JOSEPH v. P.D.P & ORS (2020)

JOSEPH v. P.D.P & ORS

(2020)LCN/14007(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, March 18, 2020

CA/A/51/2020

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FEMI JOSEPH APPELANT(S)

And

1. PEOPLES DEMOCRATIC PARTY 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. ENGR. MUSA WADA RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPEAL TO THE COURT OF APPEAL IS AS OF RIGHT OR WITH LEAVE OF COURT

The law is settled that an appeal to the Court of Appeal may be as of right or with leave and an appeal as of right is where a party files a notice of appeal against the decision of the lower Court without first obtaining the permission of the lower Court or Court of Appeal.
Situations where an appeal is as of right have been provided for in Section 241 of the Constitution of the Federal Republic of Nigeria. In this case, we are concerned with Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria provides that:
“241(1) An Appeal shall lie from the decisions of the Federal High Court or in High Court to the Court of Appeal as of right in the following cases- (b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.” PER IDRIS, J.C.A.

FACTORS TO DETERMINE THE COURSE OF ACTION IN A SUIT

In determining when the cause of action of the Appellant arose, it is trite law that for a Court to determine what the cause of action is in a suit, it must look only at the statement of claim. In the case of YARE VS. NATIONAL SALARIES INCOME AND WAGES COMMISSION (2006) 2 NWLR (PT. 965) PAGE 546, it was held that:
“in determining when a cause of action is said to have accrued, the Courts are enjoined to consider the plaintiff’s statement of claim or the factual situation on which the plaintiff relies to support his claim.”
The Straud’s Judicial Dictionary 4th Edition defined cause of action as “the entire set of facts that gives rise to an enforceable claim.” In the case of OGBIMI VS. OLOLO (1993) 7 NWLR PART 304 PAGE 128 at 136, it was held that:
“A cause of action, is, in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaints and the consequent damage.”
In the case of AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR PART 127 PAGE 369 AT 382 – 383, “when facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligation exists side by side, a cause of action is said to have accrued.” PER IDRIS, J.C.A.

WHETHER OR NOT THE FEDERAL HIGH COURT IS AN ELECTION TRIBUNAL

It is important to also point out here, that the Federal High Court which is the trial Court before which the action was maintained is not an Election Tribunal which is governed by the Constitution and the Electoral Act solely. Pre-election matters are heard by regular Courts which have established rules of procedure that governs them.
In addition, by virtue of Section 87(9) of the Electoral Act, 2010, which gives the High Court and Federal High Court the jurisdiction to hear pre-election matters, it is the rules of the Court that will apply. See generally, ANYANWU VS. OGUNEWE (2014) 8 NWLR (PT. 1410); ALFA VS. ATTA & ORS (2018) 5 NWLR (PT. 1611) 59. PER IDRIS, J.C.A.

WHETHER OR NOT AN AMENDMENT CAN BE MADE WHERE PROCEEDINGS IS PENDING

An amendment can be made either as a matter of course or by consent of the parties or upon notice to the Court in which the proceeding is pending. See ADEKEYE VS. AKIN-OLUGBADE (1987) 3 NWLR (PT. 60) P. 214. The Supreme Court further reiterated In the case of AGBABIAKA VS. SAIBU & ORS (1998) LPELR – 222 (SC) that:
“The law is settled that once ordered, what stood before an amendment of whether a writ of summons or the pleadings is no longer material before the Court and no longer defines the issues to be tried.” per Iguh, JSC (Pp. 24 – 25, Para. G). PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Originating summons filed on the 27th of September, 2019 before the Federal High Court, sitting in Lokoja, the Appellant who was Plaintiff at the trial Court, sought for the determination of the following questions:
1. Whether having regard to the clear and unambiguous provisions of Section 31(5) and (6) of the Electoral Act 2010 (as amended), 3rd Defendant’s INEC FORM CF001 and the Primary School Certificate, bearing Number: 910922 attached therewith and submitted to the 2nd Defendant by the 1st and 3rd Defendants, contain false information regarding the 3rd Defendant’s Primary School certificate.
2. Whether having regard to the clear and unambiguous provisions of Section 31(5) and (6) of the Electoral Act 2010 (as amended) vis-a-vis 3rd Defendant’s INEC FORM CF001 and the Primary School Certificate, bearing Number: 910922 attached therewith and submitted to the 2nd Defendant by the 1st and 3rd Defendants, the 3rd Defendant is disqualified from contesting the Kogi State Governorship Election slated for the 16th day of November, 2019 for submitting to the 2nd Defendant false information regarding the 3rd Defendant’s primary school certificate.

RELIEFS SOUGHT
1. A DECLARATION that the 3rd Defendant’s INEC FORM CF001 and the Primary School Certificate bearing Number: 910922, attached therewith and submitted to the 2nd Defendant by the 1st and 3rd Defendants contain false information regarding the 3rd Defendant’s Primary School Certificate.
2. A DECLARATION that having regard to the clear and unambiguous provisions of Section 31(5) and (6) of the Electoral Act 2010 (as amended), vis-a-vis 3rd Defendant’s INEC FORM CF001 and the Primary School Certificate, bearing Number: 910922 attached therewith and submitted to the 2nd Defendant by the 1st and 3rd Defendants, the said 3rd Defendant is disqualified from contesting the Kogi State Governorship Election slated for the 16th day of November, 2019 for submitting to the 2nd Defendant false information regarding the 3rd Defendant’s primary school certificate.
3. AN ORDER disqualifying the 3rd Defendant from contesting the Kogi State Governorship Election slated for 16th day of November, 2019, for submitting to the 2nd Defendant in his

INEC FORM CF001 and the documents attached therewith, false information concerning his Primary School Certificate.
4. AN ORDER RESTRAINING the 2nd Defendant from accepting the 3rd Defendant as a Candidate to contest the Kogi State Governorship Election slated for 16th day of November, 2019.
5. AN ORDER RESTRAINING the 3rd Defendant from parading or holding himself out as Governorship Candidates in the Kogi State Governorship Election slated for 16th day of November, 2019.
6. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make within the contemplation of this suit.

It is the Appellant’s case that he is a legal practitioner and a native of Kabba/Bunu Local Government Area of Kogi State. He further deposed to the fact that the 3rd Respondent is the supposed Governorship candidate of the 1st Defendant in the Kogi State Governorship election slated for the 16th of November, 2019. He further stated that after the submission of the CF001 of all candidates of parties that desired to participate in the Kogi State Governorship Election, the 2nd Respondent issued a press release that it will publish on the 13th of

September, 2019 on her notice board at Lokoja Head office the copies of FORMS CF001 of all the supposed candidates that are to participate in the Kogi State Governorship Election.

After the publication of the FORMS CF001 on the 13th of September, 2019, the Appellant stated that he discovered that the 3rd Respondent actually completed the filling of the form by declaring same to be true and correct before a Commissioner for oaths on the 9th day of September, 2019 and subsequently submitted the form to the 2nd Defendant on the 9th day of September, 2019 and the 3rd Defendant had attached the particulars of his Educational qualifications from primary school to higher institutions.

