EZE v. APC & ORS (2022)

EZE v. APC & ORS

(2022)LCN/16508(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, October 14, 2022

CA/OW/269/2022(R)

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

IN THE MATTER OF APPLICATION BY: OBINNA ORIAKU EZEAPPELANT(S)

And

1. ALL PROGRESSIVES CONGRESS 2. SENATOR ABDULLAHI ADAMU (THE CHAIRMAN ALL PROGRESSIVES CONGRESS) 3. HIGH CHIEF IKECHI EMENIKE 4. INDEPENDENT NATIONAL ELECTORAL COMMISSIONRESPONDENT(S)

RATIO:

THE JUDGEMENT OF A COURT IS NOT TO BE CONSTRUED BY TAKING PARAGRAPHS OR PAGES IN ISOLATION OR IN QUARANTINE

It is hornbook law that the judgment of a Court is not to be construed by taking paragraphs or pages in isolation or in quarantine. The entire judgment is to be construed together as a single decision. The judgment is not to be read in convenient instalments. See ADEBAYO vs. A-G OGUN STATE (2008) 2 SCNJ 352 at 366-367 or (2008) 7 NWLR (PT 1185) 201 at 221, FIJABI vs. FBN (2021) LPELR (53351) 1 at 31,ADEGBUYI vs. APC (2015) 2 NWLR (PT 1442) 1 at 24-25 and vs. FRN (2020) LPELR (51085) 1 at 81-83. The Applicant’s volte face in Court wherein he contended that the decision of this Court is that the action is not a pre-election matter is predicated on an isolated LAWAN interpretation of passages from the judgment which is not to be done. The judgment remains an integral unit and when construed as such it is evident that the decision is that it is a pre-election matter in respect of which the complaint raised falls within the jurisdiction of a State High Court. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
A PARTY IS NOT ALLOWED TO APPROBATE AND REPROBATE ON ONE ISSUE

Consistency is the rule of the game. The Applicant in the grounds of his application and supporting affidavit clearly stated that the action was a pre-election matter in respect of which he had fourteen (14) days to appeal as provided for in Section 285 (11) of the 1999 Constitution (as amended). It is not acceptable for the Applicant to argue in Court, contrary to the case made out in his application, that the action was not a pre-election matter and that Section 285 (11) of the 1999 Constitution was inapplicable. A party is not allowed to approbate and reprobate on one issue: ADEOKIN RECORDS vs. MCSN LTD/GTE (2018) LPELR (45300) 1 at 19-24. The Applicant’s approbation and reprobation cannot be sanctioned by a Court. See COMPTROLLER-GENERAL OF CUSTOMS vs. GUSAU (2017) 18 NWLR (PT 1598) 353, AJUWON vs. GOV OF OYO STATE (2021) LPELR (55339) 1 at 34-35, ADEGBANKE vs. OJELABI (2021) LPELR (54992) 1 at 49 and FIRST BANK vs. STALLIONAIRE NIG LTD (2022) LPELR (57330) 1 at 20. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

A PERSON INTERESTED IN THE DECISION OF A COURT TO APPEAL WILL DO SO WITH THE LEAVE OF THE COURT

The law in its wisdom recognises the probability of there being a circumstance in which a person who is not a party to an action may be interested in the action on the basis that the decision in the matter affects his interest. Consequently, the law has provided for such a person interested in the decision of a Court to appeal against the same, but with leave of the Court. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE SETTLED LAW ON THE NATURE OF INTEREST TO QUALIFY A PERSON TO APPEAL AS A PERSON INTERESTED

In determining the nature of interest to qualify a person to appeal as a person interested, the apex Court in NWAOGU vs. ATUMA (2012) LPELR (19648) stated thus:
“The law is indeed well settled that the nature of interest to qualify a party to appeal as person interested or as a person having interest in the matter is as defined…(in ) IN RE: UGADU (1988) 5 NWLR (PT 93) 189 at 202 –
‘Concisely stated, the interest which will support an application under the provisions must be genuine and legally recognized interest in respect of a decision which prejudicially affects such witness.’”
Put differently, the operative phrase in the constitutional provision for the purpose of this application is “at the instance of any other person having an interest in the matter”. In other words, any other person who will be affected or is likely to be affected by the outcome of a matter before a Court. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgement): By an application filed on 12th September 2022, the Applicant seeks the following order:
”1. An Order granting leave to Obinna OriakuEze to appeal against the judgment of the Court of Appeal in Appeal No.: CA/OW/269/2022, All Progressives Congress &Another .v. High Chief Ikechi Emenike& Another delivered on 2nd day of September, 2022 as a party affected by the judgment of the Court.”

