2003) LPELR-812(SC); Opia v INEC (2014) LPELR-22185(SC). PER ONYEKACHI AJA OTISI, J.C.A.

APPEAL: APPEAL AGAINST INTERLOCUTORY DECISIONS

Now, having settled that interlocutory decisions may be appealed against in election or pre-election matters without prior leave of Court, the next question is when the appeal against the interlocutory decision can be lodged. Would it be 14 days after the decision is given, or would it abide the final decision on the pre-election or election matter and the interlocutory appeal then be filed alongside the final appeal? The answers to these queries would be found in the relevant provisions of the law.
Section 285(8) and (11) provide:
(8) Where a preliminary objection or other interlocutory issue touching on the jurisdiction of the tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment.

(11) An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgement appealed against.
Read together, it is evident that the purport of the provisions is to ensure that the speedy determination of an election or pre-election matter is not clogged by an interlocutory issue. Central words in Section 285(11) are decision and delivery of the judgment. I consider it significant that the words decision and delivery of judgment were differently used. I would attempt a modest exposition of the said provisions in this manner:
An appeal from a decision (whether interlocutory or final) in a pre-election matter shall be filed within 14 days from the date of delivery of the (final) judgment appealed against.
In my firm view, this interpretation is in line with intendment of the legislature to ensure speedy disposal or determination of all manner of election matters. See also: Akeredolu v. Abraham & Ors. (supra).
The provisions of Paragraph 10(b) of the Court of Appeal Practice Directions 2013 do not run contrary to the provisions of Section 285(8) and (11) but are in the same vein.

Paragraph 10(b) provides:
“Without prejudice to any of the foregoing, the Court shall refuse to hear appeals arising from Interlocutory decisions of the Court below where the matter deals with any of the issues listed in 3 above and the Court is of the opinion that the grounds raised in the appeal are such that the Court can conveniently be determined by way of an appeal arising from the final judgment of the Court below, provided that where the grounds of the appeal deal with issues of pure law, the Court may exercise discretion and determine it expeditiously.”
I believe that the measure of discretion given to the Court by Paragraph 10(b) acknowledges that there may be genuine and legitimate reasons for lodging an interlocutory appeal, for which the Court may exercise its discretion to hear.
It is important to emphasize that these provisions or decisions that have towed the line that interlocutory appeals must abide the final judgment but be filed within 14 days of the final judgment, have not tampered with an appellant’s guaranteed Constitutional right of appeal in interlocutory appeals. However, the procedure to guide when and how that right may be exercised in order to give effect to the intendment of Section 285(8) and (11), which is to ensure that election matters are concluded timeously, has been streamlined.
This Court in Ihedioha v PDP (2018) LPELR-46262(CA), per Agim, JCA (now JSC), expressed the following opinion on the provisions of Paragraph 10(b):
“The intendment of Paragraph 10(b) of Court of Appeal Practice Direction 2013 is to prevent the frustration of trial proceedings by appeals against any interlocutory decision of the trial Court in the trial proceedings before it. The experience is that some of these interlocutory appeals are legitimate and bona fide exercise of the litigants constitutional or statutory right of appeal. But most of them were not genuine and legitimate exercises of a right of appeal, as they were devised as stratagem to frustrate the progression of proceedings pending in the lower Court… Paragraph 10b of the Court of Appeal Practice Direction 2013 vests in this Court the power to decide if an interlocutory appeal before it is such that can be conveniently await the conclusion of the entire proceedings at the trial Court and be brought in any appeal or together with any appeal against the final judgment of the trial Court following conclusion of the proceedings before it, the proviso therein also gives this Court the power to decide if such appeals on ground of pure law or jurisdiction can be expeditiously heard or not… paragraph 10b as a whole by giving this Court the power to make the decisions stated therein as a basis for its decision to refuse to hear appeal or hear it expeditiously, vests this Court with the discretion to refuse to hear this kind of appeal or hear it expeditiously. If this Court decides that this appeal can conveniently await the conclusion of the proceedings pending at the trial Court and be brought thereafter as part of or together with an appeal against the final judgment of the trial Court, it must refuse to hear the appeal. Equally if it decides that an interlocutory appeal on ground of jurisdiction or pure law cannot be expeditiously heard, then it must refuse to hear the appeal.
The intendment of Section 285(8), (9) and (10) of the 1999 Constitution (Fourth Alteration) is to ensure an expeditious trial and determination of pre-election cases, to ensure that pre-election trial and appeal proceedings do not last indefinitely and to prevent the delay and frustration of trials of pre-election cases by preliminary objections on jurisdiction and other interlocutory issues during such trials and thereby prevent interlocutory appeals before the conclusion of trial proceedings in a pre-election case pending in the trial Court.
To realise this intendment Section 285(8) prohibits the determination of preliminary objections and other interlocutory issues before the conclusion of trial and requires that such determination be made along with the final judgment after conclusion of trial and Section 285(10) and (11) limit the time for trial of pre-election cases and appeals after judgments in such cases.”
This remains the extant the position of the law.
Thus, fundamentally, the exercise of the right of appeal on an interlocutory decision in election or pre-election matters is governed by the provisions of Section 285(11). PER ONYEKACHI AJA OTISI, J.C.A.

