OBI & ANOR v. MOSES & ORS
(2020)LCN/15350(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, July 22, 2020
CA/PH/122M/2020(R)
RATIO
APPEAL: WHETHER FOR THE LEAVE TO APPEAL TO BE GRANTED IT IS SUFFICIENT FOR THE APPLICANT TO SHOW THAT THE APPEAL IS ARGUABLE ON THE FACE OF IT.
Learned Counsel for the Respondents in his Written Address has contended that this application, there being no valid Notice of Appeal is incompetent. He cited Order 7 Rule 2 of the Court of Appeal Rules. I respectfully disagree.
The pedestal on which this type of application for leave to appeal stands is Order 6 Rule 2 of the Court of Appeal Rules. It reads thus:
“Any application to the Court for Leave to appeal (other than an application made after the expiration of the time for appealing) shall be by Notice of Motion which shall be served on the party or parties affected.”
An Applicant to bring this type of application does not need to have appealed.
An application for Leave to appeal presupposes that no appeal has been filed. The Applicant in an application for Leave to appeal is not required to show that the appeal would succeed. For Leave to be granted it is sufficient for him to show that the appeal is arguable on the face of it. He must also show a prima facie case that the lower Court committed an error of law or has failed to exercise its discretion judicially as has based on the exercise of such discretion on wrong principles. See HOLMAN BROS (NIG) LTD vs. KIGO & ORS (1980) LPELR-1370 (SC), AMAECHI vs. OMEHIA & ORS (2012) LPELR-20603 (SC) EDE vs. NWIDENYI, (1988) 5 NWLR (pt. 93) page189. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
Before Our Lordships:
Isaiah Olufemi Akeju Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
1. OKIRIGWE JASON OBI 2. NWADAVID SIMEON, S. J. APPELANT(S)
And
- DELE MOSES 2. POOMI FRIDAY 3. GBOSI VINCENT 4. NWANKWO FREEDOM 5. OTIOMA LUCKY 6. KINGDOM NWOSU 7. TUANWIN ATENI 8. UGOCHUKWU NWOCHA 9. PETER N. BOBMANUEL 10. EMMANUEL OKIASI AND 11. ALL PROGRESSIVE CONGRESS 12. ADAMS OSHIOMOLE RESPONDENT(S)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Ruling on the Motion on Notice filed by the Applicants seeking leave to appeal as interested parties against the Judgment of High Court of Rivers State in Suit No. PHC/4634/2019:BETWEEN DELE MOSES & ORS VS. ALL PROGRESSIVE CONGRESS & ANOR delivered on the 9/6/2020 by Honourable Justice G. O. Omereji.
The Grounds upon which this application is brought are:
1. In September 2019, the 11th Respondent pursuant to its Constitution issued Guidelines for the conduct of Ward, Local Government and State Congresses in Rivers State, which said Congresses were to be held between 17th September, 2019 to 2nd October, 2019.
2. Upon the 11th Respondent issuing the said Guidelines, the Applicants paid for the purchase of the nomination Forms for the various Ward, Local Government and State Congresses in Rivers State and were issued with the said Forms.
3. Soon after 11th Respondent issued the said Guidelines for the conduct of Ward, Local Government and State Congresses in Rivers State, the 1st Set of Respondents filed SUIT NO. PHC/4634/2019: BETWEEN DELE MOSES & ORS vs. ALL PROGRESSIVE CONGRESS & ANOR which Judgment was delivered on the 9th June, 2020 by the High Court of Rivers State
4. The Judgment obtained by the 1st Set of Respondents is to the effect that all the members of the ALL PROGRESSIVE CONGRESS who paid for nomination forms for the Congresses conducted in May, 2018 and which were nullified by the High Court of Rivers State in Suit No. BHC/78/2018: BETWEEN IBRAHIM UMAH & ORS vs. ALL PROGRESSIVES CONGRESS are the only ones legible to contest any rescheduled congresses of the ALL PROGRESSIVE CONGRESS in Rivers State.
5. The subsistence of this Judgment will prevent the Applicants from participating in the said Congresses notwithstanding the fact that they have paid for and issued with the said nomination Forms.
6. The Applicants have the right to aspire to be Ward, Local Government and State Executive Members of the All Progressive Congress in Rivers State by way of participating in the forthcoming Congresses to be conducted by the party in that regard.
7. That All Progressive Congress is bound by the Constitution of the Federal republic of Nigeria 1999 (as amended) and its Constitution to conduct the said congresses in a democratic manner to accommodate all interested aspirants, including the Applicants.
8. The trial Court in the said Judgment held that the Suit in which it gave the Judgment is a pre-election matter.
9. Being a pre-election matter as held by the trial Court, the Applicants are expected to file their Notice of Appeal within 14 days from the date of the delivery of the said Judgment.
10. The Applicants have just 5 days to the expiration of the statutory 14 days.
11. The Applicants were not able to bring this Application early brought because of the delay occasioned by the trial Court in making available the Judgment of the trial Court. The said Judgment was issued to the Applicants on the 16th June, 2020.