The grounds upon which the application is predicated are as follows:
“1. The Applicant’s name was to be forwarded to the Independent National Electoral Commission as the gubernatorial candidate of the All Progressives Congress for the forthcoming Abia State gubernatorial election in 2023.
2. The 3rd Respondent (High Chief Ikechi Emenike) filed a Suit and prayed the Court to declare him as the gubernatorial candidate of the All Progressives Congress for the forthcoming Abia State gubernatorial election in 2023.
3. The 3rd Respondent (High Chief Ikechi Emenike) did not join the Applicant whose interests were adversely affected bythe orders made by the Court, to the Suit.
4. This honourable Court has powers to grant leave to persons who are affected by the orders of the Court to appeal against the judgment.
5. The Applicant has only 14 days to appeal against the judgment of the Court of Appeal by the provisions of the 1999 Constitution of the Federal Republic of Nigeria.”

The application is supported by an affidavit of five paragraphs, (paragraph four of which has fifteen sub-paragraphs) to which the documents relied upon were attached as exhibits. A written address was equally filed in support of the application; and a list of additional authorities was further filed on 19th September 2022.

The Appellants before this Court were Respondents to the application and they filed a Counter Affidavit of fifty-seven paragraphs on 14th September 2022. The documents they relied upon were attached as exhibits to the Counter Affidavit, as well as the written address they filed in opposition to the application. In the same vein, on 16th September, 2022, the 1st Respondent before this Court, who was the Plaintiff at the trial Court, filed a Counter Affidavit of fifty-seven paragraphs with exhibits and a written address in opposition to the application. The 2nd Respondent before this Court, the Independent National Electoral Commission (INEC), did not file any processes in respect of the application and was also not represented at the hearing of the application.

At the hearing of the application on 19th September 2022, John Awa Kalu, Esq. (with Adekunle Kosoko, Esq.) learned counsel for the Applicant, Prof Sam Erugo, SAN (with V. C. Nwankwo, Esq.), learned counsel for the Appellants/Respondents and Fabian Okonkwo Esq., of counsel for the 1st Respondent adopted and relied on their processes in urging the Court to uphold their respective submissions in the determination of the application.

The Applicant did not formulate any issue for determination in his written address. However, the Appellants/Respondents and the 1st Respondent in their respective written addresses, distilled two issues for determination. The said issues are similarly worded, just as the submissions in their written addresses are the same verbum ad verbum. This being so, the review of one address is the review of the other.

The issues distilled by the Respondents are as follows:
1. Whether or not this Honourable Court is clothed with vires/jurisdiction to hear and determine this application of the Applicant?
2. If the answer to issue No. 1 above is in the positive/affirmative, whether the Applicant has made out a good case as to be entitled to the reliefs sought by him in this application.

SUBMISSIONS OF LEARNED COUNSEL
The Applicant submits that his name was to be forwarded to the 2nd Respondent, INEC, as the gubernatorial candidate of the 1st Appellant/Respondent, the All Progressives Congress (APC), for Abia State, after it was discovered that the 1st Respondent who won the primary election was not a member of the 1st Appellant/Respondent. It was stated that the 1st Respondent thereafter obtained an order of Court for his name to be forwarded to INEC as the candidate, without joining the Applicant as a party. It was asserted that the orders adversely affected the fortunes of the Applicant and that the Applicant only had 14 days to appeal against the orders as an affected party.