The Appellant further stated that the 3rd Respondent refused to state in the FORM CF001 that he finished his primary school in the old Kwara State. He further deposed to the fact that the said primary school certificate submitted by the 3rd Respondent in his FORM CF001 is fake and forged when compared with other Kwara State Certificate of Primary Education. The Appellant attached a copy of a Kwara State Certificate of Primary Education of one Abdul Amodu who graduated in

1973, the same year as the 3rd Defendant and he thoroughly stated the particulars of the similarities and differences of both.

The Appellant also stated that he verily believed that the 3rd Defendant is patently not qualified to participate in the Kogi State Governorship Election slated for the 16th of November, 2019.

The 2nd Defendant filed a counter affidavit to the Originating summons on the 4th of November, 2019, stating that the 3rd Respondent is the candidate submitted to it by the 1st Respondent. Also, it was stated that there are no facts available to the 2nd Respondent to indicate that the certificates of the 3rd Defendant are fake or forged. It was further deposed that the 2nd Respondent is not allowed by law to reject names of the candidate submitted by political parties within time limit specified in the time table and schedule of activities for 2019 Governorship election in Kogi State

The 3rd Respondent filed a Notice of Preliminary Objection dated the 19th of November, 2019, challenging the competence of the originating summons on the grounds that the trial Court had no jurisdiction to hear and determine the suit as the

originating summons is incurably bad as it did not comply with the mandatory provisions of Section 97 and 98 of the Sheriff and Civil Process Act, S.6, Laws of the Federation of Nigeria, 2004, the originating summons was not issued properly and signed by the Registrar of the Federal High Court, the suit was statute barred by virtue of Section 285(9) of the Constitution of the Federal Republic of Nigeria as amended and finally, the originating summons did not disclose a reasonable cause of action.

The 3rd Respondent also filed his counter affidavit in opposition to the Originating summons on the 20th of November, 2019, stating that the 3rd Respondent was the Governorship candidate of the 1st Respondent in the Governorship election held on the 16th November, 2019 in Kogi State. It was deposed that the allegation contained in the affidavit in support of the originating summons is false and concocted to mislead the Court. The 3rd Respondent further stated that the certificates he attached to his FORM CF001 were all original and he was constitutionally qualified to run for the office of Governor of Kogi State both in terms of educational qualification and other qualifications stipulated by the Constitution of Nigeria.

The Appellant filed a Motion on notice dated the 2nd of December, 2019 seeking for an extension of time within which he may file a further affidavit in support of the Originating summons and written address in opposition to the 3rd Respondent’s preliminary objection.

The 3rd Respondent filed a counter affidavit to the motion on notice filed by the Appellant on the 2nd of December, 2019, stating that the documents and evidence sought to be introduced through the further affidavit in support of the originating summons is an indirect way of seeking to amend the originating summons and the facts in support outside the time allowed under the rules. It was further argued that the time for frontloading documents or filing affidavit has elapsed and there is no room for extension of time.

The trial judge delivered his ruling in respect of the Motion on notice dated the 2nd of December, 2019 filed by the Appellant seeking for extension of time to file further affidavit on the 15th of January, 2020, stating that if the extension of time to file the further affidavit is granted, it will

introduce new evidence which will be unfair and overreaching the Respondents. The trial Judge further held that by Order 22 Rule 4 of the Federal High Court Rules, the process opened to the Appellant to file at that stage is Reply on points of law. The motion on notice was declined. Confused and determined to prove his case, the Appellant filed a Notice of appeal on the 22nd of January, 2020, raising six grounds of appeal.

The Appellant’s Brief of argument was filed on the 10th of February, 2020, settled by Mike Enahoro Ebah, Esq. and five issues for determination were distilled:
1. Whether the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which governs the statutory time limit for commencement of pre-election actions also apply to time within which pleadings open, close and whether same also determine if the Court could extend or adjourn the time for doing any act or taking any proceeding in an Originating summons procedure. (Ground one).
2. Whether by the provisions of Order 13 Rules 50 of the Federal High Court (Civil Procedure) Rules 2019, the Appellant was entitled to either

file a further affidavit or Reply on Points in response to the 3rd Respondent’s counter affidavit. (Ground two and six).
3. Whether the provisions of Paragraph 4(1) and (5) of the First Schedule to the Electoral Act 2010 (as amended) applicable in Election Petition Tribunals and the entire provisions of the First Schedule to the Electoral Act 2010 (as amended) being Rules of Procedure for Election Petitions are applicable in a pre-election matter commenced by virtue of Section 31 of the Electoral Act 2010 (as amended). (Ground three).
4. Whether the refusal of the Appellant’s motion for extension of time to use a further-affidavit to controvert the 3rd Respondent’s counter affidavit in opposition to the Originating summons does not amount to a denial or infringement of the Appellant’s right of fair hearing as provided in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). (Ground four).
5. Whether the Appellant’s motion for extension of time to file/rely on a further affidavit to controvert the 3rd Respondent’s counter affidavit in opposition to the originating summons was

an attempt by the Appellant to amend or introduce new evidence into the Appellant’s originating summons. (Ground five).

On issue one, the Appellant’s counsel has argued that the provisions of Section 31(5) and (6) of the Electoral Act confers jurisdiction on the Federal High Court to hear and determine the case and proceedings therein with respect to procedural jurisdiction are regulated by the Federal High Court Rules 2019.

The Appellant counsel also stated that it is the law by virtue of Section 285(9) of the 1999 Constitution 4th Alteration that all pre-election matters must commence within 14 days statutory time limit that the cause of action crystallized or arose. It was then submitted that there is nothing in the said provision that says that parties in a pre-election suit commenced by originating summons, shall within 14 days of commencing the action file all processes including a further affidavit in response to a counter affidavit or that the time for beginning and closing of pleadings shall be within the said 14 days and that failure to file within the 14 days period will rob the Court of jurisdiction and power to extend time as held in the case of PDP VS. AMIN & ANOR (2019) LPELR – 48096 (CA).

It was also submitted that pursuant to Order 48 Rule 4, Order 13 Rules 49 and 50 of the Federal High Court (Civil Procedure) Rules 2019, the motion for extension of time to file a further affidavit by the Appellant was proper before the Court as the rules give the Appellant the right to reply within 14 days from the service of the Counter affidavit on him.

It was also argued by Appellant’s counsel that the provisions of Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria as amended 4th Alteration does not apply to time within which pleadings open and close.

On issue two and five, the Appellant’s counsel has argued that to reiterate the point that it is the rules of the Federal High Court that will apply to pre-election matters, it was submitted that procedural jurisdiction practice and procedure with respect to time and stages of pleadings as well as the discretional powers of the lower Court to extend or adjourn the time for doing any act or taking any proceeding appointed by the Federal High Court Rules 2019.

It was submitted that the Appellant’s further affidavit filed to controvert the 3rd Respondent’s counter affidavit is not overreaching to the 3rd Respondent or an attempt to introduce new facts. Thus, the lower Court failed to materially appreciate the facts in the affidavit as set out in the Originating summons as the law only requires facts to be pleaded and not evidence.