12. Without the Judgment of the trial Court, this Application will not be competent.
13. The proposed Notice of Appeal is exhibited as EXHIBIT 10.
14. The Applicants not being parties to this Suit at the trial requires the leave of this Honourable Court to appeal as persons interested in the said Judgment.
The application is supported by 21 paragraphed affidavit and an additional 12 paragraphed affidavit.
The 1st set of Respondents to oppose the application filed 9 paragraphed Counter-affidavit and a Further Counter-affidavit containing 12 paragraphs.
The Applicants and the 1st set of Respondents filed written addresses.
SUBMISIONS OF COUNSEL
SUBMISIONS OF APPLICANTS’ COUNSEL
The application was dated and filed on the 19-06-2020. Counsel for Applicants Chief N. Ebete formulated one issue for determination of this application.
ISSUE FOR DETERMINATION
1. Whether given the facts and circumstances of this case the Applicants are entitled to the reliefs sought by the Applicants.
LEGAL ARGUMENTS
The Applicants are seeking the Leave of this Court to apply as Interested parties against the Judgment of the High Court of Rivers State delivered on the 9th day of June, 2020.
The Applicants brought this application under Section 243(1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel argued that the phrase any other person having an Interest in the matter has been interpreted by the Supreme Court in the Case of CPC vs. Nyako & Ors (2011) 6-7 (SC) (pt. 11) 193 at p. 209 lines 9 to 36, LPELR-23009 (SC) Pp. 8-10, paras. F-B, per Mohamud Mohammed, JSC in Interpreting Section 233(5) of the Constitution which is impari material with Section 243(1) of the Constitution. Counsel also cited the case of Assams & Ors vs. Ararume & Ors (2015)LPELR-40828 (SC) Pp. 27-28, paras. D-F per China Centus Nweze, JSC, this time around, the Supreme Court Interpreted Section 243(1) (a) of the Constitution as it relates to the phrase, “any person having an interest in the matter.”
The Applicants have showed through the Grounds of Appeal and Affidavit in support of the application that they are members of the 11th Respondents contesting various party positions. They supported this with Exhibits 1 and 2 (party membership Cards). That Congress was held in May, 2019 and same was challenged by some members in Suit No. BHC/78/2018. The High Court of Rivers State nullified the congress. The 11th Respondent issued another notice in September, 2019 that it was going to conduct a Congress to fill party positions. Immediately after this notice, Ibrahim Umar and Ors filed Suit No. PHC/3098/2019: Between Ibrahim Umar & Ors vs. APC seeking a declaration that only those that paid for nomination Forms in May, 2018 were eligible to contest the primaries. This Suit was struck out for want of prosecution.
The 11th Respondent then issued fresh Guidelines for the conduct of the primaries and fixed the primaries for December, 2019. These Guidelines directed any member who wished to contest the election unto any party office to pay the prescribed fees for nomination Forms into a designated Bank Account. The Applicants and others paid N100,000.00 each to contest the election into the position of council chairman. The bank tellers used to pay were exhibited as Exhibits 3 and 4 respectively, were issued nomination Forms which are exhibited as Exhibits 5 and 6 respectively.
The 1st Set of Respondents instituted Suit No. PHC/4634/2019: BETWEEN DELE MOSES & ORS vs. ALL PROGRESSIVE CONGRESS & ANOR challenging the new Guidelines and praying the Court to hold that only those who paid for the nomination Forms in May, 2018 were eligible to contest the rescheduled primary election of the 11th Respondent. These reliefs were granted. The Judgment is attached as Exhibit 1.
The Applicants as persons wishing to contest the party primaries but now foreclosed by the Judgment have brought this application seeking leave to appeal that Judgment. Their application is attached as Exhibit 11. Counsel urged this Honourable Court to grant the Leave on the basis of the overwhelming facts.
The 1st Set of Respondents filed a Counter-affidavit of 7 paragraphs dated 20/6/2020 contending that PHC/4634/2019 was a pre-election matter and a notice to appeal; same must be filed within 14 days. That since this application was not granted on 22nd June, 2020, being the last day of the 14 days allowed by law, it is incompetent.
Counsel submits that this contention is misconceived because the subject matter is Suit No. PHC/4634/2019 was not political – within the provisions of Section 285(14) of CFRN 1999 (as amended). In support of this contention, Counsel reproduced Section 285(14) (a) (c) of the Constitution of Federal Republic of Nigeria, 1999 (Fourth Alteration Act No. 21) 2017, wherein the word pre-election matter was defined.
Counsel submits that from the definition of a pre-election matter, what the 1st Set of Respondents challenged at the trial Court did not qualify as a pre-election matter because the Guidelines they were challenging were not prescribed by INEC towards the conduct of a general election or Guidelines of a party for conduct of party primaries.. Counsel entails that a Guideline for conduct of party primaries to fill vacant party offices at a time, there is no national election regulated by INEC is not within the contemplation of Section 285(14) of the CFRN 1999 (as amended). Reference was made to the definition of pre-election matter inAPC vs. LERE (2019) 5 -6 SC (pt. 110) 59 at page 82 Lines 9 to 21.