It was maintained that the deposition in the supporting affidavit establish that the Applicant has an interest in the subject matter and that his interest was adversely affected by the decision of the Court. The cases of A-G FEDERATION vs. M.A.N. (2008) ALL FWLR 524 at 534 and C.A.C. vs. REG. TRUSTEES C.C.C. (NIG) DIOCESE (2010) ALL FWLR 423 at 436-437 were referred to on the test to determine the meaning of “a party or person interested” as envisaged under Section 243 (a) of the 1999 Constitution.

Still in argument, the Applicant’s learned counsel in oral submissions at the hearing posited that by the decision of this Court which the Applicant seeks to appeal against, it was held that the case is not a pre-election matter and so Section 285 (11) of the 1999 Constitution, as amended, which requires that an appeal be filed within fourteen (14) days of the decision did not apply. It was further stated that even if it is a pre-election matter, which he did not concede; that since the application was filed within fourteen (14) days; the Court can still grant the application in the interest of justice.

In replication, the Respondents submit that the Court does not have jurisdiction to entertain the Applicant’s application. On the importance of jurisdiction, the cases of ONI vs. CADBURY NIG PLC (2016) 9 NWLR (PT 1516) 80 at 88 ratio 9, EMEKA vs. OKADIGBO (2012) 18 NWLR (PT 1331) 55 and MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR [no page stated] were relied upon. It was submitted that the Applicant admitted that he came second in the primary election, which was won by the 1st Respondent, as a result of which the Applicant lacks the locus standi to seek leave to appeal against the decision of this Court, which affirmed the judgment of the trial Court by which the 1st Respondent got judgment securing his nomination and candidature. It was therefore asserted that the Applicant cannot be an interested party who can be granted leave to appeal against the judgment of this Court as he is not a necessary party. The cases of REGD TRUSTEES, ACT OF APOSTLES CHURCH vs. FATUNDE (2016) 11 NWLR (PT 1523) 211 at 214 ratio 2, IKONNE vs. COP (1986) 14 NWLR (PT 36) 473, RE: MADAKI (1996) 7 NWLR (PT 459) 153 and WILLIAMS vs. MOKWE (2005) 14 NWLR (PT 945) 249 were called in aid.

It is the further contention of the Respondents that the application is incompetent because leave is not required to appeal in a pre-election matter and that the notice of appeal is to be filed within fourteen (14) days from the decision appealed against vide Section 285 (9) and (11) of the 1999 Constitution, as amended. The cases of OGAH vs. EMENIKE (2019) LPELR-46644 (CA) and PPA vs. INEC (2012) 13 NWLR (PT 1317) 215 were cited in support. It was thus posited that the application was academic. The cases of UME vs. EJIKE (2013) LPELR-23506 (CA), ODEDO vs. INEC (2008) NWLR [no volume stated] (PT 117) [sic] 554 or (2008) 7 SCNJ 1 and OLUBODE vs. SALAMI (1985) 2 NWLR (PT 7) 283 were referred to.

The submissions of the Respondents on their second issue is that the Applicant has not made out a good case for the grant of the application. It was asserted that the Applicant had failed to establish his interest in the subject matter of the action as he had admitted in his affidavit that he lost at the primary election and the action by the 1st Respondent was to protect his candidature after his nomination. It was conclusively submitted that the Applicant had not established in his affidavit evidence that he has an interest in the judgment he seeks to appeal against. The cases of REGD TRUSTEES, ACT OF APOSTLES CHURCH vs. FATUNDE (supra), RE: MADAKI (supra) and WILLIAMS vs. MOKWE (supra) were relied upon.

RESOLUTION
In order to conduce to the utmost pellucidity, it is imperative to start from the provenance of this matter. In preparation for the upcoming general elections, the 1st Appellant in obeisance to the legal prescriptions conducted primaries to elect the candidate it would sponsor for the Governorship election for Abia State. Among the candidates who contested the primary election, which was held on 26th May 2022, were the Applicant and the 1st Respondent. The 1st Respondent was returned as the winner of the said primary election. There was no complaint about the conduct of the primary election by any of the contestants. Put differently, it was agreed that the primary election was conducted in accordance with the laws and regulations in respect thereof.

