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IBEZIM v. ARARUME & ORS (2022)

IBEZIM v. ARARUME & ORS

(2022)LCN/16816(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, February 16, 2022

CA/ABJ/CS/1047/2021(R)

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

CHUKWUMA FRANCIS IBEZIM APPELANT(S)

And

1. SENATOR IFEANYI GODWIN ARARUME 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION 3. ALL PROGRESSIVES CONGRESS RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON PRE-ELECTION MATTERS

But then, what is a pre-election matter? This has been defined in Section 285 (14) of the 1999 Constitution (as amended) as follows:
“14. For the purpose of this section, ‘pre-election matter’ means any suit by –
(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.” PER OGAKWU, J.C.A.

WHETHER OR NOT THE ISSUE OF DISQUALIFICATION, NOMINATION AND SPONSORSHIP OF CANDIDATES ARE PRE-ELECTION MATTERS

It is trite law that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede the election and are therefore pre-election matters. See SALIM vs. CPC (2013) LPELR (19928) 1 at 22 and AKPAMGBO-OKADIGBO vs. CHIDI (2015) LPELR (24564) 1 at 23. See also the following cases on the meaning of pre-election: APC vs. LERE (2020) 1 NWLR (PT 1705) 254, APC vs. UDUJI (2020) 2 NWLR (PT 1709) 541 and AGUMA vs. APC (2021) LPELR (55927) 1 at 43-44. Undoubtedly, the Originating Summons before the lower Court and which spawned this appeal was definitely a pre-election matter. Having ascertained that the appeal before the Court is a pre-election matter, what are the stipulations of the law on the hearing and determination of a pre-election appeal? It is in this regard that the stipulations of Section 285 (11) and (12) of the 1999 Constitution (as amended)come into play. 

Section 285 (11) reads:
“An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against”. 
PER OGAKWU, J.C.A.

THE JURISDICTION OF THE COURT TO ENTERTAIN A CAUSE OR MATTER

The jurisdiction of a Court to entertain a cause or matter is conferred by the law creating it. The superior Courts of record, including this Court are creations of the 1999 Constitution, as amended. Where the same Constitution makes specific provisions for the time within which certain causes or matters are to be heard and determined, the affected Courts have no discretion to exercise… The instant appeal not having been heard and determined within 60 days of the filing of the notice of appeal is caught by the limitation in Section 285 (12) of the 1999 Constitution, as altered. It is hereby struck out.”
See also KUSAMOTU vs. APC (supra) at 5-6 and 19-20 and TOYIN vs. PDP (2019) LPELR (47533) 1 at 8-10.
​Paucis verbis, this Court has no jurisdiction to determine an appeal in a pre-election matter after the limitation period of sixty (60) days stipulated in Section 285 (12) of the Constitution. The sixty (60) days within which to hear and determine this appeal has long expired. This Court is therefore now divested of jurisdiction to entertain the appeal. The appeal is no longer a live issue. It is spent and dead, both in substance and in form. The provisions of Section 285 (12) of the Constitution (as amended) having caught up with the appeal has rendered the appeal a nullity.
 PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): As a result of the death of the Senator representing the Imo North Senatorial District in the Senate of the National Assembly of the Federal Republic of Nigeria, the Independent National Electoral Commission, the 2nd Respondent in this appeal, in order to fill the resultant lacuna scheduled to conduct a bye-election on 5th December, 2020.

​In keeping with the democratic tenets, the political parties which were to participate in the said bye-election conducted primary elections to elect the candidates to contest the bye-election on their respective platforms. One such political party was the All Progressive Congress, the 3rd Respondent in this appeal. The outcome of its primary elections became litigious, with various aspirants including the Appellant and the 1st Respondent laying claim to having won the primary election and therefore the 3rd Respondent’s elected candidate for the bye-election. The flurry and spate of litigations and the various orders made by the Courts as to who the actual candidate for the 3rd Respondent was, were such that the 2nd Respondent could not authenticate either the Appellant, 1st Respondent, or any other aspirant as the candidate of the 3rd Respondent.

