JULIUS EFENI AKPOVOKA v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13700(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of July, 2019
CA/B/391/2019
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
JULIUS EFENI AKPOVOKA Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. FRANCIS EJIROGHENE WAIVE
3. ALL PROGRESSIVE CONGRESS (APC) Respondent(s)
RATIO
WHETHER OR NOT TRIAL COURTS SHOULD PRONOUNCE ON AND DETERMINE ALL ISSUES SUBMITTED TO THEM FOR DETERMINATION
The best practice and current conventional wisdom which saves judicial time, prevents lengthy litigation and waste of the financial resources of litigants is that trial Courts and lower Courts should as a general rule pronounce on and determine all issues submitted to them for determination so that the appellate Court may have the benefit of their opinion on the matter. This obviates the need to send the case back to the lower Court for resolution with the attendant high cost of and unnecessary delay in resolving the crucial issues agitating the parties. See Brawal Shipping v. Onwudikoko supra; Bello v. Diocesan Synod of Lagos (1973) 3 SC 102; Oro v. Falade (1995) 5 NWLR Pt. 396 Pg. 385; Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 5 NWLR Pt. 656 Pg. 322; Ikechukwu v. FRN (2015) 7 NWLR Pt. 1457 Pg. 1; Owuru v. Adigwu (2018) 1 NWLR Pt.1599 Pg. 1. PER OGUNWUMIJU, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court delivered on 11/06/19 by Honourable Justice (DR.) Nnamdi O. Dimgba.
The suit which gave rise to this appeal was commenced by way of Originating Summons. By the Originating Summons, the Appellant as 1st Plaintiff and the 3rd Respondent who was the 2nd Plaintiff at the trial Court sought the following reliefs:
1. A DECLARATION that the 1st plaintiff (Julius Efeni Akpovoka) is the validly nominated candidates of APC for the position of member Federal House of Representatives for Ughelli South, Ughelli North and Udu Federal Constituency of Delta State in the 2019 general election.
2. A DECLARATION that the 2nd Defendant not being a registered member of the 2nd plaintiff All Progressive Congress (APC) cannot therefore be validly nominated and sponsored by the 2nd plaintiff for the position of member Federal House of Representative for South, Ughelli north and Udu Federal Constituency of Delta State.
?3. A DECLARATION that independent candidacy is not permissible under the 1999 Constitution (as
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amended).
4. A DECLARATION that the 2nd defendant cannot contest the 2019 general elections as an independent candidate.
5. A DECLARATION that the 2nd defendant Francis Ejiroghere Waive is not a registered member of All Progressive Congress (APC) and cannot be sponsored by the party.
6. An ORDER restraining the Defendants from posing and or acting as the nominated candidate for All Progressive congress having voluntary withdrew his candidature on the 24th October, 2019 and substituted.
?
The gravamen of the complaint of the 1st Plaintiff now Appellant as stated in the affidavit in support of the originating summons as well as the attached Exhibits was that the 3rd Respondent conducted a primary election to select a candidate to represent Ughelli/Udu Constituency in Delta State. The 2nd Respondent emerged the candidate of the 3rd Respondent but later withdrew his candidature and the Appellant substituted him. Thus, having done so, the 2nd Respondent could not be declared the winner of the primary election that was held. The 1st and 2nd Respondents who were the Defendants at trial filed their respective counter-affidavits and written addresses
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in opposition to the suit. The 2nd Respondent filed a Notice of Preliminary objection challenging the jurisdiction of the trial Court. The Learned trial judge dismissed the suit on the basis that the action constituted an abuse of Court process and also because it was statute barred.
Dissatisfied with the decision, the Appellant filed his Notice of Appeal on 19/6/19. Record was transmitted on 25/6/19. The reply brief to the 1st Respondent?s brief was filed on 12/7/19. The reply brief to the 2nd Respondent?s brief was filed on 15/7/19. The reply brief to the 3rd Respondent?s brief was filed on 15/7/19.
The 1st Respondent?s brief was filed 10/7/19. The 2nd Respondent?s brief was filed on 15/7/19. The 3rd Respondent?s brief was filed on 12/7/19. The 3rd Respondent also filed a Notice of Preliminary Objection on 12/7/19.
In the Appellant?s brief settled by Oba Maduabuchi (SAN), A.U. Idiris Esq., O.C. Ikpen Esq., P.E. Edeh (Miss) and O.E. Namuna Esq., three issues were identified for determination to wit:
1. Whether or not the lower Court was not wrong in holding that the suit of the
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Plaintiff/Appellant was statute barred
2. Whether or not the lower Court was right in holding that the suit of the Plaintiff/Appellant before the lower Court was an abuse of Court process
3. Whether the lower Court did not err in failing to make a pronouncement on the substantive suit on the merit.
In the 1st Respondent?s brief settled by Taminu M. Inuwa SAN, S.O. Ibrahim Esq., Joan M. Arabs (Mrs), R.A. Ugbane (Mrs), Wendy Kuku (Mrs.), Alhassan A. Umar Esq., Okechukwu Okeke Esq., Ahmed Goni Ismail Esq., Maryam Ibrahim (Mrs.) and Chidinma Nnamah (Miss), three issues were raised for determination to wit:
1. Whether or not the lower Court was not wrong in holding that that (sic) the suit of the Plaintiff/Appellant was statute barred
2. Whether or not the lower Court was right in holding that the suit of the Plaintiff/Appellant before the lower Court was an abuse of Court process
3. Whether or not the lower Court did not err in failing to make a pronouncement on the substantive suit on the merit.
?
In the 2nd Respondent?s brief settled by Prof. O.K. Edu and Joseph Olu. Oluwagbohunmi Esq., three issues were identified for
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determination to wit:
1. Whether the trial Court was right to have held that the suit filed by the Appellant constitutes abuse of Court process
2. Whether the trial Court is right to hold that the Appellant?s suit is statute -barred
3. Whether the failure of the trial Court to go into the merit of the Appellant?s incompetent suit occasioned a miscarriage of justice.
In the 3rd Respondent?s brief settled by Festus Keyamo SAN, FCIArb UK. and Matthew O. Omonade Esq., three issues were identified for determination to wit:
1. Whether or not the lower Court was not wrong in holding that the suit of the Plaintiff / Appellant was statute barred
2. Whether or not the lower Court was right in holding that the suit of the Plaintiff/Appellant before the lower Court was an abuse of Court process
3. Whether the lower Court did not err in failing to make a pronouncement on the substantive issue on the merit.
As I mentioned earlier, the 3rd Respondent filed a Notice of Preliminary Objection. I will deal with that first. The grounds as set out in the Notice of Preliminary Objection are as follows;
a. That at the
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lower Court (sic) the Appellant and the 3rd Respondent was stated as 1st and 2nd Plaintiffs respectively
b. That the 1st and 2nd Respondents were the only Defendants on record at the trial Court
c. That the Appellant unilaterally without the leave of Court (sic) ALTERED the parties in Suit No. FHC/ASB/CS/30/2019 leading to this appeal
d. That the status of the parties at the lower Court is at page 2 of the records
e. That the Appellant unilaterally altered the status of the 2nd Plaintiff at the lower Court to 3rd Respondent in his Notice of Appeal filed on the 19th day of June, 2019 without the leave of Court
f. That the Notice of Appeal at pages 598 to 603 of the records clearly shows the alteration of the status of the parties at the lower Court
g. That as against two Defendants at the lower Court, this Appeal now has three (3) Respondents
h. That an appeal is a continuation of the original suit and not a commencement of a new action
i. That the defective Notice of Appeal renders this whole appeal incompetent and this Court lacks the requisite jurisdiction to hear and determine this appeal
j. That the Appellant
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(sic) Notice of Appeal is defective
k. That by the Rules of this Court, this Court has the power to strike out a Notice of Appeal when an Appeal is incompetent or for any other sufficient reason.