APPEAL: BINDINGNESS OF RECORD OF APPEAL ON THE COURT AND PARTIES

It is trite that the Court and the parties are bound by the record; Onwuka v Ononuju (2009) LPELR-2721(SC). No appeal can be founded by a decision that is not part of the record of appeal for the Court cannot go outside the record; Enekwe v IMB Ltd (2006) LPELR-1140(SC); Olorunyolemi v Akhagbe (2010) LPELR-2597(SC). PER ONYEKACHI AJA OTISI, J.C.A.

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Between

ALL PROGRESSIVES CONGRESS APPELANT(S)

And

PEOPLES DEMOCRATIC PARTY 2. OLALERE BABATUNDE GBADAMOSI 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION 4. ABIRU MUKAIL ADETOKUNBO RESPONDENT(S)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against part of the Ruling of the Federal High Court, Lagos Division, Coram: Obiozor J. in Suit No. FHC/L/CS/1361/2020, delivered on November 16, 2020, in which the trial Court struck out the motion on notice for amendment filed on behalf of the 1st and 2nd Respondents, same having been withdrawn by their Counsel.

The facts leading to the instant interlocutory appeal may be summarized in this manner: The 3rd Respondent scheduled a bye-election to fill the vacancy in the seat of a deceased Senator representing the Lagos East Senatorial District in the National Assembly of the Federal Republic of Nigeria. Political parties were invited to conduct primaries for this purpose. After their respective primary elections, 4th Respondent emerged the candidate of the Appellant, while the 2nd Respondent emerged the candidate of the 1st Respondent. By Originating Summons, the 1st and 2nd Respondents commenced an action at the lower Court challenging the qualification of the 4th Respondent and seeking his disqualification. The Appellant entered a conditional appearance and filed a

preliminary objection in which they challenged the jurisdiction of the lower Court on a number of grounds. Before the suit was served on the Appellant, the 1st and 2nd Respondents filed a Motion on Notice on 26/10/2020, seeking to amend the originating summons. The Appellant vehemently opposed the application, on the grounds, inter alia, that the amendment sought to introduce new causes of action. Upon application of the learned Senior Counsel for the 1st and 2nd Respondents for time to react to the counter affidavit of the Appellant, the learned trial Judge adjourned the suit to 16/11/2020 for hearing of the originating summons, and all intermediate applications. At the proceedings of 16/11/2020, the 1st and 2nd Respondents sought to withdraw the motion on notice for amendment of 26/10/2020. Although, the Appellant’s Counsel was not averse to the application to withdraw same, he contended that the said motion on notice for amendment ought to be dismissed by the trial Court and not struck out as was contended by the 1st and 2nd Respondents. After taking arguments from counsel, the learned trial Judge struck out the application. Dissatisfied with the

decision of the learned trial Judge, the Appellant lodged this interlocutory appeal by Notice of Appeal filed on 16/11/2020, pages 298-305 of the Record of Appeal.