The bye-election was conducted by the 2nd Respondent as scheduled on 5th December, 2020. At the end of the bye-election, the 2nd Respondent declared that the 3rd Respondent as a political party had won the election. However, it was unable to declare any particular candidate as having been returned as elected on the platform of the 3rd Respondent. In consequence, it did not issue any certificate of return to any of the aspirants who laid claim to being the candidate of the 3rd Respondent at the said bye-election. This remained the state of affairs until the 9th day of December, 2020, when the 1st Respondent herein, as Plaintiff before the Federal High Court, Abuja Division instituted proceedings by Originating Summons in SUIT NO. FHC/ABJ/CS/1644/2020: SENATOR IFEANYI GODWIN ARARUME vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS. for the determination of the following questions:-
“1. Whether having regard to the subsisting judgment of the Federal High Court, Owerri Judicial Division in Suit No. FHC/OW/CS/101/2020, Between: LADY UCHENNA ONYEIWU UBAH V. ALL PROGRESSIVE CONGRESS (APC) & 4 ORS, the subsisting judgment of the Federal High Court, Abuja Judicial Division in Suit No. FHC/ABJ/CS/1229/2020, Between: ASOMUGHA TONY ELEBEKE V. CHUKWUMA FRANCIS IBEZIM & 2 ORS., Defendant’s Final List of Candidates for Imo North Senatorial District Bye-Election, 2020 wherein the Plaintiff’s name was duly published and displayed, the Notice of Appeal and the Motion on Notice for Stay of Execution filed on the 4th day of December, 2020, and the Defendant having declared the Plaintiff’s political party (All Progressives Congress) as winner of the Imo North Senatorial District Bye-Election held on the 5th day of December, 2020, the Defendant can lawfully refuse to declare the Plaintiff as the winner of the said Election, and accordingly, issue him a Certificate of Return.
2. Whether having regard to the subsisting judgment of the Federal High Court, Owerri Judicial Division in Suit No. FHC/OW/CS/101/2020, Between: LADY UCHENNA ONYEIWU UBAH V. ALL PROGRESSIVE CONGRESS (APC) & 4 ORS., the subsisting judgment of the Federal High Court Abuja Judicial Division in Suit No. FHC/ABJ/CS/1229/2020, Between: ASOMUGHA TONY ELEBEKE V. CHUKWUMA FRANCIS IBEZIM & 2 ORS., Defendant’s Final List of Candidates for Imo North Senatorial District Bye-Election, 2020, wherein the Plaintiff’s name was duly published and displayed, the Notice of Appeal and the Motion on Notice for Stay of Execution filed on the 4th day of December, 2020, and the Defendant having declared the Plaintiff’s political party (All Progressives Congress) as winner of the Imo North Senatorial District Bye-Election held on the 5th day of December, 2020, the Defendant is not duty bound to declare the Plaintiff as the winner of the said Election, and accordingly, issue him FORM EC8E and a Certificate of Return”.