Learned Senior Counsel for the 3rd Respondent argued that Appellant in his Notice of Appeal unilaterally altered the status of the 2nd Plaintiff at the trial Court to 3rd Respondent without the leave of Court. Counsel argued the appeal now has three Respondents as against two Defendants at the lower Court.
Learned Counsel submitted that once an action is filed in Court and the processes have been issued, only the Court can permit or issue leave for altering the parties.
Learned Counsel further submitted that because a matter had proceeded from the trial Court to the Court of appeal does not mean the nomenclature would be changed as an appeal is a continuation of the original suit and not the commencement of a new action. Counsel cited Veralam Holdings Ltd v. Galba Ltd & anor (2014) LPELR-22671 (CA), Pp. 16-18, Paras. E-B.
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Learned Counsel argued that where an alteration is unilaterally made without seeking and obtaining leave, the notice of
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appeal is incompetent and must be struck out. Counsel cited Princess v. Nigeria Customs Board & Ors (2018) LPELR-45551 (CA), P. 18, Paras. B-D. Counsel then submitted that the defective notice of appeal has rendered the appeal incompetent and the Court lacks jurisdiction to hear and determine the appeal.
In response, Learned Senior Counsel for the Appellant submitted that depending on who is appealing, parties who were claimants and defendants before the lower Court becomes appellants and respondents. Counsel further submitted that a co-claimant/plaintiff who isn?t desirous of making an appeal becomes a respondent. Counsel cited Maito & Ors v. Ogunbo Dede (2013) LPELR 20892 (CA).
Learned Counsel argued that parties? designation is entirely different from alteration which includes adding or subtracting parties who were or were not parties at trial. Counsel cited Oyedele & Ors v. Ajayi & Ors (2014) LPELR-23101 (CA).
Learned Counsel submitted that the cited cases of Veralam Holdings Ltd v. Galba Ltd & anor and Princess v. Nigeria Customs Board & Ors were quoted out of con and is inapplicable to the facts and
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circumstances of this appeal.
Learned Counsel argued that time is of essence in pre-election matters and they differ from civil matters and as such, the provisions of Section 233(3) of the Constitution does not apply to elections and election related matters. Counsel cited APC & Anor v. Senator Kabiru Garbar Marafa & 180 Ors ? SC 377/2019.
Learned Counsel submitted that notice of appeal is competent and the Court has jurisdiction to hear and determine the appeal. Counsel cited Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 594.
Learned Counsel argued that obtaining leave is not a condition precedent for initiating a pre-election appeal. Counsel citedOsaro Obazee & Anor v. Hon. Uyiosasere Ekhosuehi & anor ? SC. 448/2019.
Learned Counsel submitted that merely designating the 3rd Respondent as a Respondent in the notice of appeal isn?t a profound error to warrant striking out the appeal.
Learned Counsel further submitted that the notice or preliminary objection is an abuse of Court process as it is aimed at frustrating the hearing of the appeal. Counsel then urged the Court to dismiss the preliminary
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objection with punitive cost. Counsel cited N.I.M.B. V. UBN (2004) 12 NWLR (Pt. 888) 599.
OPINION ON PRELIMINARY OBJECTION
Let me first say that the provisions of S. 233(3) is peculiar to appeals from the Court of Appeal to the Supreme Court wherein leave must be first sought and obtained from this Court or the Supreme Court before an appeal against the judgment of this Court can be lodged at the Supreme Court except in circumstances stated in S. 233(2) of the 1999 Constitution (as Altered). The argument that leave be first sought and obtained to appeal against a decision in a pre-election is misconceived as that point had been decisively settled by the Supreme Court in APC v. Marafa (Supra) to the effect that leave is not a requirement in a pre-election appeal to the Supreme Court. The Supreme Court in APC v. Marafa (Supra) quoted Obih v. Mbakwe (1984) LPELR-2172 (SC) where Bello JSC (as he then was) of blessed memory held:
?In the same vein as in the former constitution, the 1979 Constitution made special provisions for the jurisdiction of the Courts to hear and determine election petitions at the first instance and on appeal.
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Section 236 of the Constitutionconferred on the High Court of a state unlimited jurisdiction to hear and determine any civil or criminal proceedings, subject to the provisions of the constitution. Section 237 the conferred jurisdiction on the competent High Court to deal with election petitions. The same distinction was manifested in the appellate jurisdiction of the Federal Court of Appeal and of this Court. While appeals as of right were covered by Section 220 (1)(a) to (d) and Section 213(2)(a) to (d) in the Federal Court of Appeal and in this Court respectively, Section 220(f) and Section 213(2) confers the right of appeal to the Federal Court of Appeal and to this Court in respect of election petitions. From the provisions of the constitution referred to above, I am of the opinion that election petitions were special proceedings completely divorced and separated from civil proceedings within the con of Section 267 of the Constitution
To the other point made on the disposition of the parties to this appeal, when an appeal is filed against the judgment of the Court of first instance, the party complaining against the decision of the trial
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Court is the Appellant(s), while all other parties on record no matter their status at trial are Respondents to the appeal. That is the norm. It stands to reason that on appeal, the designation of the parties on record may change since one of the Plaintiff(s) may decide that it is not worth it to appeal against the judgment while another Plaintiff may want to pursue his rights further on appeal. That cannot be tantamount to unilateral alteration of the parties to the appeal as argued by the Learned Senior Counsel for the 3rd Respondent. Going further on this point, I have always pressed the view that the Appellant should only file an appeal against the parties on record at trial against whom he has reliefs at the appellate Court. I have never seen the point of joining as a Respondent, a party against whom an Appellant has no relief. In any event, the kernel of the objection to the effect that the parties to this appeal were unilaterally altered by the Appellant has no basis in fact and law, it is completely misconceived and it is hereby dismissed. This point is resolved in favour of the Appellant.
?
Having considered the notice of preliminary objection, in
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determining the issues on appeal, I will recouch the formulated issues as follows:
1. Whether the suit was statute barred
2. Whether the suit was an abuse of Court process
3. Whether the learned trial judge erred in failing to pronounce on the substance of the suit.
ISSUE ONE
Whether the suit was statute barred
Learned Senior Counsel for the Appellant opined that the trial Court found that the Appellant?s case at trial was whether it doesn?t amount to fraud and unlawful substitution of the Appellant?s name for the 1st Respondent to maintain the 2nd Respondent?s name on the list of nominated candidates for the general election. Counsel argued that this finding of the learned trial judge had not been appealed against and so it cannot be said to have been challenged. Counsel cited SPDC Nig. Ltd v. Edamkue (2009) 14 NWLR (Pt. 1160) 1; Calabar Central Thrift & Credit Society Ltd v. Ekpo (2008) 6 NWLR (Pt. 1083) 363, (2008) 2 SCNJ 307, (2008) 1-2 SC 229.