The parties filed Briefs of Argument, pursuant to the Rules of this Court. The Appellant’s Brief was filed on 8/12/2020. The 1st and 2nd Respondents’ Brief was filed on 7/1/2021. The 1st and 2nd Respondents also gave Notice of Preliminary Objection, which was argued in their Brief. The Appellant filed a Reply Brief on 11/1/2021. At the hearing of the appeal on 11/1/2021, the Briefs were respectively adopted by R.I. Nkannebe, Esq. for the Appellant, and, by Adesoji Adedoyin, Esq. for the 1st and 2nd Respondents. The 3rd Respondent, represented by Bolanle Babajide, Esq., as well as the 4th Respondent, represented by Adetokunbo Davies, Esq., filed no Brief. Mr. Nkannebe urged the Court to allow the appeal and set aside the judgment of the lower Court in its entirety, while Mr. Adedoyin urged the Court to dismiss the appeal. As is customary, the Preliminary Objection shall first be considered.

Preliminary Objection.
The 1st and 2nd Respondents in the preliminary objection seek the dismissal of the Appellant’s appeal on the ground that this Court lacks jurisdiction to entertain the Appellant’s appeal. The grounds of the objection are:
i. By the relevant provisions of the 1999 Constitution (as amended) and the Court of Appeal Act, the leave of Court is mandatorily required by the Appellant can file its Notice of Appeal emanating from an interlocutory ruling of the Trial Court.
ii. Furthermore, the Appellant requires the leave of Court to file this appeal, which from the grounds of appeal, bothers(sic) on grounds of mixed law and facts.
iii. The Appeal emanating from an interlocutory ruling in a pre-election proceeding is pre-mature and incompetent by virtue of Section 285(11) of the Constitution of the Federal Republic of Nigeria (as amended).
iv. In view of the Ruling of the trial Court of 9th December, 2020, dismissing the 1st and 2nd Respondents’ application for amendment which application is similar to the application leading to this appeal, the instant appeal is now academic and of no utilitarian value to the Appellant.
v. This Honourable Court lacks jurisdiction to entertain the instant appeal.

Arguments
Counsel for the 1st and 2nd Respondents compressed his arguments on the Preliminary Objection thus:
i. Failure on the part of the Appellant to seek leave of Court before filing its Notice of Appeal robs the Court of jurisdiction.
ii. The Court lacks jurisdiction to entertain the interlocutory appeal emanating from a pre-election matter.
iii. The appeal has become academic.

Ground 1
Counsel for the 1st – 2nd Respondents argued that by the combined provisions of Sections 241(1) and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 15 of the Court of Appeal Act, the Appellant is mandatorily required to seek and obtain the leave of the Lower Court or this Court before filing its Notice of Appeal predicated on an interlocutory Ruling. The substantive suit was still pending at the trial Court as at the time the Notice of Appeal and the Appellant’s brief of argument were filed at the Registry of the trial Court and this Court respectively. No leave of Court was sought and obtained by the Appellant before filing the Notice of Appeal. It was submitted

that the procedure adopted by the Appellant contravened the provisions of Sections 241(1) and 242 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and Section 15 (1) of the Court of Appeal Act. Counsel submitted that the Appellant ought to seek and obtain the leave of Court before filing its interlocutory appeal. The decisions in I.I.T.A. v. Amarani (1994) 3 NWLR (PT. 332) 296 at 319 and Oshianie v. Erhumwunse (1993) 3 NWLR (Pt. 288) 239 at 246 were cited and relied on.