The Appellant’s counsel further argued that all the lower Court needed to concern itself with at the stage of a Motion on notice for extension of time was whether the Appellant’s refusal to file within time was deliberate, willful and borne out of disrespect of the Court. Reference was made to the case of AUTO IMPORT EXPORT VS. ADEBAYO (2002) 18 NWLR (PT. 799) 554 AT 584 PARAS F – H.

On issue three, the Appellant’s counsel has argued that Paragraphs 4(1) and (5) of the First Schedule to the Electoral Act 2010 (as amended) applicable in Election Petition Tribunals and the entire provisions of the First Schedule to the Electoral Act 2010 (as amended) being Rules of procedure for Election petitions are not applicable in a pre-election matter commenced by virtue of

Section 31 of the Electoral Act 2010 as amended. Thus, the trial Judge erred in law and misdirected himself in law when he based his ruling on Paragraphs 4(1) and (5) of the First Schedule to the Electoral Act 2010 (as amended).

It was further argued by Appellant’s counsel that the failure to frontload all documents relied upon or to be relied upon in a pre-election matter, commenced by way of Originating summons at the Federal High Court is not a ground for the refusal of the motion for extension of time to file further affidavit.

On issue four, the Appellant’s counsel has argued that the Appellant’s case is instituted pursuant to Section 31(5) and (6) of the Electoral Act 2010 as amended which confers on the Federal High Court the jurisdiction to hear and determine it. It is the Federal High Court rules that stipulates the time for beginning and closing of pleadings.

It was further submitted that the further affidavit filed by the Appellant in the suit which the lower Court refused was filed in response to the depositions of the 3rd Respondents denying facts contained in the Appellant’s affidavit in support of the

Originating summons. Thus, the denial by the trial Court amounts to a denial of fair hearing as provided for by Section 36(1) of the 1999 Constitution. Reliance was placed MIRCHANDANI VS. PINHEIRO (2003) 3 NWLR (PT. 701) PAGE 562 PARA 9.

In totality, this Court was urged to allow the appeal and set aside the ruling of the trial Court.
The 1st Respondent filed its brief of argument on the 25th of February, 2020 and it was settled by Emmanuel Enoidem Esq. two issues for determination were distilled:
1. Whether the learned trial judge was right when it refused the Appellant’s application for extension of time to file a further affidavit in support of the originating summons after the 14 days limited by Section 285(9) of the Constitution as altered by the 4th alteration.
2. Whether the learned trial Judge has breached the Appellant’s right to fair hearing in the circumstances which led to the instant appeal.

On issue one, the 1st Respondent’s counsel submitted that the learned trial judge was right when he refused the Appellant’s application for extension of time to file further affidavit in support of the

Originating summons because the suit being a pre-election matter, was governed by the Constitution and the Electoral Act. The 1st Respondent has argued that the Appellant had attempted to file fresh evidence/document through a further affidavit which evidence/document was at the threshold of the Appellant’s case as contained in the originating summons.

It was argued by 1st Respondent that the cause of action arose on the 13/9/2019, the originating summons was filed on the 27/9/2019 and the further affidavit and documents were filed on the 3/12/2019 which is well over the 14days stipulated by law. It was further argued that the evidence sought to be introduced by the Appellant in the application is the crux of the Appellant’s case and the documents purportedly obtained by the institutions of government sought to establish the allegation of the Appellant against the 3rd Respondent. These documents ought to be placed before the 14 days time limit stipulated for the commencement of pre-election matters.

The 1st Respondent further argued that the use of the word “shall” in Section 285(9) of the 1999 Constitution makes it mandatory and compulsory. Thus, the attempt of the Appellant to file a further affidavit over two months after the filing of the suit is a clear violation of the provision of the Constitution as elections are sui generis. Reference was made to APC VS. PDP & ORS (2015) LPELR – 24587 SC.

The 1st Respondent also argued that the further affidavit was an indirect way of the Appellant trying to amend the originating summons and the entire substance of the case. Thus, it was submitted that an amendment will not be allowed in election related matters where such amendment is substantial and goes to the root and foundation of the case. The case of OKE & ANOR VS. MIMIKO & ORS (2014) 1 NWLR (PT. 1388) PAGE 225 @ 254 was cited in support.

On issue two, the 1st Respondent has argued that the Appellant that alleged that the refusal of the trial judge to allow him file the said further affidavit amounted to a denial of fair hearing, failed to prove it. Reliance was placed on MAIKYO VS. ITODO (2007) 7 NWLR (PT. 1034) PAGE 443. It is submitted that there is nothing in the entire proceedings to suggest or to support the wild allegation that the lower Court denied

the Appellant fair hearing. Reliance was placed on FRN VS. AKUBUEZE (2010) 17 NWLR (PT. 1223) PAGE 525 @ 530 PARAS F – G.

It was submitted that the trial Judge gave the Appellant the opportunity and sufficient time to address the Court on the application to file the further affidavit but he failed to file it within the time limit stipulated by the constitution. Thus, it was finally submitted that the Appellant’s complaint that his right to fair hearing was breached was misplaced and lacked merit.

The 2nd Respondent filed its brief of argument on the 14th of February, 2010 and it was settled by Abdulaziz Sani, Esq wherein a lone issue for determination was distilled:
Whether the Appellant is entitled to the grant of the reliefs sought in this interlocutory appeal.

The 2nd Respondent counsel has argued that pre-election matters are strictly regulated by the Constitution and the Electoral Act and that, the commencement of pre-election matters is provided for under Section 285(9) of the 1999 Constitution. This provision states that the action must be filed within 14 days that the cause of action arose.

It is therefore the 2nd Respondent’s argument that originating summons filed in a pre-election matter cannot be amended under any guise. It was further argued that the Appellant cannot rely on the Federal High Court rules which cannot be compared to the supremacy of the constitution. Reliance was placed on EGBE VS. ADEFARASIN (1985) 1 NWLR (PT. 3) AT 549.

It was further argued that time cannot be extended for no reason whatsoever in election matters as held in the case of MARWA VS. NYAKO (2012) 6 NWLR (PT. 1296) PAGE 199 AT 293. It was submitted that since the constitution has limited the time within which the Appellant may file his case, failure to attach all subsequent documents now sought to be brought in through the further affidavit is fatal.

The 2nd Respondent’s counsel has submitted that the motion on notice seeking for extension of time was an indirect way of the Appellant seeking to amend the Originating Summons. He further argued that the Appellant placed reliance on the provisions of the Federal High Court Rules which are at complete variance with the provisions of Section 1(1) and (3) of the Constitution of the Federal Republic of Nigeria which talks

about the supremacy of the constitution and any act that is inconsistent with the provisions of the constitution shall be declared null and void to the extent of its inconsistency.

It was also submitted that the omission by the Appellant to attach the documents he sought to bring in by a further affidavit to the originating summons cannot be cured under the guise of further affidavit outside the time within which the Appellant is allowed by the Constitution to file his case.

The 3rd Respondent filed a Notice of Preliminary Objection, challenging the competence of the Appeal and same was argument in his brief of argument filed on the 2nd of March, 2020.

It was argued that this Court lacks the requisite jurisdiction to hear and determine Appeal No. CA/A/51/2020 on the following grounds:
1. That the appeal of the Appellant arose from an interlocutory decision/ruling of the Court below which refused to exercise its discretion to grant extension of time within which the Appellant can file further affidavit in support of his Originating summons on the firm ground that extension of time is not allowed in pre-election matters.