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Counsel opined that the use of the word ?maintaining? by the learned trial judge represents a continuous state of affairs that cannot
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become statute barred until it ceases. Counsel cited Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56 at 116-117; Aremo II v. Adekanye (2004) All FWLR (Pt. 224) 2113; CBN v. Amao (2010) 16 NWLR (Pt. 1219) 271; Nweke v. Nnamdi Azikiwe University Akwa (2017).
Counsel further submitted that the trial Court held that the act complained of was fraudulent. Counsel argued that the limitation period shall not begin to run where there is fraud. Counsel cited Okoro v. Osim (2012) 39 WRN 151; Exec of the Estate of Gen S. Abacha v. Eke-Spiff (2009) 2-3 SC 97.
Counsel submitted that since the Court found that there was fraud and subsistence of the situation, whether the suit qualified as a pre-election matter or not, time does not run until the continuing state of affairs had ended.
Counsel further opined that as long as the suit was filed before the general election and the main issue was that the 2nd Respondent had withdrawn from the election; the action cannot be statute barred because a withdrawn candidate cannot stand for an election. Counsel cited Gwede v. INEC (Supra).
?In response, the Learned Senior Counsel to the 1st Respondent argued that in
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determining whether a case is filed within the time allowed by law, the originating process has to be looked at and then the date it was filed will be compared against the time prescribed by the statute for filing it. Counsel submitted that the provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides 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.
Learned Counsel opined that it is undoubted that the Appellant?s case was on the failure of the 1st Respondent to substitute the Appellant?s name despite the withdrawal of the 2nd respondent from the election. Counsel further opined that issues of nomination and substitution are pre-election matters within the meaning of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Counsel submitted that it was rightly held by the learned trial judge that the Appellant did not provide any evidence to support the fact that he learnt of the 1st Respondent?s refusal to effect substitution after the
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lists of candidates had been published by the National Assembly. Counsel further opined that the Court drew inference from the protest letter dated 19th January, 2019. Counsel further opined that the action was statute barred because the date exceeded the 14 days allowed for filing pre-election matters. Counsel cited Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99 P. 47, Para. A-C.
Counsel submitted that the use of the word ?shall? in the provision of Section 285(9) is mandatory and gives no room for extension of time. Counsel cited INEC v. Ogbadibo (2014) 3 NWLR (Pt. 1498) at 174; Amadi v. INEC (2013) 14 NWLR (Pt. 1345) at 197; Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 623; Obayemi Toyin v. Arogundade Samuel Musa & 3 Ors Appeal No. SC 30; Obayemi Toyin v. PDP & 3 Ors Appeal No. SC 308.
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Learned Counsel for the 2nd Respondent submitted that in order to determine whether an action was statute barred, the originating summon in this case has to be looked at so as to compare the date of commission of the wrong that gave rise to the Appellant?s cause of action and the date the originating summons was filed. Counsel further
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submitted that if the time pleaded in the originating summons is beyond the period allowed by the limitation law, the action will be statute barred. Counsel cited Ibeto Cement Co. Ltd v. A.G of the Federation (2008) NWLR (Pt 1069) 472 at 498 Paras. D-G.
Counsel argued that the Appellant?s originating summons which was filed on 15th February 2019 was outside fourteen days allowed by Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel cited Onadeko v. Union Bank of Nigeria (2005) All FWLR (Pt. 200) 57 at 72; FRN v. Gold (2007) 11 NWLR (Pt. 1044) 1 at 18 Paras. E
Counsel argued that contrary to the Appellant?s Counsel?s submission, the trial Court never found that there was any damage or continuing damage to the Appellant. Counsel further argued that the Appellant?s Counsel quoted an issue that was raised by the trial Court out of con and also, that the case of Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56 is inapplicable to the facts and circumstances of this case.
Counsel opined that there was no finding of the trial Court that the 2nd Respondent withdrew from the election.
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Counsel further opined that the 2nd Respondent was declared winner after the APC primary election and APC never substituted the 2nd Respondent but instead, the Appellant lost the primary election.
Learned Senior Counsel for the 3rd Respondent opined that the decision of the lower Court that the Appellant?s suit is statute barred is unassailable. Counsel opined that it is trite law that time begins to run from the moment the cause of action arose which can only be found from the originating processes and accompanying documents. Counsel cited Forestry Research Institute of Nigeria v. Gold (2007) LPELR-1287 (SC) at 16 Paras. A-E.
Counsel argued that the cases of Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Aremo II v. Adekanye; CBN v. Amao; Nweke v. Nnamdi Azikwe University Awka; Okoro v. Osim and Executor of the Estate of Sanni Abacha v. Eke- SPIFF relied upon by the Appellant?s Counsel were based on Limitation laws and the Public Officer Protection Act which made provisions for when a cause of action will not be statute barred. Counsel argued that the provision of Section 285(9) of the Constitution of Nigeria 1999 (as amended) is a specific
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provision on pre-election matters. Counsel further argued that Section 285(9) did not create any exception for when a pre-election matter can be filed outside 14 days. Counsel submitted Section 285(9) is very clear and should be given its plain and ordinary meaning. Counsel cited A.G of Bendel State v. A.G of the Federation & ors (1982) 3 NCLR1, (1981) 9 SC (Reprint) 1, at 78-79; Global Excellence Comm. Ltd v. Duke (2007) 16 NWLR (Pt. 1059) Pp. 47-48, Paras. H-C, Ratio 6. Counsel submitted that the use of the word ?shall? as was used in Section 285(9) gives no room for discretion. Counsel cited Nwankwo v. Yar?adua P. 589 Para B; Ifezue v. Mbadugha (1984) 1 SCNLR Pg. 427; Chukwuka v. Ezulike (1986) 5 NWLR, Pt. 45, Pg. 892.
In the Appellant?s reply brief to the 1st Respondent?s brief, Appellant?s Counsel submitted that the maintenance of the 2nd Respondent?s name by the 1st Respondent amounted to subverting the political party?s position and the infliction of continuing damage to the Appellant. Hence, the cause of action will not abate or become time barred until the injury stops. Counsel cited Gwede v.INEC ?
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(Supra); CBN v. Amao (2010) 16 NWLR (Pt. 1219) 271. Counsel further submitted that since the lower Court made findings that the suit of the Appellant complains about a continuous state of affairs and fraud, the 1st Respondent cannot as that the finding be set aside without a cross-appeal or respondent?s notice.
Counsel opined that the date 19/1/2019 on the letter was mistakenly placed on it as the letter was served on the 1st Respondent on 14th February, 2019. Counsel submitted that exhibit G1 came into existence after exhibit G, a letter dated 7th January 2019 and served on the 1st Respondent on 8thFebruary, 2019. Counsel opined that the trial Court ought to have relied on exhibit G and not exhibit G1.
Counsel argued that the law of limitation recognizes some exception such that where there is continuance of damage or injury, a fresh cause of action arises. Counsel cited Nweke v. Nnamdi Azikwe University Awka (2017) 18 NWLR (Pt. 1598) 454.
Counsel submitted that the Supreme Court?s decision in Toyin v. Musa and Toyin v. PDP relate to appeals and the time within which to appeal the decision of the Court of Appeal to the
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Supreme Court and they did not deal for actions initiated for the first time and cases of when a cause of action continues.