To counsel for the action in Suit No. PHC/4634/2019 to qualify as a pre-election matter, under Section 285(14) of the CFRN 1999 (as amended), it must relate to party primaries for selection and nomination of candidates for an election as prescribed. That the 1st Set of Respondents were not aspirants for primaries but merely seeking election into party offices. Refers to ARDO vs. NYAKO & ORS (2014) LPELR-22878 (SC) Pp. 48-49.
Counsel submits that the conduct of party primaries to fill party offices is not one of the guidelines prescribed by INEC as a process for conduct of General election. It is a matter that borders on the leadership of the party. Reference was made to UFOMBA vs. INEC & ORS (2017) LPELR-42079 (SC) 30-33, paras. A-C.
Counsel submits further that it is only when the case decided is a pre-election matter that an appeal emanating from it can be said to be a pre-election matter within the meaning of Section 285(14) of the CFRN 1999 (as amended). Counsel submits that the language on the Section is clear and unambiguous. Reference was made to AGI vs. PDP & ORS (2016) LPELR 42578 (SC) Pp. 52-53, paras. E-A.
Counsel contended that Section 285(14) of the CFRN 1999 (as amended) contemplate election into party offices. To read this into the Section will amount to reaching unto Section what is not there and the law will not allow this. Reference was made (i) AFAR VS. GOVT OF KWARA STATE 4 CLC p. CLC p. 458 at 451. (ii) ASSAMS & ORS VS. ARARUME & ORS (2015) LPELR-40828 (SC) Pp. 12-1, paras.F-B. (iii) AYENI vs. UNIV OF ILORIN (2000) 2 NWLR (pt. 644) P. 290 at 305 paras A-B 307 para. A.
Counsel further relied on ADISA vs. OYINWOLA (2000) FWLR (pt. 8) p. 1349 at 1391 wherein the Supreme Court held interpreted Sections 39 and 41 of the Land Use Act, 1978. In that case, the Supreme Court held the omission of the word exclusive in Section 41 vis-à-vis Section 39 meant that the law did not intend to confer exclusive jurisdiction on those Courts mentioned in that Section. The Court said it was wrong to read exclusive (1) jurisdiction into Section 41 when it is not there.
Counsel contended that contrary to paragraph 7 of the Counter affidavit in which the 1st Set of Respondents contended that there is no special circumstance to warrant the granting of this application, paragraph 11, 12, 13 and 14 of the affidavit contain special circumstances. That a party who has an interest in an appeal can apply for leave to appeal. This according to Counsel was the purport of the decision inALIOKE vs. OYE & ORS (2018) LPELR 45153 (SC) Pp. 18-19, paras. D-C.
Counsel submits that another consideration for leave to appeal is that the proposed Notice of Appeal must disclose substantial and arguable Grounds of Law. He referred to CPC & ANOR vs. NYAKO & ORS (supra) at 15-16, paras. C-A. Counsel further submits that the proposed Notice of Appeal, Exhibit 10 discloses arguable and substantial Ground leading on jurisdiction. He urged this Court to grant the application – because they have complied with conditions required to grant same.
WRITTEN ADDRESS OF THE 1ST – 10TH RESPONDENTS
ISSUE FOR DETERMIANTION
(1) WHETHER IT IS APT TO REFUSE THE RELIEFS SOUGHT BY THE APPELLANTS
ARGUMENT:
The 1st to 10th Respondents sub-divided the lone issue into four issues and treated same seriatim:
(a) Whether the Applicants can be granted leave to appeal as interested persons in PHC/4634/2019 under Section 241(1) (a) and (b) of CFRN (as amended)?
The 1st to 10th Respondents summarized the Applicants arguments thus:
The Applicants relied on CPC & ANOR vs. NYAKO & ORS 2011 (supra) and ASSAMS & ORS vs. ARARUME & ORS (2015) to argue that they can reap the benefits of Section 243 (1) (a) of the Constitution. The Applicants argued they were members of the 11th Respondents who were aware of the pendency of Suit Nos. PHC/78/2018 and PHC/4634/2019 and were also interested in contesting the election into executive positions of the 11th Respondent. The 1st – 10th Respondents argued under this sub-head that since the Applicants were not parties to the two Suits whatever interests they had in them were protected by the 11th Respondent (their political party) – which was served and represented throughout the proceedings. Respondents contended that at all material times, the Applicants were aware of the existence of Suit No. BHC/78/2018 which lasted from May 10th, 2016 to October 10, 2018 and did not pursue their interest. Reliance was placed on Exhibit DELE 1 and the case of CHIEF OF ARMY STAFF vs. LAWAL (2012) 10 NWLR (pt. 1307) 62 page 74, paras. C-D, where it was held that a person who knowingly stands by and allow others to fight for him is bound by the outcome of the case as if he was a party thereto.