Upon the determination of the said questions, the 1st Respondent claimed the following reliefs:
“1. A DECLARATION that in view of the subsisting judgment of the Federal High Court, Owerri Judicial Division in Suit No. FHC/OW/CS/101/2020, Between: LADY UCHENNA ONYEIWU UBAH V. ALL PROGRESSIVE CONGRESS (APC) & 4 ORS., the subsisting judgment of the Federal High Court, Abuja Judicial Division in Suit No. FHC/ABJ/CS/1229/2020, Between: ASOMUGHA TONY ELEBEKE V. CHUKWUMA FRANCIS IBEZIM & 2 ORS, Defendant’s Final List of Candidates for Imo North Senatorial District By-Election [sic], 2020 wherein the Plaintiff’s name was duly published and displayed, the Notice of Appeal and the Motion on Notice for Stay of Execution filed on the 4th day of December, 2020, and the Defendant having declared the Plaintiff’s political party (All Progressives Congress) as winner of the Imo North Senatorial District Bye-Election held on the 5th day of December, 2020, the Defendant’s refusal to declare the Plaintiff as the winner of the said Election, and accordingly, issue him a Certificate of Return is unlawful, illegal and an abuse of Court process.
2. A DECLARATION that in view of the subsisting judgment of the Federal High Court, Owerri Judicial Division in Suit No. FHC/OW/CS/101/2020, Between: LADY UCHENNA ONYEIWU UBAH V. ALL PROGRESSIVE CONGRESS (APC) & 4 ORS, the subsisting judgment of the Federal High Court, Abuja Judicial Division in Suit No. FHC/ABJ/CS/1229/2020, Between: ASOMUGHA TONY ELEBEKE V. CHUKWUMA FRANCIS IBEZIM & 2 ORS., Defendant’s Final List of Candidates for Imo North Senatorial District Bye-Election, 2020 wherein the Plaintiff’s name was duly published and displayed, the Notice of Appeal and the Motion on Notice for Stay of Execution filed on the 4th day of December, 2020, and the Defendant having declared the Plaintiff’s political party (All Progressives Congress) as winner of the Imo North Senatorial District Bye-Election held on the 5th day of December, 2020, the Defendant is duty bound to declare the Plaintiff as the winner of the said Election, and accordingly, issue him FORM EC8E and a Certificate of Return.
3. AN ORDER of this Honourable Court compelling the Defendant to declare the Plaintiff the winner of the Imo North Senatorial District Bye-Election held on the 5th day of December, 2020, return him elected and issue him FORM EC8E (Declaration of Result) and a Certificate of Return within Seventy (72) [sic] hours from the date of the judgment of this Honourable Court.
4. Cost of this action.”

​The action at the lower Court initially had the 2nd Respondent herein as the sole Defendant. However, the Appellant and the 3rd Respondent herein were subsequently joined as the 3rd and 2nd Defendants respectively, to the action. Before the lower Court, the 3rd Respondent herein (2nd Defendant at the lower Court) filed a preliminary objection challenging the competence of the action, wherein it contended, inter alia, that the action relates to the conduct of the bye-election and that it was therefore a post-election matter which the lower Court lacked the jurisdiction to entertain, as the only means of challenging the result of the bye-election was by an Election Petition filed before the National Assembly Election Tribunal. The lower Court heard the Preliminary Objection with the substantive Originating Summons and in its judgment, it dismissed the Preliminary Objection, holding that the Originating Summons embodying the claim of the 1st Respondent, as the Plaintiff before it, and the issues presented were not such “to warrant the Court not to hear the matter before it by upholding the preliminary objection”. It conclusively affirmed its jurisdiction to entertain the matter pursuant to Section 251 (1) (r) of the 1999 Constitution (as amended). Explicitly put, the lower Court did not agree with the contention in the preliminary objection that the complaint in the 1st Respondent’s Originating Summons was a post-election matter.

​The lower Court thereafter proceeded to resolve the merits of the Originating Summons holding, inter alia, that even though the Appellant was shown to have won the majority of lawful votes at the primary election of the 3rd Respondent, he was disqualified by the Court in the litigation that ensued thereafter and that there were no pronouncements made against the candidacy of the 1st Respondent, nor was he disqualified in anyway. The lower Court further found and held that even though the 1st Respondent came third at the primary election of the 3rd Respondent, the aspirant who came second behind the Appellant had been disqualified from participating in the primary election by the 3rd Respondent’s Screening Committee and Screening Appeal Committee. The lower Court then affirmatively held that the 1st Respondent was the candidate of the 3rd Respondent at the bye-election for the Imo North Senatorial District held on 5th December, 2020. It consequently entered judgment in favour of the 1st Respondent and ordered the 2nd Respondent to declare the 1st Respondent the winner of the election and to issue him with a certificate of return.