In the Appellant?s reply brief to the 2nd Respondent?s brief, Counsel argued that the argument that the action was statute barred is misconceived. Counsel opined that the 1st respondent decided not to act on exhibit E, the notice of substitution it received from the 3rd Respondent and the Appellant?s protest letters. Counsel further opined that the 1st Respondent never clarified who the right candidate was as there was no evidence that the 1st Respondent published the Appellant or the 2nd Respondent?s name after receiving the notice of substitution on 18/11/2018. Counsel argued that the cause of action arose on 23/02/19 or 24/02/2019 when the final result was released and the name of the 2nd Respondent who had ceased to be the sponsored candidate of the 3rd Respondent was placed on it.
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Counsel submitted that acceding to the argument of the 2nd Respondent would mean that anytime INEC substitutes the name of a person in an election result, no cause of action will arise because the election would have taken
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place already. Counsel cited Wike v. Icheonwo (1999) 4 NWLR (Pt. 600) 618. Counsel further submitted that the law makes a distinction between a de facto and a de jure candidate and the law will support the latter and not the former. Counsel cited Saulawa v. Kabir (2011) 2 NWLR (Pt. 1232) 417 at 442.
In the Appellant?s reply brief to the 3rd Respondent?s brief, Counsel argued that the argument of the 3rd Respondent in paragraph 5.4 of his brief of argument is misconceived. Counsel opined that the 1st respondent decided not to act on exhibit E, the notice of substitution it received from the 3rd Respondent and the Appellant?s protest letters. Counsel further opined that the 1st Respondent never clarified who the right candidate was as there was no evidence that the 1st Respondent published the Appellant or the 2nd Respondent?s name after receiving the notice of substitution on 18/11/2018. Counsel argued that the cause of action arose on 23/02/19 or 24/02/2019 when the final result was released and the name of the 2nd Respondent who had ceased to be the sponsored candidate of the 3rd Respondent was placed on it.
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Counsel submitted that acceding to the argument of the 2nd Respondent would mean that anytime INEC substitutes the name of a person in an election result, no cause of action will arise because the election would have taken place already. Counsel cited Wike v. Icheonwo (1999) 4 NWLR (Pt. 600) 618. Counsel further submitted that the law makes a distinction between a de facto and a de jure candidate and the law will support the latter and not the former. Counsel citedSaulawa v. Kabir (2011) 2 NWLR (Pt. 1232) 417 at 442.
OPINION
S. 285(9) of the 1999 Constitution as (Altered) states as follows:
?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.?
That provision has been given its ordinary grammatical meaning and interpretation by the Supreme Court. It is preposterous to talk of a continuing damage when the Constitution imposes a Specific Time Bar to litigation in an election related matter which is in general sui generis (that is of a peculiar and special nature or class
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which follows its own rules). Constitutional provisions, laws and rules of practice and procedure made for election related litigation are specifically and specially designed for that purpose. The Appellant complained that since the learned trial judge used the word ?maintaining the name of the 2nd Defendant on the list? on Pg. 589 of the record, it means that there was a finding of continuing grievance which the Respondent has not appealed against and which meant that S. 285(9) of the Constitution (as Altered) did not apply to the facts of this case. I am of the humble view that the identification of the complaints of the Plaintiffs on Pg. 589 of the Record by the learned trial judge has been deliberately misunderstood. The word maintaining and retain mean the same thing. The word cannot be given a meaning out of the con for which it was used by the learned trial judge who was merely repeating phrases found in the originating summons. The issue of a continuing damage which removes the application of the time bar imposed by the Constitution does not arise. The clever use of the phrases ?maintaining? and ?continuous
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damage? in paragraph 2 of the declarations sought in the originating summons is ingenious but cannot change the facts on ground. In any event, there must be a specific time when the cause of action arose to give the Plaintiff a complete grievance for which remedy must be sought in the Courts.
It is my humble view that each case must be decided on its peculiar facts while relying on the broad principles laid down by the Supreme Court in its pronouncements on the interpretation of S. 285(9) of the Constitution (As Altered).
?The Appellant was a candidate at the primary election organized by the 3rd Respondent on 5/10/18 for the position of member, Federal House of Representatives for Ughelli South, Ughelli North and Udu Federal Constituency of Delta State. Even though he claimed to have won the primaries, the name of the 2nd Respondent was forwarded by the Party-3rd Respondent to the 1st Respondent. Thereafter, according to the Appellant, the 2nd Respondent voluntarily withdrew his candidature at the general election to give way to the Appellant. However, according to the Appellant, despite all communications by the Appellant and the
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3rd Respondent (APC) that the 2nd Respondent was no more the candidate of the Party, the name of the 2nd Respondent was retained by INEC (1st Respondent) as the candidate for the party for the election. The crux of the matter now is when did the cause of action arise for the Appellant to have filed the action at the trial Court. The learned trial judge held as follows on Pg. 595 to Pg. 596 of the Record:
?From paragraph 17 of the Affidavit in support of the Originating Summons, the 1st Plaintiff learnt about the alleged substitution upon seeing the list of successful candidates of the 2nd Plaintiff (APC) and discovered that his name was omitted and replaced with that of the 2nd Defendant. Though the 1st Plaintiff did not provide this document which would have revealed the date he gained this knowledge of substitution, nor was the date provided in the face of the Affidavit in support of the Originating Summons, but from Exhibit G1 which is a protest letter written by the 1st Plaintiff to the 1st Defendant (INEC) challenging the alleged substitution, it can be seen that it was dated 19th day of January 2019 which obviously means the 1st Plaintiff
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became aware of the alleged substitution on an earlier date to the 19th of January 2019 when the letter was written. On the other hand, this suit was filed on the 15th Day of February 2019 which is obviously outside the 14 days provided for the institution of a pre-election suit such as this. I am therefore minded to say that the suit being a pre-election suit offends Section 285(9) and is therefore time-barred.?
Now, the Originating Summons which we are obliged to look at with its accompanying affidavit did not state precisely when the Appellant became aware that despite the purported withdrawal of the candidature of the 2nd Respondent, his name was still retained as the official candidate of the party by INEC. Let me just state here that the originating summons reveals several causes of action which includes the fact that the 2nd Respondent was not a valid candidate at the primaries because he did not give correct information on his form and was not the valid candidate for the election itself because he was not a validly nominated candidate.
?Paragraphs 18, 19, 20 and 21 of the originating summons on Pg. 158 of the Record is instructive:<br< p=””
</br<
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18. That instead of the defendants particularly the 1st defendant to ensure compliance that my name appeared on the list of candidates for the 2019 general elections it failed, refused or neglected to do so.
19. That I Protested to the defendants and the 1st defendant officers promised to ratify same by publishing my name however when I discovered that they will not amicably resolved (sic) the issue I institute (sic) this matter.
20. That on the 19th January, 2019 by a letter of same date wrote (sic) to the 1st defendant urging it to publish my name as all the necessary steps for substitution was effected and conveyed to the 1st defendant. The copy of the said letter is hereby annexed and marked as Exhibit ?F?.
21. On the 7th February, 2019 and 26th February, 2019 by a letter of same dates my solicitor upon my instruction wrote the 1st defendant demanding that I am the valid candidate of the 1st plaintiff and my name ought to be on the list of candidate (sic). The copies of the said letter are hereby annexed and marked as Exhibit ?G? and ?H? respectively.
?I found the arguments of learned senior counsel
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for the Appellant quite amazing. There were certain supposed ?findings? of the learned trial judge in a case that never went to full trial. The whole premise of the arguments of the Appellant on this point is paragraph 2.18-2.20 of the Appellant?s brief on Pg. 8 where the Appellant argued as follows:
2.18 We therefore submit that having found that the damage was continuing and that the cause is continuing and fraudulent, there can be no conclusion that the action is statute barred.