It was further argued that the grounds of appeal in the instant interlocutory appeal were of mixed law and facts. By virtue of the combined provisions of Sections 241(1) and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Appellants were mandatorily required to seek and obtain leave of the Lower Court or this Court before filing an appeal on grounds of mixed law and fact. The appeal challenged the exercise of discretionary power of the trial Court, which was a ground of mixed law and fact, and the Appellant must seek and obtain the leave of Court before initiating the appeal. Counsel cited and relied a number of authorities including

CBN v. Okojie (2002) 8 NWLR (Pt.768) at 48, (2002) LPELR-836 (SC) at pp. 7-13; Metal Construction (WA.) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) 299; (1990) LPELR-1869 (SC) 40; Okolonwamu & Anor. v. Okolonwamu & Ors. (2019) LPELR-46924 (SC) at p. 10. Where the said leave was not sought, the said appeal is incompetent and must be struck out, as the Court would be bereft of jurisdiction to entertain same. It was submitted that the effect of not seeking leave, where leave to appeal is required, is that there is no appeal and the Court cannot assume jurisdiction in this regard. Reliance was placed on the case of Yaro v. Arewa Construction Co. Ltd (2007) 17 NWLR (Pt.1063) 333 at 358-359; Kashadadi v. Noma (2007) 13 NWLR (Pt. 1052) 510. On these submissions, the Court was urged to dismiss this appeal for lack of jurisdiction.

In reply, Counsel for the Appellant submitted that the Respondents’ contentions fly in the face of the extant jurisprudence governing appeals arising from election related matters. The 1st and 2nd Respondents had applied generic principles governing interlocutory appeals in otherwise civil proceedings as against what obtains in

election matters which are sui generis. The decisions of this Court in Uche & Anor v INEC & Ors (2019) LPELR-48836 (CA); Ogah v. Emenike & Ors (2019) LPELR-46644 were cited and relied on to submit that in pre-election matters, leave of Court was not required to file an appeal against a decision of the lower Court. The Court was urged to discountenance all the authorities relied upon by the 1st and 2nd Respondents in this regard, in so far as they did not interpret the provisions of Section 285 (11) of the 1999 Constitution, which is a specific provision governing appeals from decision of a Court in a pre-election matter.

Resolution
The 1st and 2nd Respondents have stated the correct position of the law in respect of interlocutory appeals, having regard to the provisions of Sections 241(1) and 242 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). However, and this is fundamental, the fact that this appeal is a pre-election matter cannot be disregarded. It is trite that proceedings relating to election matters are sui generis, in a class of their own. On the peculiar nature of election petition, this Court, per R.D.

Muhammad, JCA in Owuru v Awuse (2004) LPELR-7339(CA) at pages 4-6 said:
“Let me first deal with the peculiar nature of election petition. Election Petitions are “sui generis” and as such they are considered to be neither civil nor criminal proceedings. See GBE Vs ESEITE (1988) 4 NWLR (Pt 89) 435; AYUA Vs ADASU (1992) 3 NWLR (Pt 231) 598 and OWURU Vs INEC (1999) 10 NWLR (622) 201. An election petition should not be treated as an ordinary civil suit. An election petition creates a special jurisdiction and the ordinary rules of procedure in civil cases do not serve its purpose. Because of their peculiar nature, the Court should endeavor to hear them expeditiously, by reasons of their importance to good governance and the democratic set up. This places the election petitions above the normal transactions between individuals which give rise to ordinary claims in Court. See: ORUBU Vs NEC (1988) 5 NWLR (Pt.94) 323 where Uwais JSC (as he then was) stated at page 347 that:
“An election petition is not the same as ordinary civil proceedings because of the peculiar nature of election which by reason of their importance to the well being of democratic

