EKEJIUBA v. A.N.S.I.E.C. & ORS
(2020)LCN/14478(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, July 09, 2020
CA/AW/808/2019
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
BARRISTER JEZIE EKEJIUBA APPELANT(S)
And
- ANAMBRA STATE INDEPENDENT ELECTORAL COMMISSION (ANSIEC) 2. MR. JOHN C. ONUH 3. ALL PROGRESSIVE GRAND ALLIANCE (APGA) RESPONDENT(S)
RATIO
WHAT CONSTITUTES A PRE-ELECTION MATTER
The Supreme Court painted a clear picture of what constitutes a Pre-election matter in the case of WAMBAI V. DONATUS (2014) 14 NWLR (PT. 1427) 223 at 257 thus:
“The unlawful substitution of the 1st Respondent and replacement with the Appellant is the Centre piece of the 1st Respondent’s Claims. Unlawful substitution is Claim No 1. It is a Pre-election matter.”
Having labeled the case of the Appellant a Pre-election matter, it is Governed by the provisions of Section 285 (12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Section 285 (12) states:
“An appeal from a decision of a Court in a Pre-election matter shall be heard and disposed of within sixty days from the date of filing the appeal.”
(underlining mine for emphasis). PER NWOSU-IHEME, J.C.A.
THE FUNDAMENTAL ISSUE OF STATUTE OF LIMITATION
The issue of Statute of Limitation is very fundamental. It touches on jurisdiction of the Court. It follows therefore that where an action is statute barred, the consequences is that the right of action becomes extinguished by law and unenforceable by a Court action for ever, so that the Claimant remains without a remedy and his Claims would be dismissed. See EMIATOR V. NIGERIA ARMY (1999) 12 NWLR (PT. 631) 362. ONUMALOBI V. N.N.P.C. (1999) 12 NWLR (PT. 632) AT 639. PER NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant was the Plaintiff at the lower Court in a Suit he filed against the Respondents at the Atani Division of the Anambra State High Court. In a considered Judgment delivered by A. O. Okuma J, on the 8th of July, 2019 in Suit No A/6/2014, the learned trial Judge upheld the Preliminary Objection raised by the 1st & 2nd Respondents to the effect that the Appellant lacked the locus standi to institute the action. He proceeded to strike out the Suit for want of jurisdiction. This Appeal is predicated on the said judgment.
SUMMARY OF FACTS:
The Appellant’s case revolves on the fact that in 2003, he was nominated as candidate for All Progressive Grand Alliance (APGA) for the councillorship seat of Owerre-Ezukala Ward 2 in Orumba South Local Government Area of Anambra State for the Local Government general election scheduled to hold in 2004.
It is the case of the Appellant that the said election was severally postponed until it was fixed by the 1st Respondent for 11th January, 2014 and finally conducted on that day.
The Appellant contended that until
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he withdraws his candidature, that his nomination in 2003 still subsisted until election was conducted in 2014.
The 1st Respondent (ANSIEC) in 2013 announced the conduct of Local Government elections in the State on 11/1/14 and called on Political parties to conduct Primary elections for that purpose and nominate their candidates. Appellant did not participate in the said election of the All Progressive Grand Alliance (APGA) but rather wrote the 1st Respondent (ANSIEC) and APGA asking them to recognize and give effect to his nomination of 2003/2004.
The 2nd Respondent in his amended Statement of defence filed on the 13/6/16 raised a preliminary objection to the competence of the Suit.
The 2nd Respondent also raised a preliminary objection in this Court to the competence of this appeal on the grounds that:
“Appellants appeal having arisen from a pre-election Suit is statute barred and liable to be struck out in that:
a. The present appeal is not determined within sixty days from the date of filing of the Notice of Appeal contrary to Section 285 (12) of the 1999 Constitution (as amended) and
b. The Suit was determined by the
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lower Court more than 180 days from the date of institution of the Suit at the High Court contrary to Section 285 (10) of the 1999 Constitution (as amended).”
In his argument on the Preliminary objection, learned counsel for the 2nd Respondent, Dr. C. B. Anyigbo Esq argued, in summary, that the present Suit arose from a pre-election matter, and therefore the appeal arising therefrom ought to be determined within 60 days of the filing of the Notice of Appeal, otherwise it becomes statute barred and this Court divested of jurisdiction to entertain same. He cited paragraphs 7 – 29 of the Appellant’s Amended Statement of Claim at pages 7 – 11 of the Record of Appeal.