Subsequently, the 1st Respondent on the basis of there being a plot for his name not to be submitted to the 2nd Respondent instituted proceedings before the High Court of Abia State to protect the mandate he secured at the primary election and to ensure that his name was submitted to the 2nd Respondent, INEC. The Respondents to the said action which was commenced by Originating Summons in SUIT NO. HUM/31/2022: HIGH CHIEF IKECHI EMENIKE vs. ALL PROGRESSIVES CONGRESS & ORS., were the Appellants before this Court, id est, the All Progressives Congress and its National Chairman; who had the statutory responsibility to submit the name of the 1st Respondent to the 2nd Respondent, INEC, which had the statutory duty to accept and publish the names of the nominated candidates. In its judgment, the lower Court found for the 1st Respondent and, inter alia, ordered the 1st Appellant to upload the 1st Respondent’s name to the 2nd Respondent, INEC, and for the 2nd Respondent to accept the election/nomination of the 1st Respondent as the 1st Appellant’s Governorship candidate for Abia State at the 2023 General Elections.

The Appellants were dissatisfied with the decision of the lower Court and appealed against the same. In the judgment of this Court delivered on 2nd September 2022, the appeal was dismissed and the decision of the lower Court was affirmed. It is against the decision of this Court that the Applicant seeks leave to appeal as a party affected by the judgment by his application filed on 12th September 2022. It is pertinent to emphasise that the cause of action ventilated at the trial Court had no bearing with the propriety of the conduct of the primary election or the validity of the return made at the primary election. It was principally and solely for purposes of enforcing the outcome of the primary election by ensuring that the name of the 1st Respondent who won the primary election was submitted to the 2nd Respondent by the Appellants and for the 2nd Respondent to also accept the name. The pertinent question is whether the decision in respect of this cause of action could have “adversely affected” the Applicant; when it is remembered that none of the persons who contested the primary election, challenged the conduct or result of the primary election and the Applicant on his own showing concedes that it was the 1st Respondent that won the primary election?

The Respondents have contended that the Appellant’s application is incompetent on the grounds, inter alia, that the Applicant, by Section 285 (11) of the 1999 Constitution, as amended, has fourteen (14) days within which to appeal against the decision of this Court and that the time within which to appeal has effluxed, thereby making the application academic. Even though the Applicant stated in his processes that he had fourteen (14) days within which to appeal, at the hearing of the application he made a volte face and asserted that Section 285 (11) of the 1999 Constitution did not apply since this Court had held that the action was not a pre-election matter; and that even where it is a pre-election matter that this Court should still grant the application notwithstanding that the fourteen (14) days had elapsed, since the application was filed within the stipulated fourteen (14) days for the filing of an appeal.

Now, it cannot be confuted that the subject matter of the action is in respect of the Governorship candidate of the 1st Appellant for Abia State for the forthcoming 2023 general elections. Indeed, there was no issue raised in this Court as to whether the matter was a pre-election matter. In aliis verbis, it never came up for determination in this Court whether the action was a pre-election matter. The contest was whether the pre-election matter was such that could be entertained by a State High Court as opposed to the Federal High Court pursuant to Section 84 (14) of the Electoral Act, 2022. The first issue for determination before this Court was:
“Whether the trial Court was vested with jurisdiction to entertain the suit having regard for the express provisions of Section 285(14) of the 1999 Constitution (as amended) Section 84(14) of the Electoral Act, 2022 (as amended) [sic] and Section 251(1) of the 1999 Constitution (as amended).”
(See page 9 of Exhibit 4 of Applicant’s Motion)

In review of the submissions of learned counsel on the above issue one in the lead judgment of this Court on page 10 of Exhibit 4 of the Applicant’s motion, the submission was captured thus:
“It was argued that since the matter presented by the 1st Respondent is a pre-election matter, it is impacted by the extant and express provision of Section 84(14) of the Electoral Act which vests exclusive jurisdiction on the Federal High Court in respect of pre-election matters and bars all other Courts from entertaining pre-election matters and bars all other Courts from entertaining pre-election disputes as a Court of first instance. Counsel then cited the case of MARWA & ORS VS. NYAKO & ORS (2012) LPELR–7837 (SC) (PP. 172 PARAS A) and argued further that the trial Court was in grave error when it entertained and determined the suit of the 1st Respondent as constituted before it and was supposed to decline jurisdiction.”