2.19 We submit that whether or not the suit qualified as a pre-election suit under Section 285(13) as found by the Trial Court, once the Court found that there was fraud and subsistence or continuance of the situation, time cannot run unless and until the continuing state of affairs come to an end.
2.20 So long as the suit was filed before the holding of the general election and the allegation is that the 2nd Respondent had withdrawn, the suit will not be statute barred as the 1st Respondent cannot allow a withdrawn candidate stand for an election.?
Thus, in this Court or at the lower Court, the Appellant never indicated for the benefit
29
of the Court the specific date he knew that it was the 2nd Respondent name that was retained on the candidates list by INEC. Appellant insisted on a continuing grievance.
By S. 34 of the Electoral Act 2010 (as amended), the names of ALL candidates at an election must be published by INEC within 30 days to the election. This includes those who have been substituted as the Electoral Act by S. 35 stipulates that any substitution must be forwarded to INEC within 45 days of the Election. The 2019 General Election was scheduled to have been held on 16/2/19, but was later held on 23/2/19 in respect of the Federal House of Representatives in dispute.
The circumstances of this case are peculiar. I have read my Lord Akaahs JSC in Osaro Obazee & Anor v. Hon. Ilyiosasere Ekhosuehi & anor- SC. 488/2019 delivered on 20/6/19. Therein my Lord pronounced that where the complaint is that of unlawful substitution and the Plaintiff had resorted to intervention of the party, time does not start to run until INEC had published the list of candidates for the Elections. That is when the Plaintiff can be sure that indeed his concerns had not been addresses by the
30
party and by INEC. In this case, the name of the 2nd Respondent had always been with INEC as a candidate, so the issue of something happening behind the back of the Appellant did not arise. This is not the common case of the complaint by a successful candidate at primaries that another person had been surreptitiously substituted for him behind his back. Besides, the Appellant had filed other cases at different Courts on the same subject matter. I have taken cognizance of the fact that he was protesting to the 1st Respondent hoping that his name would be substituted for the 2nd Respondent. In spite of that, I think the common law doctrine that the cause of action cannot accrue until the aggrieved is aware of the encroachment on his rights cannot avail the Appellant in the circumstances of this case. I am of the firm view with the greatest respect that the pronouncement of the Supreme Court is not at large and not a fit all prescription. It would depend on the circumstances of each case.
?The letter of protest to INEC by the Appellant which is Exhibit ?F? on Pg. 193 and ?G1? on Pg. 46 were both written on 19/1/19, less than 30 days
31
originally scheduled for the Election. I have to take judicial notice of the fact that INEC published the list of candidates for the Governorship, Federal and State Houses of Assembly on 30/1/19. Assuming that we agree with the Appellant that he became aware that the name of the 2nd Respondent was on the ballot on 30/1/19 when the names of all candidates was published by INEC for the whole world to see. If 14 days is calculated from 31/1/19, it would end on 13/2/19. The action was filed on 15/2/19 contrary to the provisions of S. 285(9) of the 1999 Constitution (as Altered).
The originating summons was filed on 15/2/19 less than a day to the scheduled date and a week before the actual date of the election clearly more than 14 days from the date the Appellant became well aware that his name was not on the list of candidates published by INEC to stand for election. I have to agree with the learned trial judge that indeed the action of the Appellant is time barred and that the objection to the hearing of the suit at trial was properly upheld by the trial Court. This issue is resolved against the Appellant.
ISSUE TWO
Whether the suit was an abuse of
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Court process.
Learned Senior Counsel for the Appellant argued that a suit cannot constitute an abuse of Court process until all cumulative elements are present. Counsel cited Christian Outreach Min. Inc. v. Cobham (2006) 15 NWLR (Pt. 1002) 283; NDIC v. Union Bank of Nigeria Plc (2015) LPELR-24316 (CA).
Counsel submitted that the learned trial judge held that the question raised by the Appellant in the suit at trial had to do with the substitution of the Appellant?s name with that of the 2nd Respondent?s which was different from the questions for determination in the suits that were filed earlier at trial. Counsel argued that the lower Court was wrong to have held that the suit amounted to an abuse of Court process after finding that the questions raised in the suits are different. Counsel argued that this appeal is based on withdrawal and not the outcome of the primary election. Counsel then submitted that this appeal does not constitute an abuse of Court process as withdrawal of a candidate was not raised elsewhere.
Learned Senior Counsel for the 1st Respondent opined that an abuse of Court process occurs when a litigant files
33
multiple actions which involves the same party on the same subject matter. Counsel submitted that the Appellant filed Suit No. FHC/WR/S/29/2019, Suit No. UHC/35/2019 and the instant case which borders on the issue of the refusal by INEC to publish the Appellant?s name as the substituted candidate.
Counsel submitted that apart from an appellate Court, any complaint made on the same issue before the same Court would amount to an abuse of Court process. Counsel submitted that contrary to established principles of law, this means that the same Court would decide on the same issue more than once. Counsel citedDingyadi v. INEC & 2 ors (2010) Vol. 42 (Part 2) NSCQR 666 at 738.
Counsel to the 2nd Respondent submitted that the Appellant?s suit constitutes an abuse of Court process. Counsel submitted that the Appellant had sued the parties in several cases seeking the same relief and raising the same issues. Counsel stated that the suits are UHC/35/2019 filed at the Ughelli Division of Delta State High Court; Suit No. FHC/WR/CS/93/2018 filed at the Warri Judicial Division of the Federal High Court and Suit No. FHC/ABJ/CS/1066/2019 (now Suit
34
No. FHC/WR/CS/29/2019 which was filed at the Abuja division of the Federal High Court but transferred to Warri Judicial division.
Counsel submitted that the cases of Christian Outreach Ministry Inc. v. Cobham (2006) 15 NWLR (Pt. 1002) 283 and NDIC v Union Bank of Nigeria Plc (2015) LPELR- 24316 and other cases cited by the Appellant are distinguishable from the instant case and are not applicable to this appeal.
Counsel submitted that the trial Court made a proper order of dismissal because once a Court finds any proceeding before it is an abuse of Court process, it has the duty to dismiss it. Counsel cited Onyeabuchi v. INEC (2002) 8 NWLR (Pt. 769) 417 at 428 Ratio 10.
Learned Senior Counsel for the 3rd Respondent submitted that the lower Court was right in holding that the Appellant?s case at the trial Court was an abuse of Court process. Counsel submitted that issues in multiple suits need not be totally identical for it to amount to an abuse of Court process as what is important is that all the suits must relate to the same subject matter. Counsel cited Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328 at 387-388, Paras. C-E.
?
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In the Appellant?s reply briefs to the 1st, 2nd and 3rd Respondents? briefs, Learned Senior Counsel opined that the suit did not amount to an abuse of Court process because the issues were not the same. Counsel argued that a subject matter such as the primary election of 5/10/2019 can give rise to different rights. Counsel cited NDIC v. Union Bank of Nigeria Plc (2015) LPELR-24316.
Counsel argued that the suit in FHC/WR/S/29/2019 was filed on 18/10/2018 when the 2nd Respondent had not yet withdrawn his candidature. Counsel argued that contrary to the 1st Respondent?s contention, the action in Suit No. FHC/WR/S/29/2019 emanated from the primary election as to who scored the majority of lawful votes in the said election. Counsel opined that it was filed on 18/10/2018 at a time when the cause of action in the suit that led to this appeal had not arisen. Counsel further opined that the case was abandoned when the 2nd Respondent withdrew his candidature. Also, that when efforts were made to revive the case, it became spent and was out of time.