The Appellant, 3rd Defendant at the lower Court, was dissatisfied with the judgment of the lower Court which was delivered on 18th March, 2021. To give vent to his dissatisfaction, he appealed against the said judgment by Notice of Appeal filed on 30th March, 2021. Thereafter, the Appellant took no steps to diligently prosecute the appeal as he failed to transmit the Records of Appeal in the manner stipulated in the adjectival laws. This necessitated the 1st Respondent filing the application subject of this Ruling on 12th January, 2022, wherein he prayed for an order dismissing the appeal for want of jurisdiction.

The grounds upon which the application is predicated are as follows:-
“1. This Honourable Court lacks the jurisdiction to entertain the instant Appeal in view of the provision of Section 285(12) of the 1999 Constitution of Federal Republic of Nigeria (as amended).
2. By the provision of Section 285(12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), an Appeal from a pre-election dispute is to be heard and disposed of within 60 days from the date of filing of the Notice of Appeal.

3. The instant Appeal bothers [sic] on a pre-election dispute in respect of a bye election for Imo North Senatorial District conducted by the 2nd Respondent to fill the vacancy created by the demise of distinguished Senator Benjamin Uwajumogu.

4. The Federal High Court Abuja, Coram; Hon. Justice Taiwo O. Taiwo delivered a Judgment on the subject of this Appeal on the 18th day of March 2021.
5. Dissatisfied with the said Judgment, the Appellant/Respondent lodged an appeal to this Honourable Court vide a Notice of Appeal filed on 30th day of March, 2021.
6. The Appellant/Respondent neglected and failed to compile and transmit record to this Court within the prescribed time.
7. The Appellant/Respondent eventually compiled and transmitted record to this Court on the 8th day of December, 2021, about nine months from the date the Notice of Appeal was filed.
8. The time within which to determine this Appeal against the said judgment had long elapsed.
9. This Honourable Court has powers to strike out the Notice of Appeal; Record of Appeal and any other Process or processes filed by the Appellant/Respondent for want of jurisdiction and in consequence dismiss the appeal.
10. This application will meet the interest of justice”.

The application is supported by an affidavit of fifteen (15) paragraphs, with the documents relied upon exhibited thereto. The 2nd and 3rd Respondents did not file any processes in reaction to the application. Indeed, while learned counsel for the 2nd Respondent was absent at the hearing, the learned counsel for the 3rd Respondent, who was in Court, did not oppose the application. The Appellant however filed a sixteen (16) paragraph counter affidavit in opposition to the application on 18th January, 2022. In consonance with the provisions of Order 6 Rule 1 of the Court of Appeal Rules, 2021, written addresses were filed and exchanged between the 1st Respondent and the Appellant.

​At the hearing of the application on 10th February, 2022, the learned counsel for the 1st Respondent and the Appellant urged the Court to uphold their respective submissions in the determination of the application. The 1st Respondent further urged the Court to discountenance the processes filed by the Appellant for having been filed out of time. The Appellant however asserted that the processes were filed in a timely manner.

Let me brevi manu, deal with the contention as to the propriety of the processes filed by the Appellant. Order 6 Rule 1 (a) of the Court of Appeal Rules, 2021 provides as follows:
“Every application to the Court shall be by notice of motion, stating the Rule under which it is brought, the grounds for the reliefs sought and shall be supported by an affidavit and a Written Address: Provided that the Respondent(s) shall have five (5) days within which to file processes in response (if any) to the notice of motion and the Applicant shall have three (3) days to file a reply (if any) to the processes of the Respondent(s).”
By the above provision, the Appellant, as respondent to the 1st Respondent’s application had five (5) days after service to file his processes in response to the application. The 1st Respondent’s application was served on the Appellant on 12th January, 2022. The Appellant did not file his processes in response until 18th January, 2022; which is one day outside the five (5) days stipulated in Order 6 Rule 1 (a) of the Court of Appeal Rules, 2021. There was no order of Court granting the Appellant dispensation to file his processes beyond or after the time stipulated in Order 6 Rule 1 (a) of the Court of Appeal Rules, 2021. The Appellant’s processes which were filed out of time are therefore incompetent and must be struck out. See CHINDA vs. INEC (2019) LPELR (47902) 1 at 12, NNA vs. AJUZIEOGU (2018) LPELR (44179) 1 at 17-18, EBHONU vs. EBHONU (2017) LPELR (42416) 1 at 18-19, ENYIBROS FOOD PROCESSING COMPANY (NIGERIA) LTD vs. NDIC (2021) LPELR (55330) 1 at 4 and 9-10, ENEH vs. NDIC (2018) LPELR (44902) 1 at 26-27 and IHEAKAM FBN (2017) LPELR (43545) 1 at 6. The inevitable consequence of the Appellant’s processes having been filed out of time and the concomitant incompetence is that I must discountenance the same and resolve the application based on the 1st Respondent’s processes alone.