That the entire grounds of appeal of the Appellant though cleverly couched as grounds of law are indeed grounds of mixed law and or facts in that the entire appeal complains against the exercise of the discretion of the Court below in an interlocutory decision and the Appellant requires leave of Court below or this Court pursuant to Section 242(1) of the 1999 constitution as amended to have a valid and a competent notice and grounds of appeal.
3. The Appellant filed this appeal without leave of the Court below or this Honourable Court been first had/sought and obtained.
4.This Honourable Court has no jurisdiction to hear and determine this appeal on the authority of AKEREDOLU V ABRAHAM (2019) LPELR-46670 (CA) AT 7 – 11 PARAS A – E.
5. This Honourable Court has no jurisdiction to hear and determine an incompetent appeal.

The 3rd Respondent’s counsel has argued that the appeal is incompetent and this Court lacks the jurisdiction to hear same.

Firstly, it was argued by 3rd Respondent’s counsel that the appeal, being an interlocutory appeal on grounds of mixed law and facts and leave of this Court must first be sought and

obtained for the Appellant to file a competent appeal. It is his contention that the grounds of appeal are premised on the refusal of the learned trial Judge to grant the prayers of the Appellant in the motion on notice seeking for extension of time to file a further affidavit in support of the Originating summons.

It was then argued that it is the position of the law that once grounds of appeal against an interlocutory decision are of facts, mixed law and fact, it can only be filed in the Court of Appeal with leave either the High Court or the Court of Appeal. The cases of NIC VS. ACEN INS. CO LTD (2007) 6 NWLR (PT. 1031) PAGE 589 AT 601 PARAS C – D and NWADIKE VS. IBEKWE (1987) 4 NWLR (PT. 67) PAGE 718 were cited in support. It was further stated that the failure to obtain the said leave rendered the notice and grounds of appeal of the Appellant incompetent and has irredeemably affected the jurisdiction of the Court. Reliance was placed on FASUYI VS. PDP AND ORS (2017) LPELR – 43462 (SC) YARO VS. AREWA CONSTRUCTION CO. LTD (2007) 17 NWLR (PT. 1063) PAGE 333 AT 358 – 359.

It was further argued that the failure of the Appellant to obtain leave to appeal is fundamental and it renders the appeal incompetent. Reliance was placed on ABALAKA VS. PRESIDENT FRN (2012) 5 NWLR (PT. 1292) PAGE 102 AT 119 PARAS D–G. The 3rd Respondent’s counsel has argued that the trial Judge judicially and judiciously exercised his discretion in favour of the Respondents and refused the application of the Appellant and a ground of appeal premised and based on this is mixed law and fact. Reference was made to CHINDA VS. INEC (2019) LPELR – 47902 CA 9 – 11 PARAS A – F. Thus, making the instant appeal an abuse of Court process. The 3rd Respondent counsel further submitted that the Appellant by filing this appeal has misuse of knowledge of law and legal procedure to stultify the process of administration of justice and to frustrate the case pending before the lower Court to continue to harass the 3rd Respondent and irritate the administration of justice. The case of SALIHU VS. GANA & ORS (2014) LPELR – 23069 PAGE 34 – 36 was cited in support.

It was also argued that this Court has no jurisdiction to hear and determine this interlocutory appeal arising from pre-election matters on the authority of AKEREDOLU VS. ABRAHAM (SUPRA) where it was held that where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the Court is raised by a party, the tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment to avoid unnecessary waste of time.

The 3rd Respondent has distilled a sole issue for determination in its brief of argument settled by J. S. Okutekpa SAN. It is:
Whether having regard to the statutory provisions and settled judicial authorities vis-a-vis the facts and circumstances of this case, the Court below properly exercised its discretion when it dismissed the application of the Appellant. (Distilled from Grounds 1, 2, 3, 4, 5 and 6 of the Notice of Appeal).

It was argued that having regards to the provisions of Section 285(9) of the 1999 Constitution and the relevant statutory provisions and judicial authorities vis-a-vis the sui generis nature of election petition cases and pre-election matters and the facts and circumstances of the instant case, the learned trial Judge was right when he dismissed the application of the Appellant as it was not grantable in law.

It was submitted that the learned trial Judge was right when he held that the Appellant in the suit commenced by Originating Summons ought to file all processes including a further affidavit in response to the 3rd Respondent’s counter affidavit within 14 days of the commencement of the pre-election matter as stipulated under Section 285(9) of the Constitution of the Federal Republic of Nigeria.

The 3rd Respondent’s counsel has argued that the question to be asked is whether the Appellant has the right to file a further affidavit in an action began by Originating summons in a pre-election matter which was answered in the negative. It was further argued that the trial Court was right when it held that the Appellant’s application for the extension of time to file the further affidavit was an attempt by the Appellant to introduce substantially new facts which were not included in the originating summons.

It was stated that the Appellant relied on Order 13 Rules 32(1) and (2) of the Federal High Court Civil Procedure Rules 2019 and this is misconceived and misapplied. It was stated that

under the originating summons procedure after the Claimant files the Reply on point of law or any other relevant processes, the Defendant has no right and or opportunity of responding further as litigation must end. It was also stated that if the motion had been granted by the trial Court, it would be overreaching. Reliance was placed on OKE VS. MIMIKO (2014) 1 NWLR (PT. 1388) PAGE 225 AT 251 – 254 PARAS E – C. The 3rd Respondent has further argued that even though this case is an election case, it also applies to a pre-election matter.

It was also stated that the time stipulated by the Electoral Act, constitution and practice direction for election petition proceedings is sacrosanct and cannot be extended. Reference was made to NGIGE VS. INEC (2015) 1 NWLR (PT. 1440) PAGE 281 AT 318 – 319 PARAS H – A. It was stated that the time of filing the originating summons in a pre-election matter is governed by the provisions of Section 285(9) of the 1999 Constitution. It was also submitted that Paragraph 4(1) and (5) of the First Schedule to the Electoral Act 2010 as amended which set out the contents of what must accompany election

petition, one of which is witness statement on oath has the same effect and intendment of Order 3 Rule 9(2) of the Federal High Court Rules.

It was also argued by 3rd Respondent’s counsel that based on Order 22 Rule 4 of the Federal High Court Rules, the only process the Appellant can file at that point was a reply on points of law.

In conclusion, it was submitted by 3rd Respondent counsel that the Appeal in totality is incompetent and this Court was urged to uphold the judgment of the trial Court.

The Appellant filed a reply brief to the 1st and 2nd Respondent’s Briefs of Argument. The issues the Appellant replied to are:
1. Appellant’s Further Affidavit to Controvert 3rd Respondent’s Counter Affidavit – not an Amendment of Pleadings.
2. Further Affidavit not a mood of commencement of an action under the rules but to rebut facts in a counter Affidavit.