?
Counsel submitted that the Respondents? contention that the suit is an abuse of Court process
36
is wrong and more so, that the case of Dingyadi v. INEC & 2 ors (Supra) is not on all fours with this appeal and is therefore inapplicable. Counsel then urged this Court to hold that the learned trial Court erred in law when it held that the suit is an abuse of Court process as a suit cannot constitute an abuse of Court process until all the cumulative elements are met.
OPINION
The learned trial judge held as follows on Pg. 589-590 of the record:
?Having critically examined Exhibits D9 and D10, particularly the Originating Summons instituted at the Federal High Court Warri Division with Suit No. FHC/WR/CS/29/2019, and the High Court of Delta State Ughelli with Suit No. UHC/35/2019, I am of the view that this suit is indeed an abuse of Court process. The suits at Warri and Ughelli were instituted by same parties on same subject matter as this present suit. Even if the questions posed in the Originating Summons are different, granting the reliefs sought in this suit will render the proceedings in those other suits academic as it is clear that what all the suits are concerned with, is the seat of Member of House of Representative for
37
Ughelli North, Ughelli South and Udu Federal Constituency.?
The Appellant conceded that two earlier suits were existing when this one was filed. They all had to do with the rightful candidate of the APC to stand for the General Election. I cannot buy the argument of learned senior counsel for the Appellant that because the questions raised in the suits are different, then the Appellant was at large to file different suits before Courts of coordinate jurisdiction on the same subject matter/cause of action. In Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) Pg. 156, the Supreme Court held as follows:
The multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of right, rather than the exercise of the right, per se. the abuse consists in the intention, purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different
38
Courts, even though on different grounds.?
?Suit UHC/35/2019 was filed in the Ughelli Division of the Delta State High Court on 21/2/19, Suit FHC/WR/CS/93/2018 was filed at the Warri Division of the Federal High Court on 18/10/18 while another suit was filed in Abuja on 2/10/18 as FHC/ABJ/CS/1066/2019 (now Suit No. FHC/WR/CS/29/2019). In Suit UHC/35/2019, the gist of the Appellant?s claim was whether in view of Form CF001 where the 2nd Respondent declared to INEC that he did not present any forged certificates, he perjured and presented false information as to his educational qualifications. And also, that the 2nd Respondent in this appeal was not disqualified because of the fact that he presented false information and a forged certificate with respect to his educational qualification. In Suit FHC/WR/CS/93/2018, the Appellant?s claim was whether he was not entitled to have his name forwarded by APC to INEC being the person who was qualified to contest the primary election and having scored the highest votes. And also, if the 2nd Respondent was entitled to contest the primary election despite submitting documents that contained
39
inconsistent information that were material. In Suit FHC/ABJ/CS/1066/2019, the Appellant?s claim was whether the 2nd Respondent could contest the primary election since he did not comply with Article 31 of the APC Constitution and item 7 and 8 of the APC guideline for nominations of candidates.
There is no doubt that the Appellant is pursuing the same right to the seat at the House of Representatives through different Court cases.
I am of the view that this later suit from which this appeal emanated which in essence is litigating same issues already in different Courts is an abuse of Court process. This issue is resolved against the Appellant.
ISSUE THREE
Whether the learned trial judge erred in failing to pronounce on the substance of the suit.
Learned Senior Counsel for the Appellant submitted that by the constitutional stipulation under Section 285(8) of the 4th Alteration Act, the Court is bound to take all preliminary objections with the substantive judgment. Counsel submitted that the injunction is considered along with the constant admonition that any Court which is not the final Court should always make pronouncements on
40
the merits of the case so that an appellate Court will be seized of the whole matter and also be able to see the reasoning of the lower Court on other issues in the case. Counsel cited Ikechukwu v. FRN (2015) LPELR-2445 (SC); Olowolaramo v. Umechukwu (2003) 2 NWLR (Pt. 805) 537. Counsel submitted that the suit is pre-election/election related where time is of utmost essence. Counsel urged this Court to hold that the lower Court ought to have made a pronouncement on the merits of the case and also, that the powers of this Court under Section 15 of the Court of Appeal Act be invoked so that the jurisdiction of the lower Court will be assumed for definite pronouncements to be made on the merits of the case.
Counsel submitted that the Appellant?s case before the lower Court was based on the fact that the 2nd Respondent withdrew from the election and the Appellant was used to substitute him as the candidate for the 3rd Respondent in respect of Ughelli/Udu Federal Constituency of Delta State. Counsel further submitted that the 1st Respondent had no powers to continue to retain his name as the candidate for him to be declared the winner of the general
41
election which he never participated in. Counsel opined that in reaching a decision on this matter, exhibit C is a crucial document. Counsel further opined that the document had the passport photographs of the Appellant and the 2nd Respondent and it was signed by them. Counsel further opined that exhibit C was also signed by the National chairman of the 3rd Respondent and the National secretary of the party. Counsel opined that the document was duly certified and was received by the 1st Respondent on 18/11/2018. Counsel opined that the 1st Respondent never acted on it and the only reason given for not effecting the change was because the documents were received from a state chapter.
Counsel argued that the document by which exhibit C was forwarded to the 1st Respondent showed the notice of substitution, the letter of withdrawal of candidacy, the notice of withdrawal of candidate, an affidavit, form CF 002(1) and form CF 00 1. Counsel further urged this Court to look at the documents for comparing the signatures of the national chairman and secretary in order to debunk the assertion that exhibit C was from the state chapter of the 3rd Respondent. Counsel
42
further argued that the letter which forwarded exhibit C showed that it was on the letter headed paper of the 3rd Respondent which emanated from the headquarters in Abuja and signed by the national chairman and secretary.
Counsel argued that once it is established that a political party has taken steps to replace a withdrawn candidate from an election, the candidate stands withdrawn and the 1st Respondent cannot continue to deal with that candidate as the 1st Respondent cannot impose a candidate on a political party. Counsel cited Gwede v. INEC (Supra). Counsel cited Adegoroye v. Alliance for Democracy (2003) 46 WRN 47; Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545; Onuoha v. Okafor (2003) 15 NWLR (Pt. 843) 310; Jang v. INEC (2004) 12 NWLR (Pt. 886) 46; Kayode v. APC (2014) LPELR-23092 (CA).
Counsel submitted that the letter of protest was served on the 1st Respondent on 14/2/2019 and the suit that led up to this appeal was filed on 15/2/2019. Counsel further submitted that the failure of the 1st Respondent to effect the necessary change after the receipt of the letter on 14/2/2019 gave rise to a cause of action. Counsel citedKubor v. Dickson (2013)
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4 NWLR (Pt. 1345) 534; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56.
Counsel opined that the substitution remains valid and subsisting because nobody had challenged it. Counsel then urged this Court to resolve the issue in the Appellant?s favor.
Learned Senior Counsel for the 1st Respondent submitted that it is trite law that Courts are to first determine whether they have jurisdiction on a matter before deciding on it. Counsel opined that the rationale for this is to avoid the making of a decision on the substance of the case only for it to be discovered that the Court lacked jurisdiction. Counsel further opined that the trial Court was right when it made a finding in respect of the preliminary objection. And upon finding that it lacked jurisdiction, it declined itself from entertaining the substance of the suit.