The 1st to 10th Respondents further argued that a look at Grounds 3, 4 and 14 of the Grounds of Appeal and paragraphs 5, 6, 7 and 19 of the Affidavit in support of Motion shows that the Applicants were aware of the existence of Suit No. PHC/4634/2019 and did nothing. Counsel reproduced paragraphs 5, 18 and 19 of the Applicants Affidavit and submitted that having chosen to stand by the Applicants cannot invoke Section 243(1) of CFRN 1999 (as amended) for Leave to appeal as persons interested. Reliance was placed on OLAJA-ORIRI V. ITSEKIRI COMMUNIAL LAND TRUSTEES (1973) 1 ALL NLR Vol. 1 (pt. 2) p. 272 Line 9-14 where Fatai Williams, JSC said:
“The phrase “at the instance of any other person having an interest in the matter” is clearly not intended to apply to a person who stand by and allow his battle to be fought to his knowledge and on his behalf, by another members of his community and who then applies, because he does not like the Judgment, for leave to appeal against it.”
Counsel submitted that the facts of CPC & ANOR vs. NYAKO & ORS 2011 (supra) and ASSAMS & ORS vs. ARARUME & ORS (2015) are distinguishable from the facts of this case, to Counsel, the Applicants stood by and allowed the 1st to 10th Respondents to fight their battle.
Counsel contended that by virtue of Section 221 of the Constitution of Federal Republic of Nigeria (as amended), the interest of the Applicants are covered by the preserve of their political party, APC in the Suit as the 11th Defendant.
Counsel reproduced Section 221 CFRN 1999 (as amended). Counsel buttressed this point by asserting that the Applicants are not independent candidates but members of APC that was a party to the Suit. He relied on AMAECHI vs. INEC (2007) 18 NWLR (pt. 1078) 546 at 659-660 and AGBAJE vs. INEC & ANOR (2016) (pt. 1501) 151 at 171 paras. C to E, where Sanusi, JSC (as he then was) said:-
“I wish to emphasize that there is no gainsaying that the Appellant was sponsored by his own party PDP which decided to discontinue with the appeal for undisclosed reason that being the case, do not think the Appellant has competence or locus standi to continue with his appeal. If he tries to do so, it could appear that his fighting the case as an underground party. Our Electoral Act, to my knowledge, has not made provision for independent candidacy, only a political party can stand for election through the candidate it fields or sponsors to represent it. No candidate is allowed by the Electoral Act to contest at large.”
Counsel contended that since the Applicant was members of APC that was sued as the 11th Respondent, there was no need to join them in the Suit. He relied on CHIEF OF ARMY STAFF vs. LAWAL (supra), GREEN vs. GREEN and paragraph 2 of the Affidavit in Support of Motion dated 19/6/2020, where Applicants admitted that they are members of APC.
Counsel contended that the Judgments in Suit No. BHC/78/2018 and PHC/4634/2019 are Judgments in rem and they bind the Applicants as members of APC. Counsel relied on the definition of a Judgment in rem by KEKERE EKUN, JSC in COLE vs. JIBUNOH & ORS (2016) 4 NWLR (pt. 1503), 499 at 532. Reliance was also placed on OKPALUGO vs. ADESHOYE (1996) 10 NWLR (pt. 476); FOINTRADES LTD vs. UNI ASSOCIATION CO (2002) 8 NWLR (pt. 720) 669 and OLANIYAN vs. FATOKI (2003) 13 NWLR (pt. 15) 241.
(b) Whether the Appellants complied with the “special circumstance” provision in Order 6 Rules 3 and 4 of the Court of Appeal Rules, 2011.
Counsel referred to Orders 6 Rules 3 and 4 of the Rules of this Honourable Court to contend that there is nothing to show the Applicants’ fact would this application before the lower Court or any special circumstance why the Application should be brought directly to this Court:- Counsel submitted that to anyone that the facts in paragraphs 11, 12 and 14 of the affidavit constitute special circumstance is misleading. Respondents’ counsel inability to obtain CTC of Judgment and the fact that the lower Court cannot hear the application within 5 days since it is a pre-election matter are not special circumstances. Applicants should have approached the lower Court and all that Court deliver a ruling that it is not able to hear the matter within 5 days. Reliance was placed on TITANLAYE ABDULGANIYU ALFA vs. DAVID ADEBAYO (2013) ALL FWLR (pt. 687) 816; AYINLA vs. SCOA (1953) 20 NLR 154 and OKYE vs. C.O.P (1959) MRNLR 93 to support the contention that failure to obtain CTC of Judgment is not a good reason for failing to appeal within time.
Counsel referred to the case AKINPELU vs. ADEGBORE (2008) 10 NWLR (pt. 1096) 531 at page 555 paragraph E for a definition of what constitutes special circumstance. In that case, the Supreme Court defined special circumstance.
He then prayed this Honourable Court to dismiss this application because the Applicants did not show any special circumstance which made them unable to apply to the Court below.
(c) Whether PHC/4634/2019 (supra) is a pre-election matter within the contemplation of Section 285(14) CFRN 1999 (as amended).