As it relates to the first issue the Respondent argued that the 1st Respondent’s brief of argument carried an erroneous argument that the Appellant’s further affidavit filed to controvert facts contained in 3rd Respondent’s Counter

Affidavit is an amendment of the Appellant’s originating summons. The Appellant stated that the 1st Respondent relied on the Supreme Court decision in OKE & ANOR VS. MIMIKO & ORS (2013) LPELR – 20645 (SC) to mislead the Court which does not represent the factual and legal position of Appellant’s application seeking extension of time to file further affidavit to controvert 3rd Respondent Counter Affidavit. In addition, the Appellant argued that the decision above which was a matter before the Governorship Election Tribunal in Akure, has nothing to do with this case which is one that emanated from a Federal High Court in a Pre Election case.

The Appellant also argued that in OKE & ANOR VS. MIMIKO & ORS (Supra) the Motion on Notice filed at the Tribunal which the ratio was relied upon by the 1st Respondent was filed after the close of pleadings which is tantamount to an amendment, considering the reliefs to call additional witnesses and statements on oath. The Appellant concluded that the case cited above was inapplicable to the Appellant’s case and appeal.

The Appellant further argued in reply to the 1st and 2nd Respondent’s brief of argument that Order 17 of the Federal High Court (Civil Procedure) Rules, 2019 provides for application for amendment where that is the case, while Order 13 Rules 50 of the Federal High Court (Civil Procedure) Rules, 2019, deals with filing Reply to defence by the Appellant before the close of pleadings. This the Appellant argued means, that by the Rules of the lower Court, application for amendment requires an affidavit in support while the Appellant’s Motion on Notice and further affidavit filed pursuant to Order 48 Rules 4 and Order 13 Rules 49 and 50 of Federal High Court (Civil Procedure) Rules, 2019 only sought extension of time to use the Appellant’s separately filed further affidavit to controvert depositions in the 3rd Respondent’s Counter Affidavit.

As it relates to the second issue, the 1st and 2nd Respondent argued that the Appellant was bound to file his further affidavit within the 14 days of commencing this action as contemplated by Section 285(9) of the Constitution fourth alteration 2017. The Appellant’s reply to the Respondent’s assertion is that by

Order 3 Rule 1 of the Federal High Court Civil Procedure Rules, the stipulated mode of commencement of proceedings includes: writ, originating summons, originating motion or petition and does not include a further affidavit. The Appellant further contended that the suit having been commenced by originating summons under Order 3 Rule 9 of the Federal High Court Rules stipulates what shall accompany an originating summons which include an affidavit and copies of exhibits to be relied upon.

The Appellant also alleged that it is settled law that where a party deposed to a fact in a counter affidavit which the other party ought to rebut in further affidavit but fails to do so, he is deemed to have admitted such facts in the counter affidavit. The Appellant concluded that a further affidavit is needful when there is a counter affidavit that has denied and contradicted the weighty and substantial facts in an affidavit evidence and further sets out new which are credible which will lead the Court to finding favour of the Appellant.

The Appellant also filed a reply to the 3rd Respondent’s brief of argument. In the reply brief, the Appellant replied to the Respondent’s notice of preliminary objection which contains 5 grounds upon which the 3rd Respondent argued that this Court lacks jurisdiction to hear and determine this appeal. The Appellant argued that the 3rd Respondent went on a wild tangent to argued a ground of abuse of Court process which is not contained on the Notice of Preliminary Objection and urged the Court to strike out the case. The Appellant contended that their appeal is predicated on a need to prevent a denial of fair hearing and forestall a miscarriage of justice. The Appellant also argued that he ought to be heard by way of a further affidavit in response to a blatant denial of supply of false information and supply of false document by the 3rd Respondent.

The Appellant further contended that their intention for filling the instant appeal is to forestall a situation where the substantive matter is decided at the trial Court without his further-affidavit; in that instance, the 180 days stipulated for the hearing of substantive suit would have expired before the appeal against the entire suit is heard and determined by this honourable Court and in the case of success for the

Appellant, there would be no going back to the trial Court for hearing of the suit with the aid of the Appellant’s Further-Affidavit.

The Appellant argued grounds A, B and C of the Preliminary Objection together given that the Respondent’s grounds A, B and C of the Preliminary Object challenges the exercise of discretionary powers of the trial Judge and all the grounds of appeal are mixed law and/or facts in respect of which leave ought to have been sought and obtained either from the Court below or this Court. The Appellant, to grounds mentioned above, argued that it is clear from their Notice of Appeal, that the grounds are all grounds of Law which do not require the leave of the lower Court or that of this Honourable Court.

As it relates to ground D, the Appellant argued that the case of AKEREDOLU VS. ABRAHAM (2019) LPELR-46670 (CA) is distinguishable from the instant suit thus:
(a) The issues raised in this appeal are not jurisdictional matters and cannot be conveniently or practicably be dealt with by way of an appeal against the final decision of the lower Court and thus distinguishes it from Paragraph 10(b) of Court of Appeal Practice Directions 2013.

(b) That the Application which gives rise to the appeal before the Court of Appeal in that matter is an application challenging the Jurisdiction of the trial Court which can be raised at anytime while the instant appeal is one denying the use of a document for hearing.
(c) In AKEREDOLU’S case supra, trial at the trial Federal High Court was still ongoing simultaneously with the Appeal, whereas in this case the Federal High Court had as of 30th January, 2020 adjourned proceeding pending the determination of the appeal before this honourable Court.
(d) The Appellant in the instant case is the Plaintiff at the lower Court who the decision of the lower Court is against, there is therefore no mischief of frustrating the hearing of the substantive suit on his part as he is the one who will suffer the prejudice if the substantive matter is not heard and determined within 180 days.
(e) Unlike the AKEREDOLU’S case supra, the Appellant’s application at the lower Court was neither on jurisdiction nor did it touch on jurisdiction, therefore taking it away from the operation of Section 285(8) of the 1999 Constitution (as amended)

which this honourable Court considered in AKEREDOLU’S case.
(f) That different from AKEREDOLU’S case, the Appellant herein demonstrated and further states that it will suffer irreparable damages if the matter at the lower Court is concluded without the determination of this appeal as the Appellant case at the Lower Court would have been determined without an opportunity to be heard via his further-affidavit necessitated by the 3rd Respondent’s Counter-Affidavit filed at the lower Court after time was extended for him.

On the whole the Appellant asked the 3rd Respondent Notice of Preliminary Objection be dismissed.
As to the issues raised by the 3rd Respondent, the Appellant relied on the following questions:
(a) Whether having regard to the statutory provisions and settled judicial authorities vis-a-vis the facts and circumstances of the case, the Court below properly exercised its discretion when it dismissed the application of the Appellant?
(b) Appellant’s further affidavit filed to controvert 3rd Respondent’s counter affidavit not an amendment of originating summons?

As to the first issue above, the Appellant argued that Order 3 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2019 stipulates the mode of commencement of proceedings at the Federal High Court to include writ, originating summons, originating motion or Petition, none of the provisions above include the use of a further affidavit upon commencement. The Appellant further contended that where the language of a statute is clear and unambiguous, the Court will give an ordinary literal interpretation to it, without more. The Appellant concluded that a further affidavit is needful when there is a Counter Affidavit that has denied and contradicted the weighty and substantial facts in an affidavit evidence and further sets out new facts which are credible and which if believed by the Court lead to a finding in favour of the Respondent.