Society, are regarded with an aura that places them over and above the normal day to day transaction between individuals which give rise to ordinary or general claims in Court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute.”
It could be seen from the authorities quoted above, election petitions are peculiar in nature. They are proceedings “sui Generis” which are not considered to be identical with other proceedings. They are considered important that the Court should not allow technicalities and rules of procedure to cause delay in their disposition.”
See also: Nwaogu v INEC (2008) LPELR-4644 (CA); Sa’ad v Maifata (2008) LPELR-4915 (CA). Therefore, whether it is an election or pre-election matter, it is sui generis, very much unlike ordinary civil or criminal proceedings; Hassan v Aliyu (2010) LPELR-1357 (SC), (2010) 17 NWLR (PT 1223) 547. Indeed, neither the case of I.I.T.A. v. Amarani (supra) nor Oshianie v. Erhumwunse (supra) relied on by the 1st and 2nd Respondents/Objectors arose from election

matters. For the self-same reason of being sui generis, election matters are governed by laws made specially to regulate such proceedings. These laws are essentially founded on a deliberate policy to enhance speed.
Section 241 (1) and 242(1) of the 1999 Constitution (as amended) provide:
(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) …
(f) …
242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from

decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
It is well settled that Constitutional provisions are read as a whole. In interpreting the provisions of a statute or of the Constitution, such provisions or Section should not be read in isolation of the other parts of the statute or Constitution. The statute or Constitution is read as a whole in order to determine the intendment of the makers of the Statute or Constitution; PDP & Anor. v INEC & Ors (1999) LPELR-24856(SC); Nafiu Rabiu v. The State (1981) 2 NCLR 293 at 326. This Court, per Akeju, JCA in Obaghama & Anor v Apiafi & Ors (2019) LPELR-49076(CA), while considering the provisions of Section 241(2), said:
“The law is trite that in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. See BUHARI v. YUSUF (2003) 14 NWLR (PT 841) 446; OPIA V. INEC & ANOR (2014) LPELR 22185 and SHINKAFI V. YARI (2016) LPELR 26050. Therefore, the fact that the

provision expressly refers to the Federal High Court and a High Court by implication all other Courts like the Election petition Tribunals are excluded.” (Emphasis mine)
I agree completely. Expressio unius est exclusio alterius, which means: that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication. The principle is well settled that in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included; Buhari & Anor v. Yusuf & Anor (2003) LPELR-812(SC); Opia v INEC (2014) LPELR-22185(SC). Indeed, a community reading of the provisions of Sections 241(1) and 242 of the Constitution, Section 285 (11) of the Fourth Alteration to the 1999 Constitution, as well as other relevant provisions, will reveal a deliberate and purposeful intention to create different set of rules to govern election and pre-election matters. These provisions, unlike the provisions of Sections 241(1) and 242, make no distinction regarding the nature of the grounds of appeal, whether law simpliciter or mixed law and fact.

Further hitting the nail on the head, this Court in the recent case of APC v. Asekomhe & Ors (2020) LPELR-50032(CA), per Ogunwumiju, JCA (now JSC) said:
“The Supreme Court has held that there is no requirement to seek and obtain leave to appeal in pre-election/election related matters. The Court held in OJOBO V. MORO (2019) 17 NWLR (PT.1700)166 @ 178 PARAS E-D as follows at pg. 178:
Obviously, with the amendment to Section 285 of the Constitution by the Fourth Alteration Act, No.21 of 2018 which catapulted pre-election matters to the same pedestal as election petition cases, it is not business as usual, Section 285(11) now stipulates that
An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment.
Litigants and counsel alike have, over the years, learnt to live with the fact that election petitions are time bound and act accordingly. With pre-election matters being time bound, they must learn that pre-elections matters are outside the realm of civil proceedings, therefore, applications for leave to appeal, are

now out of bounds. Thus, the objection raised by the first respondent is overruled.
See also OBAZEE V. EKHOSUEHI (2019) 17 NWLR (PT. 1701) 245 @ 257 PARA D where the Court held that:
This Court in All Progressives Congress (APC) v. Senator kabiru Garba Marafa (Unreported) decision in SC. 377/2019 delivered on 24 May, 2019 held at page 34 per Galumje JSC following Obih v. Mbakwe (1984) LPELR 2172 (SC), (1984) 1 SCNLR 192. That election or pre-election matters are in a class of their own and time is of the essence. That being the case the provision of Section 233(3) of the Constitution does not apply to elections and related matters.
That decision Law(sic) of the Supreme Court in relation to the dispensation with the need to seek and obtain leave in pre-election matter pursuant to Section 233 (2) of the 1999 Constitution relates mutantis mutandis to the similar Section 241 (1) (b) of the 1999 Constitution governing leave to approach the Court of Appeal in pre-election matters. In the light of the present stand of the Supreme Court, the objection to the appeal on failure to seek and obtain leave is overruled.”