Referred to the definition of pre-election matter as contained in Section 285(14) CFRN 1999 (as amended) by the Supreme Court in APC vs. UMAR (2019) 18 NWLR (pt. 1675) at 576, paras. C-D as per Sanusi, JSC (as he then was).
Counsel submits that the attempt by Applicants’ Counsel to give a contrary to the definition is of no moment. In this quest, Counsel to the appellant fused the meaning of “aspirant” in Section 285(14) CFRN 1999 (as amended) with that of Section 285(1)(b) CFRN 1999 (as amended) in order to show that the subject matter in PHC/4634/2019 is not a pre-election matter. Respondents’ Counsel noted that contrary to this submission in ground 8 of the Grounds of Appeal, paragraphs 10, 11 and 12 of the Affidavit of the applicants admitted that PHC/4643/2019 is a pre-election matter. In paragraph 15 of the same affidavit they also admitted that no appeal had been filed.
Counsel then submitted that on the basis of the admission by the Applicants, the Respondents do not need to give any further evidence to show that PHC/4643/2019 is a pre-election matter as contemplated by Sections 285(11) and 285(14) CFRN 1999 (as amended) (supra). Reliance was placed on Section 123, Evidence Act, 2011; NARINDEX TRUST LTD vs. NICMB LTD (2001) NFWLR (pt. 49) 1566, CROWN FLOUR MILLS LTD vs. OLOKUN (2008) 4 NWLR (pt. 1077) 250.
He finally contended that the Applicants are estopped from approbating and reprobating. Reliance was place on A-G RIVERS STATE vs. A-G, AKWA IBOM STATE (2011) 8 NWLR (pt. 1248) 31 at page 99 paragraphs D-H.
Counsel finally submitted on this score that the judgment in Suit PHC/4634/2019 is binding until it is set aside. He relied on the Supreme Court decision in UMAR vs. APC (2018) NWLR (pt. 1650) 139 at page 156 para. E as per OKORO, JSC.
(d) Whether the Applicants’ Motion is an academic exercise?
Counsel submitted that the application is an academic exercise because even if the Leave is granted, no valid Notice of Appeal can be filed because the 14 days prescribed by Section 285(11) CFRN 1999 (as amended) has expired. Reliance was placed on UMAR vs. APC (supra) for that amounts to academic exercise. The Supreme Court said: “it is settled law, that a matter or suit becomes academic when it becomes purely truncated and is of no value to the Plaintiff or Appellant if Judgment is given in its favour.”
Counsel then submitted that even if the relief sought is granted, it is useless because the matter is statute barred and the Court has no jurisdiction to hear such a matter even if the appeal is deemed properly filed and served. Reliance was place on Section 285(11) CFRN 1999 (as amended). The Court has no power to enlarge the time prescribed by the Constitution. Counsel referred to ANPP vs. GONI (2012) 7 NWLR (pt. 1296) 147 at 182para. 9; MARWA vs. NYAKO (2012) 6 NWLR (pt. 1298) 1pp at 286 para. F.
Counsel finally contended that there is no valid Notice of appeal before this Court because Order 7 Rule 2 of the Rules of this Honourable Court requires the bringing of a Notice of Appeal stating the Grounds of Appeal in order to have a valid Notice of Appeal. Counsel concluded by praying this Court to resolve the lone issue in favour of the 1st – 10th Respondents and dismiss the application.
REPLY ON POINT OF LAW BY THE APPLICANT
In reaction to the contention of Counsel to the 10th Respondent that Applicants stood by while Suit No. PHC/4634/2019 was fought, Counsel submits that there is nothing in Section 243(1) CFRN 1999 (as amended)that precludes a person who stood by from appealing as an interested party. That it is the outcome of the Judgment that fives Applicant the locus to appeal. This is because it is only whom the Judgment is delivered, that a party affected will know how it affects him.
Counsel submits that the case of Olaja-Oriri vs. Itsekiri Communal Land Trustees (1973) 1 ALL NLR Vol. 1 (pt.) 272 at 281 Lines 9-34 is not applicable to this case. Submitted that the applicable cases are C.P.C & ANOR vs. NYAKO & ORS (supra) and ASSAMS & ORS VS. ARARUME & ORSbecause these decisions are latter in time.
Counsel submits that Section 221 CFRN 1999 (as amended) does not apply to this case because the Applicants were not canvassing for votes under the Electoral Act. All they are asking is for a right to participate in the election of the officers of the 11th Respondent. The contest is an internal affair of the 11th Respondent.
It is contended that even if the applicants are members of the 11th Respondent, they have a right to appeal pursuant to Section 243(1) CFRN 1999 (as amended) in a situation which internal regulations have prevented the party from appealing the Judgment.
Counsel submits that AGBAJE vs. INEC (2016) 4 NWLR (pt. 1501) 151 at 171 paras. C-E does not apply to this case. That this case is related to a challenge on the powers of a political party to sponsor a candidate for an election under the Electoral Act. Once the party has presented a candidate for an election, the party and the candidate sink or swim together. The case here relates to the filing of positions to party officers. Here the participants had purchased the Forms but no one had been cleared by the party to run for the election into the party offices.