Regarding the second issue, the Appellant argued that just as they did with the 1st and 2nd Respondent’s reply that OKE & ANOR VS. MIMIKO & ORS supra was a matter before the Governorship Election Tribunal in Akure, has nothing to do with this case which is one that emanated from a Federal High Court in a Pre-Election case. The Appellant

also argued that in OKE & ANOR VS. MIMIKO & ORS supra the Motion on Notice filed at the Tribunal which the ratio was relied upon by the 1st Respondent was filed after the close of pleadings which is tantamount to an amendment, considering the reliefs, considering the reliefs to call additional witnesses and statements on oath. The Appellant concluded that the case cited above was inapplicable to the Appellant’s case and appeal. The Appellant then urged the Court to discountenance the 3rd Respondent’s submission and the entire preliminary objection.

DECISION ON THE NOTICE OF PRELIMINARY OBJECTION FILED BY THE 3RD RESPONDENT
The 3rd Respondent’s first contention under this preliminary objection is that the appeal of the Appellant is incompetent and this Honorable Court lacks the requisite jurisdiction to hear and determine the Appeal.

The 3rd Respondent’s counsel contention above stems from the allegation that the interlocutory appeal was one that was on grounds of mixed law and facts since it deals squarely with the exercise of discretion of the lower Court to grant or refuse the application of the Appellant. As

such, the Respondent argued that leave of this Court must first be sought and obtained for the Appellant to file a competent appeal by virtue of Section 242(1) of the 1999 Constitution.

While the Appellant relying on OGBECHIE VS. ONOCHIE (1986) 2 NWLR (PT. 23) 484, argued that its grounds of Appeal are clearly grounds of Law which do not require leave of the lower Court or this honorable Court per Section 241(1)(b) of the 1999 Constitution. The law is settled that an appeal to the Court of Appeal may be as of right or with leave and an appeal as of right is where a party files a notice of appeal against the decision of the lower Court without first obtaining the permission of the lower Court or Court of Appeal.
Situations where an appeal is as of right have been provided for in Section 241 of the Constitution of the Federal Republic of Nigeria. In this case, we are concerned with Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria provides that:
“241(1) An Appeal shall lie from the decisions of the Federal High Court or in High Court to the Court of Appeal as of right in the following cases-

(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”

In order to ascertain whether the grounds of appeal filed by the Appellant require leave or are as of right, it is imperative to reproduce the said grounds of appeal which read thus:
1. Ground 1 ERROR OF LAW: The learned trial judge erred in law when he held that the Appellant/Plaintiff in the suit commenced by Originating summons ought to have filed all processes including a Further-Affidavit (where needed) in response to the counter-affidavit within 14 days of commencement of pre-election matter and failure to file within such time robs the Court of jurisdiction to extend time notwithstanding that the Court has no jurisdiction to extend time in a pre-election matter.
2. GROUND 2 ERROR OF LAW: The learned trial judge erred in law when he held that the Appellant/Plaintiff’s application for extension of time within which to file its further-affidavit in response to the 3rd Respondent/Defendant’s Counter-Affidavit was an attempt by the Appellant/Plaintiff to introduce substantially new facts which were not included in the Originating summons or available to the Appellant as of the time of filing the Originating Summons and thus overreaching.

GROUND 3 MISDIRECTION IN LAW: The learned trial Judge misdirected himself in law when he proceeded to apply the provisions of Paragraph 4(1) and (5) of the First Schedule to the Electoral Act, 2010 (as amended) to deny the Appellant/Plaintiff’s application for extension of time within which to file a further-affidavit in response to the 3rd Defendant’s /Respondent’s counter-affidavit on the basis that all copies of documents to be relied on in the proceeding ought to have been attached to the originating summons therefore none other could be filed by way of a further affidavit in respect of which the extension if time was sought.
4. GROUND 4 ERROR IN LAW: The learned trial Judge erred in law and thereby occasioned miscarriage of Justice when he declined that the grant of the Appellant/plaintiff’s application for extension of time within which to file further-affidavit in response to the 3rd Defendant/Respondent’s Counter Affidavit filed on the 20th of September, 2019 which thereby denied or infringed on the

Appellant’s right to fair hearing as provided in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and in the Federal High Court (Civil Procedure) Rules 2019.
5. Ground 5: ERROR OF LAW/MISDIRECTION IN LAW: The learned trial judge erred/misdirected himself in law when he held that the Appellant/Plaintiff’s motion for extension of time to file a further affidavit in opposition to the 3rd Respondent’s Counter-Affidavit was one seeking to amend the originating summons by introducing new evidence and thereby occasioned a miscarriage of justice.
6. GROUND 6: ERROR OF LAW: The learned trial Judge erred in law when he misinterpreted and misapplied Order 22 Rule 4 of the Federal High Court Rules (Civil Procedure) Rules 2019 and held that the only option open to the Appellant/Plaintiff who was in this case served with a counter-affidavit and written-address in opposition to his originating summons is a Reply-on-Points-of-Law.

From the foregoing and after a comprehensive reading of the grounds of Appeal and the provisions of Section 241(1)(b) of the 1999 Constitution, can it be said that the

Appellant’s grounds of Appeal are one of mixed law and facts which require the leave of this Court? The simple answer to this question is NO because from a clear reading of the grounds above, it is evident that the Appellant was complaining of the trial Judge’s application of the law to the facts of the case which the Apex Court in a plethora of cases has held to be a ground of law.
The Appellant in its reply brief relied on a plethora of cases including: EKUNOLA VS. CBN (2013) 15 NWLR (PT. 1377) 244; N.N.S.C. VS. ESTABLISHMENT SIMA OF VADUZ (1990) 7 NWLR 526; and HARRISON WELLI & ORS VS. OKECHUKWU & ORS (1985) ALL NLR but specifically relied on the locus classicus of OGBECHIE & ORS VS. ONOCHIE & ORS (1986) LPELR – 2278 (SC) where the Apex Court per Eso, JSC held that:
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in

which case it would be question of law, or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.” (emphasis supplied)
Another case that hits the nail on the head as it relates to distinguishing a ground of law from a ground of mixed law and fact is the case of CAS LTD VS. FIDELITY BANK (2018) 5 NWLR (PT. 1611) 169 wherein per Kekere-Ekun, JSC the Apex Court held that:
“It is recognized that it is often difficult to distinguish between a ground of law and ground, which is of mixed law and facts. Overtime, a general rule of thumb employed by Courts to determine the nature of a ground has evolved. Where the complaint is that the trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, it is a ground of law. Where the ground of appeal questions the evaluation of evidence before the application of law, it is a ground of mixed law and fact. There is generally no difficulty in determining whether a ground of appeal is question of fact.”

Again, I hold that considering the cases above and the provisions of the 1999 Constitution, I find that the Appellant’s grounds of appeal were in fact grounds of law which do not require the leave of Court.
The Appellant was complaining of the trial Judge’s misapplication of law to the facts of the case and not on the exercise of discretion of the trial judge. It is well to note that the crux of the appeal is based on whether Section 285(9) of the 1999 Constitution, 4th alteration which provides that all pleadings must be filed, exchanged and closed within the 14 days period of time and again not the exercise of discretion of the trial Judge.