Counsel contended that at page 12 of the Records, Four of the principal reliefs sought by the Appellant deal with alleged unlawful substitution of the Appellant. That since the case of the Appellant border on nomination and substitution of his alleged candidature, that his case falls squarely as a pre-election matter. He cited GWEDE V. INEC (2014) 18 NWLR (PT. 1438) Page 56. He therefore posited that having shown that the Appellant’s case is a Pre-election
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matter, it is governed by Section 285 (12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Apart from this appeal being caught up by the provisions of the aforementioned Section 285 (12), Counsel maintained that the Suit at the trial Court was determined more than 180 days from instituting same and consequently incapable of giving rise to a valid Appeal. He urged this Court to uphold the Preliminary objection and strike out this Appeal having been caught by the Statute of Limitation.
Reacting to the foregoing, Jezie Ekejiuba Esq the Appellant, who appeared in person, argued in summary, that his case is neither a Pre-election case nor a Post-election case, but a form of action challenging the unlawful substitution of his candidature.
That he is also challenging the denial of his rights to Certificate of Return, tenure of the office and Claim for damages in accordance with the Legal maxim ubi jus ibi remedium (where there is a right, there is a remedy). He posited that the said provisions of Section 285 (10) and (12) relied upon the Counsel for the 2nd Respondent in his Preliminary objection do not apply to the instant
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appeal. He contended that having spent not less than Two Million Naira as well as other expenses incurred on campaign mobilization etc that he was entitled to sue for damages. He cited ADEWUMI V. A. G. EKITI STATE (2002) NWLR (PT. 751) 454 at 525 OLALE V. EKWELENDU (1989) 4 NWLR (PT. 115) 344.
Let me deal with the Preliminary objection raised by learned Counsel for the 2nd Respondent. A resolution of the Preliminary objection will also determine the need or necessity to grapple with the appeal proper.
A look at page 12 of the Record of Appeal shows clearly that four of the main reliefs sought by the Appellant in his Amended Statement of Claim deal with unlawful substitution. Let me reproduce same for ease of reference:
1. “A declaration that the only way the 1st Defendant, Anambra State Independent Electoral Commission can substitute, remove or abandon a duly nominated and sponsored candidate of a Political Party is by order of Court.
2. A declaration that there is no Court order, just cause or legal reason whatsoever for the 1st and 3rd Defendants to remove or abandon the name and candidacy of the Plaintiff and replace or substitute
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same with that of the 2nd Defendant as Councillorship Candidate of All Progressive Grand Alliance (APGA) for Owerre Ezukala Ward 2 in the postponed but re-scheduled Anambra State Local Government elections for January 11, 2014 or any other postponed date.
3. A declaration that it is unconstitutional, illegal and unlawful for the 1st and 3rd Defendants to remove or abandon the name and candidacy of the Plaintiff and replace or substitute same with that of the 2nd Defendant, an impostor, as the APGA Councillorship candidate for Owerre Ezukala Ward 2 in the postponed date after the Plaintiff has first been duly nominated and sponsored by the 3rd Defendant, APGA as its candidate and after the 1st Defendant, ANSIEC has accepted the nomination and sponsorship of the Plaintiff and published the name and particulars of the Plaintiff in accordance with the extant law.
4. A declaration that the purported removal or abandonment of the Plaintiff’s name and candidacy and replacement or substitution of same with that of the 2nd defendant is wrongful, illegal, null and void ab initio.”
(underlining mine for emphasis)
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It is quite clear from the foregoing that the case of the Appellant revolves round substitution and nomination of his candidature. It is no doubt a Pre-election matter, and I so hold.
The Supreme Court painted a clear picture of what constitutes a Pre-election matter in the case of WAMBAI V. DONATUS (2014) 14 NWLR (PT. 1427) 223 at 257 thus:
“The unlawful substitution of the 1st Respondent and replacement with the Appellant is the Centre piece of the 1st Respondent’s Claims. Unlawful substitution is Claim No 1. It is a Pre-election matter.”
Having labeled the case of the Appellant a Pre-election matter, it is Governed by the provisions of Section 285 (12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Section 285 (12) states:
“An appeal from a decision of a Court in a Pre-election matter shall be heard and disposed of within sixty days from the date of filing the appeal.”