Howbeit, as an intermediate appellate Court, I would, notwithstanding the incompetence of the Appellant’s processes, consider the said processes in order to arrive at a holistic determination of the application on the merits, so that the apex Court would in the event of a further appeal to it, have the benefit of the views of this Court on the relative contention of the parties on the application.

In his written address, the 1st Respondent crafted a sole issue for determination, which issue was adopted by the Appellant. The said issue is:
“Whether from the facts and circumstances of this case, the 1st Respondent/Applicant is entitled to the Relief sought.”

SUBMISSIONS OF LEARNED COUNSEL
The 1st Respondent submits that by Section 285 (12) of the 1999 Constitution (as amended), a pre-election matter is to be decided within sixty (60) days of the filing of the appeal. It was stated that the Appellant has failed to diligently prosecute his appeal within sixty (60) days and that the sixty (60) day period cannot be extended since the Court does not engage in judicial legislation. It was maintained that sixty (60) days having elapsed since the appeal was filed, the appeal no longer had any utilitarian value. The cases of KUSAMOTU vs. APC (2019) LPELR-46802 (SC) at 5-6, ONYEDEBELU vs. NWANERI (2008) LPELR-4793 (CA) and NWOYE vs. IKECHUKWU (2011) LPELR-9195 (CA) were relied upon.

Contrariwise, the Appellant contends that the appeal is not a pre-election matter and does not fall within the category of pre-election appeals governed by Section 285 (12) of the 1999 Constitution (as amended). Referring to the question posed for determination in the Originating Summons and the reliefs claimed, it was asserted that the judgment of the lower Court revolved around the Appellant’s contention that the 2nd Respondent failed and or neglected to issue him with a Certificate of Return following the bye-election and for an order to compel it so to do.

It was opined that declaration of results and issuance or non-issuance of Certificate of Return do not fall under any of the categories listed in Sections 31 (5), (6) and 87 (9) of the Electoral Act, 2010 (as amended), which provide the instances which will give rise to pre-election disputes. It was stated that it is the time an action was filed that is relevant in determining if the action is a pre-election matter; that if filed before the election is held, it is a pre-election matter, but if filed after the election, it is no longer a pre-election matter vide BRAIMAOH vs. ALABA (2014) 15 NWLR (PT 1430) 321 at 362. It was stated that the 1st Respondent having filed his Originating Summons four (4) days after the bye-election, it was not a pre-election dispute and therefore the determination of the appeal is not regulated by the sixty (60) days provision of Section 285 (12) of the 1999 Constitution (as amended).

RESOLUTION
In the exordium, I gave a detailed background to the facts of this matter, which facts clearly show that going into the bye-election, it remained unsettled who won the primary election of the 3rd Respondent and who the candidate of the 3rd Respondent at the bye-election was. So the crux of the dispute was on the candidate of the 3rd Respondent at the bye-election. The lower Court clearly recognised this pivot of the action in its judgment at page 1439 of Exhibit A of the 1st Respondent’s motion where it stated thus:
“The question is, who was the candidate of the 2nd defendant at the election held on the 5th of December, 2020. I am bound by the records before me and it appears that the candidate of the 2nd defendant was the Plaintiff herein.”