Counsel also submits that the case TITANLAYE A. ALFA vs. DAVID ADEBAYO (2013) ALL FWLR (pt. 687) page 816, ANYINLA vs. SCOA (1953) 20 NLR 154; OKOYE vs. C.O.P (1959) NWLR 93, do not apply here. By Order 7 Rule 7 of the Rules of this Court, an applicant for leave of this Court must attach the following documents:
(a) Notice of Motion
(b) CTC of the decision of the Court below.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(c) a copy of the proposed notice and grounds of appeal; and
(d) a copy of the order refusing leave from the lower Court where applicable.
Counsel submits that the case of APC vs. UMAR (2019) 18 NWLR (pt. 1675) at 576 paras. C-D does not apply to this case. Counsel submits that the facts in that case are distinguishable from the this present case. The distinguishing factors are:
(a)APC vs. UMAR (supra) was based on a judgment of the High Court of Rivers State in Suit BHC/78/2018: BETWEEN IBRAHIM UMAR & ORS vs. APC, in that case the Congress in issue were conducted in May 2018 before the primaries to elect the candidates of the 11th Respondent for 2019 General Elections. As at that date INEC had fixed a date for the General Elections. That in that case, the Supreme Court upheld the submission that the election of party executives who ultimately participated in the election of candidates of the party for a general election is a pre-election matter.
(b) The Congress the 11th Respondent is conducting has nothing to do with a general election. INEC fixed a date for a general election or election to fill vacancy occurring in an elective position. This is usually not earlier than 150 days or latter that 30 days before a general election. In the case of a vacancy, 90 days before the election.
So APC vs. UMAR (supra) does not apply to congress on election when INEC has not fixed any election. It is the fixing of a date for an election that kick-start the pre-election process.
Submits that the definition of pre-election matter in APC vs. LERE (supra) is the correct definition because it is a decision that is latter in time.
Counsel submits that paragraphs 11 and 12 in that Applicants’ affidavit are not admissible. This is because these paragraphs were referring to what the trial Court held and not that the applicants appealed with it.
Counsel argued that in alternative even if the depositions in paragraphs 11 and 12 of the affidavit in support amounted to admissions, that cannot change the position of the law enacted as Section 76(1) and (2), 116(1) and (2), 132 (1) and (2) and 178(1) – (8) of the Evidence Act, 2011 (as amended).
It was further submitted that the case is not a pre-election matter but an internal affair of a political party relationship to the leadership of the party. Counsel relied onAPC vs. LERE (2019) 5-6 SC (pt. 11) 59 at page 91 where Supreme Court defined internal affair of a political party. Counsel submitted that the dispute to the refusal of the 11th Respondent to issue nomination forms to them that this facts fall within the internal affairs of a political party. Reliance was placed on APC vs. LERE (supra).
Counsel submitted in the alternative that even if it is a pre-election matter, an application to appeal is an appeal in itself. Reliance was placed on Order 1 Rule 5 of the Court of Appeal Rules, 2016. The Application was filed on 19/6/2020, five days before the expiration of the prescribed 14 days, which is 22/6/2020. Since the Applicants are applying as interested persons and do not fix date for hearing, this is an appropriate occasion to invoke Order 1 Rule 5 of the Court of Appeal Rules, 2016.
Counsel relied on their submission at paragraphs 2.12 and 2.19 herein as their answer to paragraphs 3.23 and 3.37 of the 1st Set of Respondents.
Counsel urged this Court to discountenance the submissions of the 1st Set of Respondents.
RESOLUTION OF ISSUE
I have deeply considered the submissions of learned Counsel and the issues proposed for determination by learned Counsel on both sides.
I am of the firm view that the sole issue formulated by the Applicants is very apt and wide enough for the just determination of this appeal. I therefore adopt same.
SOLE ISSUE
Whether given the facts and circumstances of this case, the Applicants are entitled to the reliefs sought by the Applicants.
From the processes filed in this Court, it is clear that the application is in respect of a pre-election matter. This much is conceded by the Applicants in their application. See also the decision of the Supreme Court in APC vs. UMAR (2019) 18 NWLR (pt. 1675)564 at 576. The facts of A.P.C vs. UMAR (supra) are quite similar to the facts of the instant application.
The Respondents in APC vs. UMAR (supra) were the Plaintiffs at the lower Court. They filed originating Summons on 8/3/2018 before the High Court Rivers State. The grouse of the Plaintiff as per the originating Summons was that they paid for nomination forms to participate in the Ward Congress of the party but they were stopped by party officials from partaking in the exercise leading to their being disenfranchised. The trial Court in a considered Judgment granted all the reliefs sought in the originating Summons.
Miffed by this said decision, the Appellant unsuccessfully appealed to the Court of Appeal vide a Notice of Appeal filed on 23/10/2018. Hence this appeal to the Supreme Court.