See also: Oludare & Anor v. Akinwale & Ors (2009) LPELR-4763(CA). I shall return to this point anon. Therefore, on this ground of the objection, I see no merit.

Ground 2
It was submitted on behalf of the 1st and 2nd Respondents that by the provisions of Section 285(11) of the 1999 Constitution (as amended) and Paragraph 10(b) of the Court of Appeal Practice Directions 2013, this Court lacks jurisdiction to entertain an interlocutory appeal emanating from pre-election matter as in the instant appeal. Counsel posited that the above provisions of law were aimed at speedy disposal of pre-election disputes, which could be frustrated if parties are allowed to file interlocutory appeals, when same can be incorporated in the Notice of Appeal lodged against the final judgment. It was further posited that when faced with the task of interpreting the Section 285(11) of the Constitution, Courts have always tilted its scale of justice to the arguments that by the express provision of Section 285(11) of the Constitution, an appellate Court lacks jurisdiction to entertain an interlocutory appeal emanating from pre-election matter as in the instant appeal. Reliance was placed on

the decision in Akeredolu v. Abraham & Ors. (2019) LPELR-46670(CA) at pages 7-11 to urge the Court to dismiss the appeal.

In reply, it was argued for the Appellant that the decision in Akeredolu v Abraham & Ors (supra) where Section 285(11) of the Constitution was considered, and construed to mean that appeals from election matters can only be in respect of final judgments and not interlocutory decisions of the Court, was contrary to the spirit of the Constitution, and settled decisions of the apex Court on what constitutes a decision of a Court. It was argued that the provisions of Section 285(11) did not distinguish between final decisions and interlocutory decisions of a pre-election Court. Reliance was also placed on Section 318 of the Constitution, which defined:
“Decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation”

The Apex Court in Omisore & Anor v. Aregbesola & Ors (2015) LPELR- SC held that a decision includes:
“A ruling, order or judgment pronounced by a Court when considering or disposing of a case”.

A decision includes a judgment. Hence, reference to judgment in Section 285 (11) of the Constitution must be interpreted to include decision, which permits of both final and interlocutory decisions, such as the one from which the instant appeal germinated. It was submitted that Akeredolu’s case was predicated on the provisions of the Court of Appeal Practice Directions, which is a subsidiary legislation. On this ground, the Court was urged to discountenance the arguments of the Respondents and hold that interlocutory appeals can be heard in pre-election matters, especially where such appeals, as in the instant case, does not put the substantive matter at the lower Court in abeyance.

Resolution
The question of whether the Court can entertain interlocutory appeals from election or pre-election matters had been a vexed issue. This Court, in earlier decisions, had taken the position that by hearing interlocutory Appeals emanating from Election Petitions Tribunals, the Court engaged in an exercise for which they had no jurisdiction as the jurisdiction of this Court to hear election appeals was limited to final decisions;

Amgbare v. Sylva (2007) LPELR-8089(CA), (2007) 18 NWLR (Pt. 1065) 1; Okhue v. Obadan (1989) NWLR (pt. 120) 185; Okon v. Bob (2003) LPELR-6098 (CA). These decisions mostly took bearing from the decision in Orubu v NEC (1988) LPELR-2776(SC), in which the appeal therein had arisen from the judgment of this Court on an interlocutory decision of the High Court arising from a petition on local government elections. The Supreme Court therein held that in hearing the interlocutory appeal, this Court had engaged in an exercise for which it had no jurisdiction and its decision thereon was declared a nullity.
A different position which took into account the interpretation of the word decision is found in decisions of this Court such as Kantiok v Ishaku (2008) LPELR-4390(CA) wherein, this Court also relied on later decisions of the Apex Court in Buhari v Obasanjo (2003), Awuse v Odili (2003) LPELR-666(SC) to hold that appeals would lie to this Court from decisions on election matters, whether interlocutory or on the merits. See also Aondoakaa v Ajo (1999) LPELR-6762(CA). Indeed, in Awuse v Odili (supra) the Apex Court examining the provisions of Section 318 of the Constitution,