The lower Court continued on this trajectory and held as follows at page 1440 of the said Exhibit A:
“From the averment in paragraph 6 (h) of the 1st defendant, the Courts is [sic] to settle the issue of the candidacy of the 2nd defendant.”

The lower Court then conclusively held thus at pages 1441-1442 of Exhibit A to the 1st Respondent’s motion:
“However, with regards to the decisions of the Court of Appeal, Abuja Division, the 3rd defendant remains disqualified. The candidate of the 2nd defendant is narrowed down to the plaintiff who, contested at the bye election. I am aware that the defendant attached exhibit 1, which is the Summary Result Sheet for 2020 Imo North Senatorial District Bye Election. In the document, the plaintiff herein came 3rd while one Mathew Omegara came 2nd and the 3rd defendant now disqualified came 1st. The learned counsel for the 2nd defendant has argued that in the event of the disqualification of the 3rd defendant in this suit, the person who came 2nd ought to be substituted. I agree with the learned counsel for the 2nd defendant. However, where is the person that came 2nd at the primaries of the 2nd defendant. The Court is bound by its records and the Court can make use of any document in its records. I can see from the judgment of this Court, Owerri Division that the said Mathew Omegara had been disqualified from participating from the Primary election by the Screening Committee and the Screening Appeal Committee of the Defendant. The question to be asked and which the 2nd defendant has failed and/or neglected [to] answer at least from its counter affidavit is why the name of the said Mathew Omegara has not featured being the runner up according to it at the Primary election of the 2nd defendant. The Court must decide this suit one way or the other and my conclusion is as at today, the Plaintiff remains the candidate of the 2nd defendant at the Imo North Senatorial District by [sic] Election held on the 5th of December, 2020.”

​It is effulgent from the above periscope, that the decision of the lower Court turned on who it found and held to have emerged as the victor at the primary election of the 3rd Respondent. Having held that it was the 1st Respondent, it then held that the 2nd Respondent should declare him winner and issue him a Certificate of Return. Let me hasten to state that it has to be remembered that the lower Court had dismissed the 2nd Respondent’s preliminary objection where it challenged the competence of the action on the ground that it was a post-election matter which was only cognisable by an Election Petition before the National Assembly Election Tribunal. The corollary is therefore correct; not being a post-election matter, the approach of the lower Court in trying to ascertain who emerged as the candidate of the 2nd Respondent from the primary election, goes to show that it was a pre-election matter. 

But then, what is a pre-election matter? This has been defined in Section 285 (14) of the 1999 Constitution (as amended) as follows:
“14. For the purpose of this section, ‘pre-election matter’ means any suit by –
(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”
By Section 285 (14) (b) reproduced above, a pre-election matter means, inter alia, any suit by an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election. 

In the questions for determination in the Originating Summons and the reliefs claimed, the 1st Respondent, as Plaintiff before the lower Court, challenged the action, decision or activity of the 2nd respondent for failing to issue him with a Certificate of Return, based on his contention that he was the candidate who emerged from the primary election of the 3rd Respondent and who participated in the bye-election. Even though the action was filed after the bye-election, the right being asserted by the 1st Respondent in the action was a right which accrued to him before the bye-election, consequent upon his assertion that he was the successful aspirant at the primary election of the 3rd Respondent. In the circumstances, it is as clear as crystal that the action was a pre-election matter since it sought to enforce the rights which allegedly accrued before the bye-election.
It is trite law that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede the election and are therefore pre-election matters. See SALIM vs. CPC (2013) LPELR (19928) 1 at 22 and AKPAMGBO-OKADIGBO vs. CHIDI (2015) LPELR (24564) 1 at 23. See also the following cases on the meaning of pre-election: APC vs. LERE (2020) 1 NWLR (PT 1705) 254, APC vs. UDUJI (2020) 2 NWLR (PT 1709) 541 and AGUMA vs. APC (2021) LPELR (55927) 1 at 43-44. Undoubtedly, the Originating Summons before the lower Court and which spawned this appeal was definitely a pre-election matter.