Counsel submitted that the proper guidelines for determining the issue of jurisdiction of a Court are to wit: it is properly constituted as regards the members of the bench and no member is disqualified; the subject matter of the case is within its jurisdiction and there is no feature in the case that prevents the Court from
44
exercising its jurisdiction; the case was initiated with due process of law and upon the fulfillment of a condition precedent to the exercise of jurisdiction. Counsel cited Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587 at 595; (1962) 2 SCNLR 341.Counsel submitted that there is a feature in the Appellant?s case that prevented the Court from going into the substance of the case as the Appellant had failed to meet the condition precedent to the exercise of jurisdiction because the case was filed outside the time allowed by law. Counsel further submitted that this condition precedent prevented the trial Court from going into the substance of the case as doing so would amount to conferring jurisdiction where it lacked. Counsel cited Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350; A.G. Federation v. Sode (1990) 1 NWLR (Pt. 128) 500 at 542; NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272 at 294-295.
Learned Counsel for the 3rd Respondent submitted that the failure of the trial Court to go into the merits of the suit did not occasion a miscarriage of justice. Counsel submitted that the trial Court?s jurisdiction was ousted and it would have amounted to an
45
exercise in futility for the trial Court to go into the merits of the case.
Counsel further submitted that the issue of jurisdiction is fundamental as it is the pivot of adjudication. Counsel further submitted that if a Court lacks jurisdiction, it won?t have the competence to try the case and the entire proceeding would be null and void. Counsel citedHonourable Minister for Works and Housing v. Tomas Nigeria Limited and 26 ors (2002) 2 NWLR (Pt. 752) 740 to 750 Ratio 6 or Pages 789 Pars. H-A.
Learned Senior Counsel for the 3rd Respondent submitted that the decision of the lower Court was not affected by the mere fact that a pronouncement was not made on the merit of the case. Counsel submitted that if this Court finds merit in the appeal, it has the power to assume jurisdiction and hear the matter pursuant to Section 15 of the Court of Appeal Act or in the alternative, remit the case to the lower Court for its decision on the merit of the case. Counsel cited Lau v. PDP (2017) LPELR-42800 (SC) at 64 Paras. A-F.
Counsel further submitted that the Appellant?s right to fair-hearing wasn?t affected by the lower Court?s
46
failure to pronounce on the case after it had dismissed the suit as an abuse of Court process and that the action was statute barred.
In the Appellant?s reply briefs to the Respondents? briefs, Learned Senior Counsel submitted that there was no feature in the Appellant?s case that would have prevented the trial Court from going into the substance of the case particularly because the trial Court was wrong in holding that the suit was statute barred and an abuse of Court process.
Counsel further submitted that the trial Court should have made pronouncements on the merits of the case as this is a pre-election related suit where time is of essence as time has been fixed by the Constitution.
Learned Senior Counsel for the Appellant also submitted that every trial Court is bound to pronounce on all issues submitted to it for adjudication. Counsel cited Garba v. Mohammed & ors (2016) LPELR-40612 (SC). Counsel further submitted that having found that the questions raised in the suits were different, the trial Court to have made pronouncements on them.
OPINION
Now, S. 285(8) of the 1999 Constitution (as Altered) states
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as follows:
?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.?
It is a mandatory provision of the Constitution. In interpreting this provision, one must use the purposive approach to find out the intention of the legislature in making the legislation. The alteration was meant to obviate, reduce delay in the hearing of pre-election and election matters so that the procedure hitherto of parties appealing in interlocutory matters would thus elongating the time when the Tribunal or Court would conclude to finality a pre-election or election matter expeditiously.
I cannot agree with the learned Counsel for the Respondents that any attempt by the lower Court to adjudicate on the suit herein would lead to conflicting decisions in respect of the same subject matter which would jeopardize the effective administration of justice. See Alhaji Muhammodu Maigari Dingyadi & Anor v. INEC & 2 ors
48
(2010) All FWLR (Pt. 550) 1204 Ratio 10 at page 1255; NV. Scheep v. Mv.S Araz (2000) 12 S.C.N.J. 24 at 61; Adigun & ors v. Secretary Iwo Local Government & ors (1999) 5 S.C.N.J 205; Central Bank of Nigeria v. Ahmed (2001) FWLR (Pt. 58) 670; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156.
By the resolution of issue 1 against the Appellant, the appeal is liable to be struck out for want of jurisdiction. However, it is expedient and in the interest of justice not to fall into the same pit fallen into by the learned trial judge in refusing to determine the merits of the originating summons having heard and adjourned it for judgment with the preliminary objection.
The best practice and current conventional wisdom which saves judicial time, prevents lengthy litigation and waste of the financial resources of litigants is that trial Courts and lower Courts should as a general rule pronounce on and determine all issues submitted to them for determination so that the appellate Court may have the benefit of their opinion on the matter. This obviates the need to send the case back to the lower Court for resolution with the attendant high cost of and
49
unnecessary delay in resolving the crucial issues agitating the parties. See Brawal Shipping v. Onwudikoko supra; Bello v. Diocesan Synod of Lagos (1973) 3 SC 102; Oro v. Falade (1995) 5 NWLR Pt. 396 Pg. 385; Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 5 NWLR Pt. 656 Pg. 322; Ikechukwu v. FRN (2015) 7 NWLR Pt. 1457 Pg. 1; Owuru v. Adigwu (2018) 1 NWLR Pt.1599 Pg. 1. This Court is the penultimate Court of the land. In the event the Appellant is dissatisfied with the resolution of the first issue and goes on appeal, it would be efficient if the Hon. Justices of the Supreme Court can get the benefit of our opinion on the merit of the originating summons.
S. 285 (10) of the Constitution as amended provides 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.
This Court is the only recourse now open to the Appellant for the effective and full determination of his complaints at trial. In fact this is an ideal example of when it is apt to activate the full force of our powers donated by Section 15 of the Court of Appeal Act 2004 as follows:-
The
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Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or account to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such rehearing or may give other further directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below is that Court?s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.
I am amply supported in this procedure by the
51
recent opinion of my learned brothers in Rt. Hon Adjoto v. Hon. Akpatason and Ors. supra where my Lord Adumein JCA opined as follows:
?In this case, the trial Court, after deciding the question relating to its jurisdiction, ought to have proceeded to decide the all-important issue of who won the disputed primary election, based on the evidence before it. Having regard to the fact that the Appellant?s suit was filed on 18th day of March, 2019, remitting the suit to the trial Court for its reasons on the merits of case will be an exercise in futility in view of Section 285 (10) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which requires a pre-election suit to be determined by the High Court within 180 days from the date of filing the suit. In any case, the evidence before the trial Court is substantially documentary and this Court is in good position as the trial Court to evaluate the it(sic). It is now settled that it is not in every case, where a lower Court has failed in its primary duty that an appellate Court will remit case to that Court for rehearing or retrial. See Yusuf v. Co-operative Bank Ltd (1994) 7NWLR
52
Pt. 359 Pg. 676; Katto v. CBN (1999) 6 NWLR Pt. 607 399; Osasona v. Ajayi (2004) 14 NWLR Pt. 894 Pg. 52.?
I am following the above dicta and will proceed to consider the merit of the originating summons.
?