In resolving the said issue number one, this Court (per Idris, JCA), after setting out the provisions of Section 285 (14) of the 1999 Constitution (as amended), Section 84 (14) of the Electoral Act, 2022 and Section 251 (1) of the 1999 Constitution (as amended), held as follows at pages 16-18 of Exhibit 4 of the Applicant’s motion:
“A conjunctive reading of the reproduced provisions above clearly shows that Section 285 (14) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) defines what a pre-election matter is. Section 84(14) of the Electoral Act 2022 (as amended) provides for the jurisdiction of Court to hear pre-election matters stemming from the non-compliance with the provisions of the Electoral Act and the Party Guidelines while Section 251(1) of the 1999 Constitution (as amended) provides for the exclusivity of the jurisdiction of the Federal High Court to hear and determine certain causes and matters.
The question to ask at this point is: does the suit subject matter of the appeal fall under the umbrella of these provisions? This is quite clear because looking at the claim of the 1st Respondent contained in the affidavit in support of the originating summons filed at the lower Court, the 1st Respondent gave a chronological explanation about the compliance of the Appellants with the party’s Constitution, guidelines and the Electoral Act, 2022 in the conduct of the primary election of his party for the nomination of gubernatorial candidates that finally returned him as a winner. Moving therefrom, it is also clear that his contention was that some aggrieved aspirants of the 1st Appellant are making clandestine plan to ensure that his name is not submitted by the 1st Appellant to the 2nd Respondent as her candidate and that his name is not uploaded and published by the 2nd Respondent as the candidate of the 1st Appellant in Abia State for the general election.
Owing to the clear fact before this Court, can it still be said that the claim of the 1st Respondent falls under Section 285(14) to set in motion the running wheel of Section 84(14) of the Electoral Act 2022? The answer would be a clear NO!
If this is the case, would the provisions of Section 251(1) of the Constitution of the Federal Republic of Nigeria (1999) (as amended), apply to his case? Here again, the answer will be another resounding NO!
The importance of these highlights is to show that Section 84(14) of the Electoral Act, 2022 (as amended) has given exclusive jurisdiction to the Federal High Court in pre-election matter where an aspirant complains that any of the provisions of the Electoral Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidature of a political party for election, which is clearly not the complaint of the 1st Respondent as he agrees that the Constitution and guidelines of the 1st Appellant likewise the provision of the Electoral Act, 2022, were complied with in returning him a winner but he ran to seek refuge in the arms of the law to protect his status as a winner and nothing more.”

It was then conclusively held as follows at pages 18-19:
“Flowing from findings I have already made hereinabove, it is thus clear that the lower Court had the jurisdiction to have adjudicated on the matter as the issue in this case is not one that falls within the ambit of Section 285(14) of the Constitution and Section 84(14) of the Electoral Act, and therefore Section 84(14) of the Electoral Act cannot apply. Furthermore, the provisions of Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria cannot hand exclusivity to the Federal High Court in the light of this case. It also follows that both the Federal High Court and the State High Court (in this case, the High Court of Abia State) has the jurisdiction to adjudicate over the instant suit leading to this appeal.
It is thus my unshaken belief that the suit of the 1st Respondent was properly brought before the lower Court and the said Court had the jurisdiction as it did to adjudicate on the matter.”