Having ascertained that the appeal before the Court is a pre-election matter, what are the stipulations of the law on the hearing and determination of a pre-election appeal? It is in this regard that the stipulations of Section 285 (11) and (12) of the 1999 Constitution (as amended)come into play. 

Section 285 (11) reads:
“An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against”.

The judgment of the lower Court appealed against was delivered on 18th March, 2021, and the Appellant filed his appeal within time on 30th March, 2021. So the Appellant filed a proper and valid appeal within the time stipulated by the Constitution. 

Section 285 (12) then goes on to stipulate that:
“An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal”.
​By the above provision, the Appellant’s appeal which was filed on 30th March, 2021 had to be heard and disposed of, latest by 29th May, 2021, being the 60th day from the date of filing the appeal on 30th March, 2021. As at the date of hearing this application on 10th February, 2022, the appeal had neither been heard nor disposed of. Indeed, it was only on 24th December, 2021, about seven months after the appeal ought to have been heard and disposed of, that the Appellant compiled and transmitted the Records of Appeal, outside the stipulated time. Again, it was only after the 1st Respondent’s motion, subject of this Ruling and which was filed on 12th January, 2022 had been argued on 10th February 2022, that the Appellant filed a motion on the same 10th February, 2022, seeking to regularise the Records of Appeal. At the time the 1st Respondent’s motion was argued, there was no such application for regularisation of the Records of Appeal in the Court’s file. Be that as it may, the pertinent question is whether in the light of the provisions of Section 285 (12) of the 1999 Constitution (as amended) the Court has jurisdiction to entertain this appeal after the expiration of the limitation period provided in the said Section 285 (12). In TOYIN vs. MUSA (2019) LPELR (49328) 1 at 36-40, Kekere-Ekun, JSC asseverated:
“Certain facts are not in dispute in this appeal. The first is that this appeal is in respect of a pre-election matter arising from primaries conducted in November 2014 preparatory to the General Election into the Ekiti State House of Assembly that took place in 2015. Secondly, the judgment appealed against was delivered on 29th December, 2017, while the notice of appeal was filed on 23rd March, 2018. The 7th of November 2018, the date when the appeal came up for hearing, is more than 60 days from the date of filing the appeal. Section 285 (12) of the 1999 Constitution, as altered by the CFRN, 1999 (Fourth Alteration No. 21) Act 2017, provides as follows:
‘An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing the appeal.’
The provision is clear and unambiguous. By the rules of interpretation of statutes, where a provision is clear and unambiguous, it should be given its natural and ordinary meaning. See: Ibrahim vs. Barde (1996) 9 NWLR (Pt. 474) 513 AT 577 B-C, where it was held, inter alia, that the words of the statute, when precise and unambiguous, best declare the intention of the law maker. See also: Ahmed vs. Kasim (1958) SCNLR 28; Ojokolobo vs. Alamu (1987) 3 NWLR (Pt. 61) 377; Kuusu vs. Udom (1990) 1 NWLR (Pt. 127) 42. It is quite evident from the provision set out above that it is the intention of the legislature to bring an end to the current state of affairs where pre-election matters linger in the Courts’ dockets far beyond the election to which they relate and, in some cases, up to the end of the tenure of the office in issue…
In Amadi vs. INEC (2013) 4 NWLR (Pt. 1345) 595 AT 631 C-F, this Court in interpreting the provision of Section 285 (7) of the 1999 Constitution, which provides for a time frame within which appeals from an Election Tribunal or the Court of Appeal must be heard and disposed of, held:
‘Any appeal not heard and disposed of within the stipulated 60 days shall lapse and be struck out. The foregoing provision of the Constitution is a limitation law. The purport and essence of a limitation law is that where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. An action instituted after the expiration of the prescribed period is said to be statute-barred. The essence is that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had elapsed. The conspicuous effect of a limitation law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Secondly, the Court is divested of its jurisdiction in the matter as it is no longer a live issue it is dead in substance and in form’…
The jurisdiction of a Court to entertain a cause or matter is conferred by the law creating it. The superior Courts of record, including this Court are creations of the 1999 Constitution, as amended. Where the same Constitution makes specific provisions for the time within which certain causes or matters are to be heard and determined, the affected Courts have no discretion to exercise… The instant appeal not having been heard and determined within 60 days of the filing of the notice of appeal is caught by the limitation in Section 285 (12) of the 1999 Constitution, as altered. It is hereby struck out.”
See also KUSAMOTU vs. APC (supra) at 5-6 and 19-20 and TOYIN vs. PDP (2019) LPELR (47533) 1 at 8-10.
​Paucis verbis, this Court has no jurisdiction to determine an appeal in a pre-election matter after the limitation period of sixty (60) days stipulated in Section 285 (12) of the Constitution. The sixty (60) days within which to hear and determine this appeal has long expired. This Court is therefore now divested of jurisdiction to entertain the appeal. The appeal is no longer a live issue. It is spent and dead, both in substance and in form. The provisions of Section 285 (12) of the Constitution (as amended) having caught up with the appeal has rendered the appeal a nullity. The 1st Respondent’s application therefore succeeds and this appeal number CA/ABJ/CV/1047/2021: CHUKWUMA FRANCIS IBEZIM vs. SENATOR IFEANYI GODWIN ARARUME & 2 ORS., which has been rendered inutile by operation of law, is hereby struck out. The parties are to bear their respective costs of this appeal.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the Ruling just delivered by my learned brother, Ugochukwu Anthony Ogakwu, JCA.
I agree completely with the reasoning and the conclusion which I adopt as mine, that this appeal is incompetent and should be struck out.