Given my decision above, the Respondent’s second contention in its preliminary objection that this appeal is an abuse of Court process given that what the trial Judge did was hallmark of proper exercise of discretion is of no moment.

The Respondent cited a plethora of cases to strengthen the argument above. While the Appellant maintained that their appeal is predicated on a need to prevent a denial of fair hearing and forestall a miscarriage of justice. The Appellant

also argued that he ought to be heard by way of a further affidavit in response to a blatant denial of supply of false information and supply of false document by the 3rd Respondent which is not an abuse of Court process.

Indeed, the Apex Court in AFRICAN REINSURANCE CORPORATION VS. JDP CONSTRUCTION NIGERIA LTD (2003) LPELR – 215(SC) has explained what constitutes an abuse of Court process when per Tobi, JSC they held that:
“Abuse of process of Court is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process. An abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system.”

The above is however not the case of the Appellant in this case who in essence, is just appealing for his right to file his further-affidavit so as to avoid a case where the substantive matter is heard without his further affidavit. This is an instance of the Appellant, appealing for fair hearing which is fundamental to all Court procedure and proceedings, and

like jurisdiction, the absence of fair hearing vitiates the proceedings no matter how well conducted.

Finally, the Respondent relied on the case of AKEREDOLU VS.ABRAHAM (2019) LPELR – 46670 (CA) in arguing that this Court had no jurisdiction to hear interlocutory appeals arising from pre-election matters.
I must state here that the Respondent’s argument relating to this contention was very inelegant. All the Respondent did was dump three full pages of the wordings from the case above without going on to state solid reasons why this appeal should not be heard. Stating a case is not enough, the Respondent must draw from the strength of the case to ground their arguments. The Respondent in essence must show how the case they seek to rely on is similar to their case.
In AKEREDOLU supra my brother Jauro JCA, held that:
“a good starting point is from Paragraph10(b) of the Court of Appeal Practice Directions 2013, which provides thus: “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.” The spirit of Paragraph 10(b) is to prevent frustration of trial proceedings by appeals against interlocutory decisions. It therefore, vest the Court with power to determine if an interlocutory appeal can conveniently be taken along with an appeal against the final decision of the trial Court.”
From the decision above I will extract the provisions of Paragraph10(b) of the Court of Appeal Practice Directions 2013 which reads:
“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 Court may exercise discretion and determine it expeditiously.”
Looking at the instant case, it is clear that the grounds raised in the interlocutory appeal are such that cannot be conveniently determined by way of an appeal arising from the final judgment of the Court below.
I also agree with the argument of the Appellant’s Counsel raised in his reply brief to the 3rd Respondent’s brief of argument that the Appellant in the instant case is the Plaintiff at the lower Court who the decision of the lower Court is against. There is therefore, no mischief of frustrating the hearing of the substantive suit on his part as he is the one who will suffer the prejudice if the substantive matter is not heard and determined within 180 days.
Additionally, in determining this preliminary objection, I have already decided that the issues raised in the grounds of appeal are of pure law and as such, the Court should as it is stated in Paragraph 10(b) of the Court of Appeal Practice Directions 2013 determine it expeditiously.

In the second leg of the AKEREDOLU’S case supra where my brother Jauro, JCA held that:
“A consideration will now be made of some subsections of Section 285 of the Fourth Alteration. By way of prologue and preamble it must be stated that the spirit behind the fourth alteration is to fast-track and limit time for the disposal of pre-election cases. In essence, it is aimed at seeing that pre-election cases are disposed off before the conduct of the general elections. Hence the major innovation introduced by the Fourth Alteration is the introduction of time limit within which to institute pre-election matters and time limit within which to conclude such matters, appeals inclusive, See Section 285(9), (10), (11) and (12) of the Fourth Alteration. In order to achieve the noble objective of speedy disposal of pre-election matters, Section 285(8) provides thus: “Where a preliminary objection or any 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.”

Clearly, this part of the judgment written in plain English relates to interlocutory issues touching on jurisdiction. The instant case in fact is not an appeal based on jurisdiction which removes it from the ambit of Section 285(8) of the 1999 Constitution (as amended).
In sum, the question to be asked is if the interlocutory appeal is not heard how does the Appellant continue to prove his case? Indeed, the Appellant will suffer if the matter at the lower Court is concluded without the determination of this appeal as the Appellant’s case at the Lower Court would have been determined without an opportunity to be heard via his further-affidavit necessitated by the 3rd Respondent’s Counter-Affidavit filed at the lower Court after time was extended for him.
This Court as we all know is one of justice which must not be seen to be only fair to only one party to a proceeding. Resulting from all my reasons above, I hereby dismiss this preliminary objection.

THE MAIN JUDGMENT
After a thorough and careful study of the briefs of argument filed by the Appellant, 1st Respondent, 2nd Respondent, 3rd Respondent counsel and the replies thereto respectively, I

will proceed to resolve the issues raised. However, I have distilled two main issues for determination. They are:
1. Whether the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which governs the statutory time limit for commencement of pre-election actions also apply to time within which pleadings open and close;
2. and whether same also determines if the Court could extend or adjourn the time for doing any act or taking any proceeding in an Originating summons procedure.

Both issues would be argued together.
I have read the records of appeal, particularly the Originating Summons, the affidavit in support and I have looked at all the Exhibits attached thereto. The case of the Appellant before the trial Court was to prove that the 3rd Defendant had submitted false/forged primary school leaving certificate to the 2nd Defendant in his FORM CF001.

In determining when the cause of action of the Appellant arose, it is trite law that for a Court to determine what the cause of action is in a suit, it must look only at the statement of claim.

In the case of YARE VS. NATIONAL SALARIES INCOME AND WAGES COMMISSION (2006) 2 NWLR (PT. 965) PAGE 546, it was held that:
“in determining when a cause of action is said to have accrued, the Courts are enjoined to consider the plaintiff’s statement of claim or the factual situation on which the plaintiff relies to support his claim.”
The Straud’s Judicial Dictionary 4th Edition defined cause of action as “the entire set of facts that gives rise to an enforceable claim.” In the case of OGBIMI VS. OLOLO (1993) 7 NWLR PART 304 PAGE 128 at 136, it was held that:
“A cause of action, is, in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaints and the consequent damage.”
In the case of AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR PART 127 PAGE 369 AT 382 – 383, “when facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligation exists side by side, a cause of action is said to have accrued.”

Finally, in the recent Court of Appeal case of OBIKA VS. OBIKA (2018) LPELR – 43965, it was defined as:
“a cause of action generally refers to every fact which is necessary for the plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle or aggregate of facts which the law recognizes as giving the plaintiff a substantive and recognized right to make the claim against the relief or remedy being sought. Thus, the verifiable factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right, capable of being claimed or enforced against the defendant. In other words, the eventual factual situation relied upon by the plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the defendant that gives to the plaintiff his cause of complaints is a cause of action.”