The Respondents to the said appeal filed Notice of Preliminary Objection on the ground that the said appeal is a pre-election matter and was statute barred, and therefore incompetent and should be struck out.
The Preliminary Objection was sustained by the Apex Court as the appeal was held to be in respect of pre-election matter covered by the provision of 285(1) of the 1999 Constitution (as amended).
In his leading Judgment in the case Sanusi JSC had the following to say:
“The word “election” means the process choosing by popular votes, a candidate for political office in a democratic government. Any preparation or process embarked upon by a political party in preparation for an election can as well be regarded as “pre-election” or prior to the election or before the election as opposed to post-election which would relate to any exercise or process done after the election.
Therefore, the process or exercise embarked upon by a political party such as congress, nomination exercise etc. are all pre-election matters or exercise. The exercise involved in congresses of political parties covers or includes activities which are or should be done preparatory to an election, be it for the selection of officers to be members of the executive of the party, or as processes to elect or to prepare and qualify those elected at the congresses to ultimately vie for elective offices to represent the party in the legislature at either Local Government, State or Federal level. Such exercise is a pre-election exercise or matter to which the provisions of Section 285(14) of the 1999 Constitution as (amended) applies.
In the instant case, the Suit being an exercise before or prior to election was caught by or was within the purview of Section 285(14) of the 1999 Constitution as (amended).”
The application of the Applicants in this matter is in respect of Ward, Local Government and State Congresses in Rivers State.
By this application, leave is being sought by the Applicants to appeal as persons interested in the Judgment of the High Court of Rivers State in Suit No. PHC/4634/2019: BETWEEN DELE MOSES & ORS vs. ALL PROGRESSIVE CONGRESS & ANOR delivered on 9/6/2020 more than 37 days after the delivery of the said Judgment.
Now Section 285(11) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has fixed time within which such an appeal can be brought. It reads thus:
“An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the Judgment appealed against.”
The meaning for this application to be grantable, time for the Applicants to appeal had to be extended. This cannot be done as there is no provision for enlargement of time limit fixed by the Constitution. The provision of the Rules of Court cannot be invoked in this regard.
In ANPP vs. GONI (2012) 7 NWLR (pt. 1296) 147 at 182, the Apex Court held on time specified by the Constitution thus:
“The time fixed by the Constitution is like the Rock of Gilbratar or Mount Zion which cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within the time so fixed it lapses as the Court is hereby robbed of the jurisdiction to continue to entertain the matter.”
See also NYAKO vs. ADAMAWA STATE HOUSE OF ASSEMBLY (2017) 6 NWLR (pt. 1562) p. 347.
The prayers of the Applicants in this application are for:
“(1) AN ORDER granting leave to the Applicants to appeal as persons having interest in the Judgment of the High Court of Rivers State in Suit No. PHC/4634/2019: BETWEEN DELE MOSES & ORS VS. ALL PROGRESSIVE CONGRESS & ANOR delivered on the 9th June, 2020 by Honourable Justice G. O. Omereji Judge.
(2) AN ORDER granting leave to the Applicants to appeal against the Judgment of High Court of Rivers State in Suit No. PHC/4634/2019: BETWEEN DELE MOSES & ORS VS. ALL PROGRESSIVE CONGRESS & ANOR delivered on the 9th June, 2020 by Honourable Justice G. O. Omereji.”
(3) AND for such other Order(s) as this Honourable Court may deem fit to make in the circumstances of this application.”
The grouse of the Applicants is further clearly captured in paragraphs 2-6 of their affidavit in support of Motion for Leave to appeal thus:
“(2) The rest of the Applicants and I are members of the All Progressive Congress (APC), a Political Party, duly registered by the Independent National Electoral Commission (INEC) a body with the Constitutional responsibility to register Political Party and regulate their activities in Nigeria. Our part membership slips are hereto exhibited and marked as EXHIBITS 1 and 2 respectively.
(3) In September 2019, the 11th Respondent issued Guidelines for the conduct of Ward, Local Government and State Congresses in Rivers State, which said Congresses were to be held on between 17th September, 2019 to 2nd October, 2019.
(4) Upon the 11th Respondent issuing the said Guidelines, we the Applicants paid for the purchase of the nomination Forms for the various Ward, Local Government and State Congresses in Rivers State and we were accordingly issued with Nomination Forms. Copies of our bank tellers and the said Nomination Forms are hereto exhibited and Marked as EXHIBITS 3, 4, 5 and 6 respectively.
(5) Soon after 1st Respondent issued the said Guideline for the conduct of Ward, Local Government and State Congresses in Rivers State, the 1st Set of Respondents filed Suit No. PHC/4634/2019: BETWEEN DELE MOSES & ORS VS. ALL PROGRESSIVE CONGRESS & ANOR which Judgment was delivered on the 9th June, 2020 by this Honourable Court. A copy of the said Judgment is hereto exhibited and marked as EXHIBIT 7.