categorically stated that that definition does not distinguish between an interlocutory decision and a final decision in an election petition. See also Oludare & Anor v. Akinwale & Ors (supra). It is therefore settled that, interlocutory decisions may be appealed against in election or pre-election matters.
Now, having settled that interlocutory decisions may be appealed against in election or pre-election matters without prior leave of Court, the next question is when the appeal against the interlocutory decision can be lodged. Would it be 14 days after the decision is given, or would it abide the final decision on the pre-election or election matter and the interlocutory appeal then be filed alongside the final appeal? The answers to these queries would be found in the relevant provisions of the law.
Section 285(8) and (11) provide:
(8) Where a preliminary objection or other interlocutory issue touching on the jurisdiction of the tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

right may be exercised in order to give effect to the intendment of Section 285(8) and (11), which is to ensure that election matters are concluded timeously, has been streamlined.
This Court in Ihedioha v PDP (2018) LPELR-46262(CA), per Agim, JCA (now JSC), expressed the following opinion on the provisions of Paragraph 10(b):
“The intendment of Paragraph 10(b) of Court of Appeal Practice Direction 2013 is to prevent the frustration of trial proceedings by appeals against any interlocutory decision of the trial Court in the trial proceedings before it. The experience is that some of these interlocutory appeals are legitimate and bona fide exercise of the litigants constitutional or statutory right of appeal. But most of them were not genuine and legitimate exercises of a right of appeal, as they were devised as stratagem to frustrate the progression of proceedings pending in the lower Court… Paragraph 10b of the Court of Appeal Practice Direction 2013 vests in this Court the power to decide if an interlocutory appeal before it is such that can be conveniently await the conclusion of the entire proceedings at the trial Court and be

brought in any appeal or together with any appeal against the final judgment of the trial Court following conclusion of the proceedings before it, the proviso therein also gives this Court the power to decide if such appeals on ground of pure law or jurisdiction can be expeditiously heard or not… paragraph 10b as a whole by giving this Court the power to make the decisions stated therein as a basis for its decision to refuse to hear appeal or hear it expeditiously, vests this Court with the discretion to refuse to hear this kind of appeal or hear it expeditiously. If this Court decides that this appeal can conveniently await the conclusion of the proceedings pending at the trial Court and be brought thereafter as part of or together with an appeal against the final judgment of the trial Court, it must refuse to hear the appeal. Equally if it decides that an interlocutory appeal on ground of jurisdiction or pure law cannot be expeditiously heard, then it must refuse to hear the appeal.
The intendment of Section 285(8), (9) and (10) of the 1999 Constitution (Fourth Alteration) is to ensure an expeditious trial and determination of pre-election

cases, to ensure that pre-election trial and appeal proceedings do not last indefinitely and to prevent the delay and frustration of trials of pre-election cases by preliminary objections on jurisdiction and other interlocutory issues during such trials and thereby prevent interlocutory appeals before the conclusion of trial proceedings in a pre-election case pending in the trial Court.
To realise this intendment Section 285(8) prohibits the determination of preliminary objections and other interlocutory issues before the conclusion of trial and requires that such determination be made along with the final judgment after conclusion of trial and Section 285(10) and (11) limit the time for trial of pre-election cases and appeals after judgments in such cases.”
This remains the extant the position of the law.
Thus, fundamentally, the exercise of the right of appeal on an interlocutory decision in election or pre-election matters is governed by the provisions of Section 285(11). In my considered view, there was no urgency unveiled by the instant interlocutory appeal to compel or persuade the exercise of the Court’s discretion to

entertain the said appeal out of turn or before the delivery of final judgment in the matter. In the circumstance, I think the instant interlocutory appeal can best be described as premature. It ought to abide the delivery of the final judgment on the matter and the notice of appeal filed within 14 days thereafter. I will therefore uphold the objection on this ground.