In his concurring opinion to the lead judgment, Georgewill, JCA stated as follows in the said Exhibit 4: “Now, by an Origination [sic] Summons filed on 1/6/2022, the 1st Respondent as Claimant had submitted before the lower Court, the High Court of Abia State, in the Umunneochi Judicial Division sitting at Nkwoagu Isuochi, four questions for determination including inter alia the question whether by the combined provisions of Section 84(1) of the Electoral Act 2022 and Article 13.3 of the Constitution of All Progressives Congress, 2022 (as amended), the All Progressive Congress and the Independent National Electoral Commission are not bound to accept and publish the name(s) of the Candidate(s) that emerged the winners of the Primary Elections conducted by the National Executive or National Working Committee of the All Progressive Congress through a Committee appointed for that purpose? The parties were ad idem before the lower Court on all the facts of this case. See pages 52, 55 – 56 of the Record of Appeal.
My lords, from the above it is clear that the 1st Respondent’s suit was a Pre-Election matter which can by law be heard and determined by Federal High Court or the High Court of the States or the Federal Capital Territory High Court. It is my view, and I so hold that the 1st Respondent’s suit as Claimant before the lower Court was properly instituted and was also competently heard and determined by the lower Court, being the High Court of Abia State, which is one of the Courts with the requisite jurisdiction to hear and determine Pre-Election matters in Nigeria, including the 1st Respondent’s suit.”

After setting out the provision of Section 285 (14) of the 1999 Constitution (as amended) Georgewill, JCA conclusively held:
“My lords, from the above provisions of Section 285 (14) of the Constitution of Nigeria 1999 (as amended) both the Federal High Court, the High Courts of the States and the High Court of the Federal Capital Territory have concurrent jurisdiction to hear and determine Pre-Election matters.
In the leading judgment, it has most brilliantly been demonstrated that the claims of the 1st Respondent, the Claimant before the lower Court, is clearly one within the requisite jurisdiction of the lower Court, being the High Court of Abia State of Nigeria. It follows therefore, the lower Court had the requisite jurisdiction to hear and determine the 1st Respondent’s suit as it had competently done.”

The foregoing pericope from the decision of this Court makes it effulgent that the ratio decidendi of this Court is that the cause of action ventilated by the 1st Respondent at the trial Court was a pre-election matter that was within the jurisdiction of the trial Court, the High Court of Abia State, since it did not complain that any of the provisions of the Electoral Act and the guidelines of the 1st Appellant were not complied with in the primary election conducted by the 1st Appellant, which is the nature of complaint in which jurisdiction is vested in the Federal High Court by Section 84 (14) of the Electoral Act, 2022.

It is hornbook law that the judgment of a Court is not to be construed by taking paragraphs or pages in isolation or in quarantine. The entire judgment is to be construed together as a single decision. The judgment is not to be read in convenient instalments. See ADEBAYO vs. A-G OGUN STATE (2008) 2 SCNJ 352 at 366-367 or (2008) 7 NWLR (PT 1185) 201 at 221, FIJABI vs. FBN (2021) LPELR (53351) 1 at 31,ADEGBUYI vs. APC (2015) 2 NWLR (PT 1442) 1 at 24-25 and LAWAN vs. FRN (2020) LPELR (51085) 1 at 81-83. The Applicant’s volte face in Court wherein he contended that the decision of this Court is that the action is not a pre-election matter is predicated on an isolated interpretation of passages from the judgment which is not to be done. The judgment remains an integral unit and when construed as such it is evident that the decision is that it is a pre-election matter in respect of which the complaint raised falls within the jurisdiction of a State High Court.

The position therefore remains that as already demonstrated in this ruling, this matter is a pre-election matter and the provisions of Section 285 (11) of the 1999 Constitution (as amended), governs the period within which an appeal is to be lodged against the decision of this Court which was delivered on 2nd September 2022. The Applicant therefore has fourteen (14) days to appeal as a person interested pursuant to Section 243 (1) (a) of the 1999 Constitution as amended: IBEZIM vs. ARARUME (2022) LPELR (56936) 1 at 22, OGUNGBEJE vs. APC (2021) LPELR (55658) 1 at 18 and CHIKAODILI vs. IFEANYI (2022) LPELR (58267) 1 at 8-9.
The Applicant filed his application on 12th September 2022, being the eleventh day after the decision of this Court. On 14th September 2022, being the thirteenth day after the judgment of this Court, the Applicant obtained an order of this Court to serve the application on the 1st Respondent by substituted means. Resultantly, by 19th September 2022 when this application was argued, it was the eighteenth day and the time within which to appeal had already expired. The time within which to appeal having expired, it will be inutile and ineffectual to grant any leave to appeal as an interested party, more so as time cannot be extended: ITANYI vs. BAGUDU (2018) LPELR (46984) 1 at 40, CHIKAODILI vs. IFEANYI(supra) at 7-8, OBI vs. MOSES (2020) LPELR (51148) 1 at 25-33, APC vs. UMAR (2019) 8 NWLR (PT 1675) 575, APC vs. ENWEREM (2020) LPELR (51445) 1 at 5-10 and APC vs. ENWEREM (2022) LPELR (57816) 1 at 32.