(6) The Judgment obtained by the 1st Set of Respondents is to the effect that all the members of the ALL PROGRESSIVE CONGRESS who paid for nomination Forms for the Congresses conducted in May, 2018 and which were nullified by the High Court of Rivers State in Suit No. BHC/78/2018: BETWEEN IBRAHIM UMAH & ORS vs. ALL PROGRESSIVES CONGRESS are the only ones legible to contest any rescheduled Congresses of the All Progressive Congress.”
From the averments in the affidavit and the position of the Supreme Court in ALL PROGRESSIVES CONGRESS vs. UMAR (supra), this matter is a pre-election matter.
I have considered the arguments of learned Counsel for the Applicants to the effect that for a matter to be a pre-election matter, the processes being challenged must be part of the guidelines prescribed by INEC under Electoral Act.
The submissions of learned Counsel even though brilliant were made before the 5 man panel of the Supreme Court in APC vs. UMAR (supra).
The facts leading to the appeal in APC vs. UMAR(supra) are very similar to the facts leading to this appeal. The same arguments raised in the said appeal are the ones raised in this appeal.
The learned Justices of the Apex Court in APC vs. UMAR (supra) deeply considered the amplitude of Section 285(14) of the Constitution of the Federal Republic of Nigeria (as amended). His Lordship, in his leading Judgment had this to further say on the submissions of L. O. Fagbemi, SAN, Learned Senior Counsel for the Appellant on this same issue:
“I am inclined to agree with the submission of the learned counsel for the Respondents that the exercise involved in the congresses covers or includes activities which are or should be done preparatory to an election, be it for the selection of officers to be members of the executive of the party, or as processes to elect or to prepare and qualify those elected at the congresses to ultimately vie for elective offices to represent the party in the legislature at either Local Government, State or Federal level. Such exercises therefore to my mind are pre-election exercise or matter to which the provisions of Section 285(14) squarely applies.”
The facts in APC vs. LERE (2019) 5-6 S. C. (pt. 11) page 59 are distinguishable from the facts of this appeal.
The Apex Court in its unquestionable wisdom in APC vs. UMAR (supra) has given the word pre-election its broadest meaning. A pre-election as opposed to a post-election matter. We are bound by this interpretation.
The Applicants seek for Leave to appeal against the Judgment delivered more than 37 days ago. This cannot be done unless time is extended beyond 14 days from the delivery of the Judgment. This would be unconstitutional and not within the jurisdiction of this Court. See Section 285(11) of the Constitution (as amended).
Learned Counsel for the Respondents in his Written Address has contended that this application, there being no valid Notice of Appeal is incompetent. He cited Order 7 Rule 2 of the Court of Appeal Rules. I respectfully disagree.
The pedestal on which this type of application for leave to appeal stands is Order 6 Rule 2 of the Court of Appeal Rules. It reads thus:
“Any application to the Court for Leave to appeal (other than an application made after the expiration of the time for appealing) shall be by Notice of Motion which shall be served on the party or parties affected.”
An Applicant to bring this type of application does not need to have appealed.
An application for Leave to appeal presupposes that no appeal has been filed. The Applicant in an application for Leave to appeal is not required to show that the appeal would succeed. For Leave to be granted it is sufficient for him to show that the appeal is arguable on the face of it. He must also show a prima facie case that the lower Court committed an error of law or has failed to exercise its discretion judicially as has based on the exercise of such discretion on wrong principles. See HOLMAN BROS (NIG) LTD vs. KIGO & ORS (1980) LPELR-1370 (SC), AMAECHI vs. OMEHIA & ORS (2012) LPELR-20603 (SC) EDE vs. NWIDENYI, (1988) 5 NWLR (pt. 93) page189.
The Applicants in this instant appeal seek leave to do an impossibility. They seek to force an elephant through the eye of a needle.
The prayers of the Applicants in this application are not grantable.
I see no reason to consider the other points raised by the learned Counsel for the parties.
I have no jurisdiction to grant this application. It is accordingly struck out. Parties are to bear their respective costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, TUNDE OYEBANJI AWOTOYE, JCA gave me the opportunity of reading this Ruling before it was delivered. I agree with the reasoning and conclusion of my learned brother and I therefore strike out the application while I abide by the consequential order.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the Judgment delivered by my learned brother T.O. Awotoye, JCA and I agree entirely with the reasoning and conclusions reached therein that the Appeal is unmeritorious. I too dismiss the appeal and abide by all other consequential orders as contained in the lead Judgment including order as to costs.
Appearances:
CHIEF EMENIKE N. EBETE, ESQ. WITH H. OKWUKWU, ESQ. FOR APPLICANTS SEEKING LEAVE TO APPEAL AS INTERESTED PARTIES For Appellant(s)
A. BELLO, ESQ. WITH M. E. NWOSUEGBE,ESQ. C. D. UNACHUKWU, ESQ. K. P.LUKE, ESQ. AND F. C. NWAFOR, ESQ. FOR 1ST – 10TH RESPONDENTS
O. C. EYIBA, ESQ. FOR 11TH & 12TH RESPONDENTS. For Respondent(s)