Enough said, the question that must be answered is; when did the cause of action arise in this instant suit?
This is a pre-election matter and thus, strict adherence must be made to the

provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No.21) Act 2018. Its provision is crystal clear and unambiguous and it states thus:
“Notwithstanding anything to the contrary in this constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
The issue as to when the cause of action arose is not in issue in this case. The Appellant has stated that he discovered that the 3rd Respondent submitted false and forged primary school certificate on the 13th of September, 2019 and the suit was filed on the 27th of September, 2019. Thus, the suit was filed within the 14 day period provided for under Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria 4th Alteration.

Now, this brings me to the question: What does Section 285(9) of the 1999 Constitution mean when it provided that “every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit”? Does it

mean that the entire filing of the originating processes, the pleadings of the Defendants to the originating processes, the reply of the claimant must all be done within the 14 day period? Does the Civil Procedure Rules of the trial Court apply when determining time limit for filing of the processes in a pre-election matter?

Firstly, in addressing whether all the processes in the pre-election matter should be filed within the stipulated period i.e. the 14-day period as provided for under Section 285(9),of the 1999 Constitution, 4th Alteration, a clear reading of the said Section 285(9) reveals inter alia:
“…..every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
Again, I would state that the above simply connotes the filing of the Originating process in a pre-election matter which in this case is the originating Summons which would resurrect the Jurisdiction of the Court to hear any Pre-election matter.
Going further and in an effort to interpret the intent of the said Subsection 9, it would be important to reproduce Subsection 10 as follows:

“A Court in every Pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit”
The above quoted from Subsection 10 also clearly connotes an umbrella to accommodate the filing of all other processes after the originating processes has been filed.

Order 13 Rule 49 of the Federal High Court (Civil Procedure) Rules, 2019 states as follows:
“A Defendant to an originating summons shall file a counter-affidavit with all exhibits he intends to rely upon and an address within 30 days after the service of the Originating Summons.”
On the other hand, Order 13 Rule 50 provides that:
“Where the Plaintiff desires to make a reply, he shall file it within 14 days from the service of the defence.”
From the Records of Appeal, it is clear that the 3rd Respondent filed his Counter affidavit and written address to the Appellant’s Originating summons on the 20th November, 2019 which was filed out of the seven days abridged by the Court to do same and out of the 30 days provided for, by the rules of Court. The 3rd Respondent filed same 54 days outside the days stipulated to file same and sought by a motion dated 19th November, 2019 and filed on 20th November, 2019 to file same out of time and the said application was granted.
On the 3rd December, 2019, the Appellant sought to regularize its further affidavit to the Counter affidavit of the 3rd Respondent exactly 13 days after the filing of the said 3rd Respondent’s counter affidavit.

In my considered opinion, there was even no need for the filing of the said motion to regularize the further affidavit filed by the Appellant as same was filed within the 14 days provided for by the rules after the filing of the 3rd Respondent’s Counter affidavit to the originating summons.

It is also important to look at the purpose of a further affidavit. This Court has reiterated in the case of IWUOHA VS. NIPOST LTD (2003) 8 NWLR (PT. 822) 308; USMAN VS.GARKE (2003) 14 NWLR (PT. 840) 261 P. 13, PARAS. B – D, per Abiru, JCA, that where there are facts deposed in the affidavit in support contrary to the facts contained in the counter affidavit, a reply or further affidavit is unnecessary. It is elementary law that a reply or further affidavit to contest or challenge facts deposed in a counter affidavit is only necessary where such facts have not been taken care of in the affidavit. (Emphasis Mine).

From the above and on examination of the further affidavit which the Appellant filed at the trial Court, it is clear that it was necessary for the Appellant to file a further affidavit in

support of his originating summons as the third Respondent’s Counter-affidavit necessitated the filing of the said further affidavit.

The further affidavit is in no way an amendment to the originating process but a form of reply to the counter affidavit filed by the 3rd Respondent of which they had 14 days by the Federal High Court (Civil procedure) Rules, 2019 to do upon the filing of the Counter affidavit to the originating summons by the 3rd Respondent.

I agree no less with the submission of the Appellant’s Counsel in paragraph 3.11 of his Brief of Argument and the authority cited therein that the further affidavit filed by the Appellant is indeed a reply to the Counter affidavit filed by the 3rd Respondent. The difference only being in the nomenclature.

It is also important to conclude on my findings on this point that the further affidavit filed by the Appellant is not in any way an amendment as an amendment is simply the correction of an error committed in any process, pleadings or proceedings at law or in equity. An amendment can be made either as a matter of course or by consent of the parties or upon notice to the Court in which the proceeding is pending. See ADEKEYE VS. AKIN-OLUGBADE (1987) 3 NWLR (PT. 60) P. 214.

The Supreme Court further reiterated In the case of AGBABIAKA VS. SAIBU & ORS (1998) LPELR – 222 (SC) that:
“The law is settled that once ordered, what stood before an amendment of whether a writ of summons or the pleadings is no longer material before the Court and no longer defines the issues to be tried.” per Iguh, JSC (Pp. 24 – 25, Para. G)

The fact that the said further affidavit to the Counter affidavit filed by the 3rd Respondent is an amendment to the Originating summons is thus ruled out.

In conclusion, the Honourable trial Judge erred in law when it held in page 307 of the Record of Appeal and cited Order 22 Rule 4 that the process open to the Plaintiff to file at this stage is a reply on points of law upon service of the address as the said Order only applies to the filling of final written addresses.

The issues are hereby resolved in favour of the Appellant. The said ruling of the trial Court is hereby set aside. The following orders are hereby made:
(a) An order is hereby made allowing the Appellant’s appeal.

(b) An order is hereby made setting aside the Ruling/Decision of His Lordship Honourable Justice D. U. Okorowo, of the Federal High Court of Nigeria, Lokoja Division, in Suit No. FHC/ABJ/CS/1147/2019, between FEMI JOSEPH vs. PEOPLES DEMOCRATIC PARTY (PDP) & 2 ORS; delivered on the 15th day of January, 2020, which denied the Appellant’s application for extension of time within which to file a Further Affidavit in response to the 3rd Respondent’s Counter-Affidavit in opposition to the Originating Summons.
(c) An order is made granting extension of time within which the Appellant/Plaintiff may file a Further-Affidavit in response to the 3rd Respondent’s Counter-Affidavit in opposition to the Originating Summons as well as an order deeming the Appellant/Plaintiff’s Further-Affidavit filed separately and served on the 3rd day of December, 2019, as properly filed and served.
(d) An order for the expeditious/accelerated hearing and determination of this matter is hereby made.
(e) No order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.

I am in agreement with his reasoning which I adopt as mine. I too allow the appeal and I abide by the consequential orders as made in the lead judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA and I am in complete agreement with the resolution of the issues for determination in the appeal.
I have nothing more to add. I also adopt the orders made in the lead judgment and allow the appeal.

Appearances:

E. Ezenko SAN with him, I. Ezenko, M. Enahoro Ebah and C. L. Egbuchimen For Appellant(s)
Enoidem with him, N. N. Asobinarin – for the 1st Respondent
A. Sani with him, F. Ajowunsi – for the 2nd Respondent
J. S. Okutepa SAN with him, E. Uko, O. S. Apeh, N. Onyema and H. J. Apeh – for the 3rd Respondent For Respondent(s)

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