The only matter left is to determine whether or not the 2nd Respondent withdrew his nomination as a candidate of the party to leave the way for the Appellant to be the rightful candidate of the party. The Appellant had stated as follows on paragraph 9-14 of the affidavit in support of the originating summons as following on Pg. 6-7 of the Record:
9. That on the 24th October, 2018 by a letter of same date written on the personal letter head of the 2nd Defendant, signed and delivered by him to the 2nd Plaintiff, the 2nd Defendant voluntary notified the withdrawal of his candidature for the 2nd plaintiff (APC) in respect of member Federal constituency. The certified true copy of the said letter is hereby annexed and marked as EXHIBIT ?B?.
10. That the 2nd Defendant executed the 1st Defendant INEC?s Form CF004A (1) duly signed by the 2nd Defendant, the 1st plaintiff, the party chairman and secretary respectively on the
53
25/10/2018. The certified true copy of the said INEC Cf.004A(i) is hereby annexed and marks (sic) as EXHIBIT ?C?
11. That on the 26th October, 2018, the 2nd Defendant voluntary presented himself before the commissioner for oath at the High Court of justice of the Federal Capital Territory, Abuja and swore to an affidavit identifying himself as the deponent wherein he withdrew is (sic) candidacy. The copy of the said affidavit was served on the 1st plaintiff. The certified true copy of the said affidavit, his personal letter of withdrawal are hereby annexed and marked as EXHIBIT ?D & D1? respectively.
12. That I know as a fact that the passport photograph on Exhibit ?C? and ?D? are that of the same person, the 2nd Defendant.
13. That I know as a fact that I and my other supporters paid the 2nd Defendant visit to show gratitude and to plead for his support in the campaign to ensure victory for the party and he was referred to as a true man of God upon which he pledge (sic) for his total solidarity to the party and promised to give me all necessary support, and I then believed him.
14. That
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on the 29th October, 2018 by a letter of same date addressed to the chairman of the 1st Defendant (sic) the 1st plaintiff served the notice of substitution on the 1st Defendant substituting Rev. Waive Ejiroghene Francis the then candidate for House of Representative Udu, Ughelli North and Ughelli South Federal Constituency in Delta State with Hon. (Arc) Julius Efeni Akpovoka. The copy of the said letter is hereby annexed and marked as EXHIBIT ?E?
Contrary to the averments of the Appellants, the 2nd Respondent at Paragraphs 25-32 of the counter affidavit in opposition to the originating summons on Pg. 213-214 of the record as follows:
25. That the 2nd Defendant scored the majority votes cast at the APC primary election.
26. That paragraph 8 is false and Exhibits A2 and A3 attached therein are false and or not genuine and are simulated to hoodwink this Court.
27. That the 1st Plaintiff also tendered similar documents in the Federal High Court sitting at Warri in respect of the same subject matter in this suit.
28. That the Federal High Court sitting at Warri ordered parties to file pleadings in the case as all counsel in the
55
matter agreed that the matter was highly contentious.
29. That the 1st Plaintiff?s name was never at any time forwarded to the 1st Defendant. The 1st Plaintiff did not win the APC primary election.
30. That Exhibits ?B?, ?C?, ?D? and ?D1? referred to in paragraphs 9, 10 and 11 of the 1st Plaintiff?s affidavit are false and are not genuine.
31. That the 2nd Defendant informed me on 29th March, 2019 in chambers at about 3:00pm and I verily believe him that he wrote a letter to the APC National chairman on 19/12/2018 and copied the Legal Department on the subject ?Notice to discountenance the false or not genuine letter of withdrawal? purportedly signed by the 2nd Defendant. Attached herewith is a copy of the said letter marked as Exhibit ?D6?.
?
Clearly there are very conflicting averments in both affidavits. In the absence of oral evidence, I will determine the issue on the basis of documentary evidence attached to the affidavits. While the Appellant claimed that the 2nd Respondent withdrew his nomination, the 2nd Respondent denied that he withdrew his
56
nomination. I have looked at the Exhibits attached to the counter-affidavit particularly Exhibit D1 in which APC National Headquarters Abuja denounced the letters which purportedly emanated from them, the report of the primary election as prepared by INEC who had a representative on ground which was marked as Exhibit B. I am particularly struck by P. 264 of the record wherein one Kamilat Okunola-Daramola as senior legal officer of the APC by sworn affidavit on Pg. 12/2/19 denied receipt and acknowledgement of the letter of withdrawal of the 2nd Respondent by the APC at any time. The deponent asserted that official stamp and signature were forged. This is grave indeed. Suffice it to say, I am convinced that the 2nd Respondent did not at any time withdraw from the race to be elected as a member of the Federal House of Representatives in order to give way to the Appellant. I am of the view that this factual point be resolved against the Appellant.
In the circumstances, this appeal has no merit and it is hereby dismissed. I award N200,000.00 against the Appellant in favour of the 2nd Respondent. The erudite, well thought out judgment of Hon.
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Justice (DR.) N.O. Dimgba delivered on 11/6/19 in Suit No. FHC/ASB/CS/30/2019 is hereby affirmed.
PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA.
I share the same view and agree with the reasoning and conclusion reached that this appeal lacks merit. I however wish to add the following comments: No matter this side of the coin that is looked at, it must be noted that there has to be specific time when a cause of action arose so as to afford the plaintiff a total grievance for which he can approach the counts for any remedy. In this view, each case has to be decided in line with its peculiar facts and circumstances albeit relying on the general principles established by the Supreme Court in its various pronouncements arising from the interpretation of S. 285 (9) of the 1999 Constitution (As Altered).
?S. 285 (9) of the Constitution altered reads thus:
Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14days, from the date of the occurrence of the event, decision or
58
action complained of in the suit.
In the present case the Appellant became aware of the name of the 2nd respondent being retained on the ballot box and published by INEC on 30th January, 2019. The said action was thereafter filed on 15th February 2019 well outside the 14 days limitation period as allowed by the Constitution.
Accordingly, the said action in line with the finding of the lower Court is hereby adjudged time barred. From the totality of all of the above comments and the more elucidating pronouncements of my learned brother in the lead judgment, I too find that this appeal is without merit, it fails and it is hereby also dismissed by me with costs of N200,000.00 against the Appellant in favour of the 2nd Respondent. I also affirm the Judgment of the lower Court.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the Judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJI, JCA.
I agree entirely with the reasoning and conclusion therein. I also dismiss the preliminary objection.
?My Lord has exquisitely treated the three issues formulated for determination in this
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appeal. I have nothing more to add. I also affirm the decision of the lower Court.
I agree that this appeal lacks merit and should be dismissed. I abide by the order as to cost in the lead Judgment.
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Appearances:
A.U. Idris, Esq. with him, E.O. Namuna, Esq.For Appellant(s)
M.N. Akpan, Esq. with him, B. Odion holding the brief of Abdulazeez Sami for the 1st Respondent.
Prof. O.K. Edu with him, Joseph Oluwagbohunmi, Esq. for the 2nd Respondent.
M.O. Omonade, Esq. with him, R.E. Waive for the 3rd RespondentFor Respondent(s)
Appearances
A.U. Idris, Esq. with him, E.O. Namuna, Esq.For Appellant
AND
M.N. Akpan, Esq. with him, B. Odion holding the brief of Abdulazeez Sami for the 1st Respondent.
Prof. O.K. Edu with him, Joseph Oluwagbohunmi, Esq. for the 2nd Respondent.
M.O. Omonade, Esq. with him, R.E. Waive for the 3rd RespondentFor Respondent