Ground 3
Learned Senior Counsel further submitted that the instant appeal is now academic and of no utilitarian value to any of the parties by reason of the Ruling of the trial Court delivered on 9/12/2020. Following the order made by the trial Court on 16/11/2020, which led to the instant appeal, the 1st and 2nd Respondents’ counsel filed another motion for amendment dated 18/11/2020, which was heard and dismissed by the trial Court which in effect, barred the 1st and 2nd Respondents from filing another application for amendment. It was argued that from these facts, the instant appeal has become academic and of no utilitarian value to the Appellant. On the effect of an academic appeal, the cases of Ardo v. INEC & ORS (2017) LPELR-41919(SC); Ugba & anor v. Suswam & Ors. (2012) LPELR-8635(CA) were cited and relied on. The Court was urged to dismiss the appeal in its entirety.

In reply, it was submitted that the decision of the lower Court on 9/12/2020 made in respect of a Motion on Notice of 18/11/2020, all of which do not form part of the records in this appeal. It was submitted that the Court cannot cognize such arguments predicated on matters which are not borne out of the records. The record of appeal is the eye of an appeal, and an appellate Court can only decide appeals based on the contents of the record, citing Opara v Paul & Ors (2019) LPELR-47678 (CA). It was submitted, therefore, that the arguments of the Respondents predicated on the motion of 18/11/2020 and the ruling of the lower Court dismissing same on 9/12/2020 are idle for purposes of determination of the instant appeal. The Court was urged to discountenance the contentions of the Respondents in this regard.

Resolution
The Appellant’s Counsel has rightly contended that the issues relating to the ruling of the lower Court made on 9/12/2020 upon the motion on notice filed by the 1st and 2nd Respondents are entirely extraneous to

this appeal. It is trite that the Court and the parties are bound by the record; Onwuka v Ononuju (2009) LPELR-2721(SC). No appeal can be founded by a decision that is not part of the record of appeal for the Court cannot go outside the record; Enekwe v IMB Ltd (2006) LPELR-1140(SC); Olorunyolemi v Akhagbe (2010) LPELR-2597(SC). The Court cannot therefore consider any issues arising from the ruling of the lower Court delivered on 9/12/2020. I therefore see no merit in this ground of the objection.

In all, the preliminary objection succeeds in part. In the light of the findings and conclusion that the appeal is premature and for this reason, incompetent, the appeal ought to abate at this stage. For this reason, the Court shall not go further to engage in the consideration of the issues raised in the substantive appeal as it is now unnecessary.
It is also ordered that parties are to bear their costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I agree.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my Lord ONYEKACHI AJA OTISI, JCA in which my lord upheld the preliminary objection in part. I completely agree with my lord’s

upholding of the preliminary objection and consequently, the hearing of this appeal abates.
I abide by the order that parties are to bear their costs.

Appearances:

R.I. NKANNEBE, ESQ. For Appellant(s)

ADESOJI ADEDOYIN, ESQ. – for 1st and 2nd Respondents
BOLANLE BABAJIDE, ESQ. – for 3rd Respondent
ADETOKUNBO DAVIES, ESQ. – for 4th Respondent For Respondent(s)

LawCare Nigeria

admin

YOU MAY HAVE MISSED

UNDERSTANDING CONTRACT LAW FOR BUSINESS TRANSACTIONS IN NIGERIA

Protecting Minority Shareholders in a Nigerian Company

Agency and Distribution Agreements in Nigeria: What You Need to Know

Franchising Your Business in Nigeria: Key Legal Considerations

admin

Related Story

YOU MAY HAVE MISSED