I am cognisant of the Applicant’s submission that the application can still be granted since it was filed within the stipulated period of fourteen (14) days within which to appeal. It is rudimentary law that election and pre-election matters are sui generis and time is of the essence in a pre-election matter. See WAMBAI vs. DONATUS (2014) 14 NWLR (PT 1427) 223 at 247 and 260, IWOK vs. NYANG (2022) LPELR (57682) 1 at 30 and GWEDE vs. INEC (2014) LPELR(23763) 1 at 547. This being so, the time within which to appeal in a pre-election matter cannot be extended vide PDP vs. VALENTINE (2021) LPELR (56426) 1 at 18-19, ANPP vs. GONI (2012) 7 NWLR (PT 1298) 147, COLE vs. UMAH (2018) LPELR (46651) 1 at 3.
The Applicant as earlier stated filed his application on the eleventh day after the judgment of this Court. I am aware of the benevolent provisions of Order 6 Rule 6 of the Court of Appeal Rules, 2021 which stipulates:
“6. Where an application for leave to appeal from a decision of the lower Court has been brought within the time prescribed by the Court of Appeal Act but has not been heard within that period, the Court, if satisfied that there has not been an unreasonable delay in bringing the application, may extend time to appeal and in the proper case, grant leave to appeal.”
The Applicant can however not take benefit of this provision. In the first place, the time prescribed to appeal is a constitutional provision and not a provision of the Court of Appeal Act, secondly, there has definitely been unreasonable delay on the part of the Applicant in bringing the application, having filed the same when there was only three days remaining of the stipulated time to appeal and furthermore, the Applicant obtained an order for substituted service on 1st Respondent when there was only a day remaining of the time within to appeal. The effect therefore is that by the time the application was served on the 1st Respondent there was no longer any wiggle room for the appeal to be filed within the stipulated period. Accordingly, the matter being sui generis, and the stipulations of Order 6 Rule 6 of Court of Appeal Rules 2021 being inapplicable, the Applicant has been caught by the period limited within which to appeal. In a coda, this Court cannot make the order sought, the time to appeal having expired.