This appeal from its content and context is a pre-election appeal.

By Section 285 (12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), it provides:
“An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing decision appealed against.”
By this provision, the moment the notice of appeal is filed in respect of a pre-election matter the specified time of 60 days begins to run. Once the 60 days runs out and the appeal is not disposed of, the appeal lapses by effluxion of time and there is no remedy other than to strike out the appeal. The time of 60 days is set by the Constitution and there is no provision therein for elongation of the time of Sixty (60) days. The instant appeal was filed 30/03/2021. Record transmitted is yet to be regularized. By this fact, the appeal had lapsed before the record of appeal was transmitted. In that wise, the appeal is dead on arrival. I also strike out this appeal and I abide by the consequential order made in the lead Ruling of my learned brother.

HAMMA AKAWU BARKA, J.C.A.: I had the privilege of reading the ruling of my learned brother UGOCHUKWU A. OGAKWU JCA in draft before now, which ruling is agreeable to me. Suffice to add that the issue herein principally turns on the proper interpretation of Section 285 (12) of the Constitution of the Federal Republic of Nigeria 1999 as amended. Indeed case law has eminently treated the issue under contention, which decisions have been ably and admirably exposed in the lead judgment. 

It is evident that the matter in contention is a pre-election matter strictly guided by the time regime stipulated under Section 285 of the Constitution as amended. The Apex Court speaking through Eko JSC, in Ezenwo vs. Festus (NO. 2) (2020) 16 NWLR (pt. 1750) 324 AT 370, spoke thus:
“Because elections are so important in the life of a nation and time is of the essence therefore; it was deemed necessary to regulate the periods for election litigations”.
The appeal lodged before the Court having exceeded the time allowed by the statutory provision, simply transmutes to and indeed ousted the jurisdiction of the Court from entertaining the matter. 

It is for this reason therefore and the much elaborate and expansive reasons adduced in the lead judgment, that I join my brother in upholding the objection and thereby striking out the appeal with No. CA/ABJ/CV/1047/2021. I abide on order made as to costs.

Appearances:

Adekunle Kosoko, Esq. For Appellant(s)

Zekeri Garuba, Esq., with him, O. D. Ogunniyi, Esq. – for 1st Respondent
S. O. Omotosho, Esq., with him, S. O. Yaqub, Esq. – for 3rd Respondent
2nd Respondent absent and not represented by Counsel For Respondent(s)