(underlining mine for emphasis)
Looking at pages 375 – 395 of the Record of Appeal, it is obvious that the Notice of Appeal in this case was filed on the 24th of September, 2019. Sixty days from 24/9/19 lapsed on the 22nd of November,
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- It is therefore statute barred. The Appellant cannot on his own determine under which compartment of the law to put his own case. It could easily be discerned from his Amended statement of Claimant of which has been reproduced earlier in this judgment. It is therefore clear that this appeal is caught up by the Limitation in Section 285 (12) of the 1999 Constitution (as amended).
By way of surplusage, I also wish to observe that even at the trial Court the Suit was determined more than 180 days from the day it was instituted. The present Suit was commenced by the Appellant on the 9th day of January, 2014. See (Page 1 of the Records).
Judgment in the said Suit was delivered by the trial Court on the 8th day of July, 2019. The Judgment was therefore delivered several years after the filing of the Suit. Put in another way, this appeal was dead on arrival and therefore there was even no valid Judgment of the High Court capable of being appealed against in this Court.
From both angles, this case is clearly caught by the Limitation in Section 285 (12) of the said 1999 Constitution as amended.
Even though the Appeal was dead on arrival, the
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Notice of Appeal was filed on the 24/9/2019 60 days from the said 24/9/2019 lapsed on the 22nd of November, 2019. As at today the 9/7/2020, the present appeal has become stale. The delay in my humble but firm view was inordinate and the consequences are irreversible. The issue of Statute of Limitation is very fundamental. It touches on jurisdiction of the Court. It follows therefore that where an action is statute barred, the consequences is that the right of action becomes extinguished by law and unenforceable by a Court action for ever, so that the Claimant remains without a remedy and his Claims would be dismissed. See EMIATOR V. NIGERIA ARMY (1999) 12 NWLR (PT. 631) 362. ONUMALOBI V. N.N.P.C. (1999) 12 NWLR (PT. 632) AT 639.
Accordingly, there is merit in this Preliminary objection and it is hereby upheld.
The determination of the Preliminary objection renders a consideration of the main appeal unnecessary as it has become academic.
Having upheld the Preliminary objection, appeal No CA/AW/808/2019 which is statute barred is hereby dismissed.
I must not fail to point out that his appeal is a gross abuse of the process of Court and a
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typical example of the Appellant making a mockery and a caricature of a very serious business. It is condemnable.
The law does not recognise candidate in perpetuity. The Appellant cannot continue to describe himself as a “candidate for Councillorship of All Progressive Grand Alliance for Owerre – Ezukala Ward 2 Orumba South L. G. A. of Anambra State since 2003/2004 a period of over sixteen years (16).”
The conduct of the Appellant who is a Legal Practitioner was most unprofessional and unbecoming. His decorum and conduct in Court was nothing to write home about. Lawyers like Jezie Ekejiuba Esq drag the learned profession to the mud.
Since costs follow events, I award N100,000 (One Hundred Thousand Naira) costs against this recalcitrant Appellant.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother CHIOMA NWOSU-IHEME, (Ph. D) JCA.
I agree with her reasoning and conclusions.
Having painstakingly perused the history of this case, there is no doubt that it is statute barred, as the Appellant did not exercise his right to appeal in respect of a pre-election matter as at
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the time he needed to.
More so, for a candidate that was fielded in 2003, to now come in 2015, basing on the event of 2003, to sustain his capacity to take part in a party’s primaries, is fool hardy, as decidedly a Court cannot entertain a candidate in perpetuity – PDP V. TIMIPRE-SYLVA 2012 13 NWLR (Part 1316) 85. Not having taken part in the primary election in 2003 that has been cancelled, the Appellant cannot come over in 2015 to participate in primaries, citing the fact that he was denied participation in 2003.
In order to avoid bringing Pre-election matters to Court ad infinitum the Legislature, in its wisdom, had laid down stipulated time within which the hierarchy of Courts can entertain pre-election matters.
Therefore, an aggrieved person who by sheer indolence, or inadvertence fails to initiate his pre-election matter within the time stipulated by law, stands the risk of having his matter struck out by sheer effluxion of time. I uphold the preliminary objection of the 2nd Respondent. I dismiss this appeal and I abide by the consequential order made as to costs.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
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Appearances:
Barr. Jezie Ekejiuba, the Appellant is present in person For Appellant(s)
Dr. C. B. Anyigbo, with him, A. V. Uzoechi – for 2nd Respondent For Respondent(s)