For good order sake, in the unlikely event that the opinion I have expressed thus far in the course of this ruling is not correct, I will now interrogate whether the Applicant made out a good case for the grant of the application by showing that he is a person interested. The law in its wisdom recognises the probability of there being a circumstance in which a person who is not a party to an action may be interested in the action on the basis that the decision in the matter affects his interest. Consequently, the law has provided for such a person interested in the decision of a Court to appeal against the same, but with leave of the Court. Section 243 (1) (a) of the 1999 Constitution (as amended) provides as follows:
“243- Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be:-
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or a High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of the accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities as may be prescribed;”
What a person needs to do to bring himself within the above provision is to show that he is a “person having interest in the matter”. In determining the nature of interest to qualify a person to appeal as a person interested, the apex Court in NWAOGU vs. ATUMA (2012) LPELR (19648) stated thus:
“The law is indeed well settled that the nature of interest to qualify a party to appeal as person interested or as a person having interest in the matter is as defined…(in ) IN RE: UGADU (1988) 5 NWLR (PT 93) 189 at 202 –
‘Concisely stated, the interest which will support an application under the provisions must be genuine and legally recognized interest in respect of a decision which prejudicially affects such witness.’”
Put differently, the operative phrase in the constitutional provision for the purpose of this application is “at the instance of any other person having an interest in the matter”. In other words, any other person who will be affected or is likely to be affected by the outcome of a matter before a Court. A stakeholder in a matter before the Court and this is usually referred to as “an interested party” or “person interested”. In IJELU vs. LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION (1992) LPELR-1464(SC) or (1992) NWLR (PT 266) 414 the Supreme Court posited that to qualify as persons interested in the matter within the meaning of that phrase in Section 213 (5) of the 1979 Constitution (which is in parimateria with Section 243 of the 1999 Constitution) the applicants must show that they have a legal interest in the subject matter of the dispute and might therefore have been a party to the suit. In JIKANTORO vs. DANTORO (2003) 4 NWLR (PT 809) 42, this Court, per Musdapher, JCA (as he then was) held, inter alia, that:-
“A person having interest has been judicially defined as including a person affected or likely to be affected or aggrieved or likely to be aggrieved … It is noteworthy that a person aggrieved or a person having an interest means a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. … It is stressed that an applicant for leave to appeal as an interested party must show that the decision has caused him some grief, loss, disadvantage or affected his title, rights or positions.”
See also IN RE: NIGERIA CUSTOMS SERVICE BOARD (2022)LPELR (56659) 1 at 39-40, EDE vs. NWIDENYI(1988) 12 SC (PT 3) 12 or (1988) LPELR (1003) 1 at 12-13 and OWENA BANK vs. NSE LTD (1997) 8 NWLR (PT 515) 1 or (1997) LPELR (2843) 1 at 31-32.
I have already extensively redacted the facts of this matter. It is agreed on all sides that the 1st Respondent was the winner of the primary election, so the Appellants were bound by law to submit his name to the 2nd Respondent, which was equally bound by law to accept the same. These are the parties that the 1st Respondent sued in his action at the trial Court in his desire to secure and enforce the mandate he got by winning the primary election. I iterate that there was no complaint about the conduct of the primary election. The Applicant also concedes that he did not win the primary election.
I have insightfully considered the supporting affidavit against the settled facts of this matter, and I am unable to see the legal grievance suffered by the Applicant; what he has been wrongly deprived of by the decision of the Court affirming the judgment of the trial Court and which prejudicially affected his interest. See OJEMALE INVESTMENT LTD vs. A-G FEDERATION (2011)ALL FWLR (PT 582) 1738, CAC vs. REGD TRUSTEES, CCC (NIG) DIOCESE (2010) ALL FWLR (PT 509) 423 and THE SECRETARY, IMPLEMENTATIONCOMMITTEE vs. ATOLOYE-KASSIM (2022) LPELR (57421) 1 at 21. In the circumstances, since the Applicant’s interest is not prejudicially affected, he is not entitled to the grant of leave to appeal as a person interested. See NWAOGU vs. ATUMA (supra), IN RE: AFOLABI (1987) 4 NWLR (PT 63) 18, ADEMOLA vs. SODIPO (1992) 7 NWLR (PT 253) 251 at 264-265 and SKYE BANK vs. AFRIBANK NIG PLC (2018) LPELR (50686) 1 at 23.
The concatenation of the foregoing is that this application is totally devoid of any merit whatsoever. The application fails and it is hereby dismissed. The Appellants/Respondents as well as the 1st Respondent are entitled to the costs of this application which I assess and fix at N100,000.00 in favour of the Appellants/Respondents on one hand and the 1st Respondent on the other.

PETER OLABISI IGE, J.C.A.: I have read in advance the leading ruling of my Learned Brother, OGAKWU, JCA. I agree with his reasoning and conclusion that the application is completely devoid of merit.

The application fails and it is also dismissed by me.

I abide by the consequential order as to costs as contained in the lead ruling of my Learned Brother, OGAKWU, JCA.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the ruling of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA, just delivered. I am entirely in agreement with the reasoning and conclusion reached therein.
I abide by the consequential orders.

Appearances:

John Awa Kalu, Esq. with him, Adekunle Kosoko, Esq. For Appellant(s)

Prof. Sam Erugo, SAN with him, V. C. Nwankwo, Esq. – for Appellants/Respondents.
Fabian Okonkwo, Esq. – for 1st Respondent.
For Respondent(s)