PDP & ANOR v. JAMES & ORS (2020)

PDP & ANOR v. JAMES & ORS

(2020)LCN/15282(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/AK/356/2019(R)

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

1. PEOPLES DEMOCRATIC PARTY 2. OSULOWO TIBETAN APPELANT(S)

And

1. GBEGUDU OLOLADE JAMES 2. SINA AKINWUMI EMMANUEL 3. ALL PROGRESSIVE CONGRESS 4. ENGR. ADE ADETIMEHIN (Ondo State Chairman, All Progressive Congress) 5. SINA ALAYE (Ondo State Secretary) (For Themselves And Other Members Of The Ondo State Working Committee Of All Progressive Congress) 6. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

RATIO

THE IMPORTANCE OF JURISDICTION TO ANY COURT PROCEEDINGS

The law is rock-solid that the issue of the jurisdiction of a Court to adjudicate upon an action which includes, applications as in the instant application, is a threshold matter. For, where a Court is devoid of jurisdiction to hear a matter and it proceeds to hear the matter, whatever decision arrived at is a nullity. Hence, the issue of jurisdiction is so fundamental to any proceedings, so, it can be raised anyhow and at any stage of the proceedings, on appeal for the first time, even in the Supreme Court and this Court. See the cases of: (1) Usman Dan Fodio University v. Kraus Thompson Organisation Ltd. (2001) 15 NWLR (Pt. 736) p. 305; (2) NURTW & Anor. v. RTEAN & Ors. (2012) SC (Pt. II) p. 119 and (3) APC v. INEC & Ors. (2014) LPELR-24036 (SC). When therefore a Court does not have jurisdiction to adjudicate upon a suit, an application or an appeal as the case may be, the issue of determining the right of the parties does not arise at all. PER OMOLEYE, J.C.A.

WHETHER OR NOT EVERY COURT DERIVE THEIR JURISDICTION FROM THE CONSTITUTION

The law is equally trite that all the Courts in this country derive their powers and jurisdiction in particular, either from the Constitution which is the supreme, organic and fundamental law, the grund-norm of the country or from statutes as may be permitted by the Constitution. See the cases of: (1) Lekwot & Ors. v. J. T. ONC & C. D. In Kaduna State and Anor. (1997) LPELR – 1778 (SC); (2) Dalhatu v. Turaki & Ors. (2003) LPELR-917 (SC); (3) Adetayo & Ors. v. Ademola & Ors. (2010) 3-5 SC (Pt. 1) p. 87 and (4) Adah v. NYSC (2004) LPELR-69 (SC). PER OMOLEYE, J.C.A.

WHETHER OR NOT THE NATURE OF THE CLAIM OF A PLAINTIFF CAN DETERMINE THE JURISDICTION OF THE COURT

On the determinants of a Court’s jurisdiction, the law is well-settled that, it is the nature of the claim of the Plaintiff, as endorsed on the originating process by which the action is commenced or in an application as the instant one, the orders sought and the facts averred in the affidavit in support thereof, that must be examined in determining the jurisdiction of the Court. PER OMOLEYE, J.C.A.

CONDITIONS TO BE MET BEFORE A COURT CAN EXERCISE JURISDICTION IN RELATION TO A MATTER BEFORE IT

The law is further trite that, the competence of a Court to exercise jurisdiction in relation to a matter before it depends on the conditions that: (1) the matter is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject-matter of the case is within the jurisdiction of the Court, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case comes before the Court having been initiated by due process of law; and (4) upon the fulfilment of any condition precedent to the exercise of the Court’s jurisdiction. It is thus settled that a question of jurisdiction goes to the issue of the competence of both the action and the Court. See the cases of: (1) Madukolu v. Nkemdilim (1962) 2 SCNJ p. 341; (2) Tukur v. Govt. of Taraba State & Ors. (1997) LPELR-3273 (SC); (3) Nwankwo v. Yar’adua (2010) 12 NWLR (Pt. 1209) p. 518; (4) Ugwuanyi v. NICON Insurance Plc (2013) LPELR-20092 (SC); (5) Aladejobi v. NBA (2013) 15 NWLR (Pt.1376) p. 66 and (6) PAKA v. ASIECO & Ors. (2017) LPELR-43015 (CA). PER OMOLEYE, J.C.A.

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This application is for the order of this Court granting leave to the Applicants to file an appeal, as interested parties, against the judgment of this Court in Appeal No.CA/AK/203/2019; Gbegudu Oladele James v. Sina Akinwumi Emmanuel and 4 Others, delivered on the 19th of July, 2019.

The said application is predicated upon eight grounds which state verbatim as follows:
“1. The 1st Applicant/Person seeking leave to appeal as interested party is a registered political party, the Peoples Democratic Party which took part and upon whose platform the 2nd Applicant/Person seeking leave to appeal as interested party contested for the Ondo State House of Assembly Election, Constituency II Okitipupa Local Government Area of Ondo State.
2. The Election which took place on the 9th day of March, 2019.
3. The Applicants/Persons seeking leave to appeal as interested parties did not know that Mr. Gbegudu Ololade James (1st Respondent) instituted an action against the other Respondents (2nd – 6th Respondents) until there was a publication to that effect in the Punch Newspaper.

That Mr. Gbegudu Ololade James (1st Respondent) did not participate in all the stages of the election of 9/3/2019 which is the election in dispute in this appeal.
5. The effect of the decision at the Court of Appeal has affected the rights of the 2nd Applicant/Person seeking leave to appeal as interested party to be returned instead of Mr. Gbegudu Ololade James (1st Respondent) herein and also affected the right of the 1st Applicant/Party seeking leave to appeal as interested party to be declared as the party that won election into Okitipupa Constituency II of Ondo State House of Assembly.
6. The Court of Appeal denied the Applicants/Persons seeking leave to appeal as interested parties of their right to fair hearing.
7. That Mr. Gbegudu Ololade James (1st Respondent) did not participate in all stages of the election that was conducted by the Independent National Electoral Commission (INEC) (6th Respondent) for Okitipupa Constituency II of Ondo State House of Assembly.
8. The Court of Appeal did not have the Constitutional and/or statutory power to grant the orders as their Lordships did.”

The instant application filed on the 15th of October, 2019 is supported by an affidavit of thirty-four paragraphs, nine exhibits marked Exhibits “A” – “I’’ and a further and better affidavit filed on 22nd of October, 2019 in response to the counter-affidavit of the 1st Respondent. Both affidavits were deposed to personally by the 2nd Applicant.

On the 19th of March, 2020 when the application came up before this Court for hearing, the learned Counsel for the two parties were called up to address us on whether this Court is seised with the requisite jurisdiction to adjudicate upon the application, in view of the provisions of Section 285 (11) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017 the subject of the application being a pre-election matter.

The learned Counsel for the Applicants, Mr. O. O. Ayenakin submitted that, the law is trite that, time does not run against an applicant who seeks to appeal as an interested party, against a lower Court’s decision. He relied on the cases of: (1) In re Madaki (1996) 7 NWLR (Pt. 459) p. 153 at p. 164 paras. D – F and (2) Bi-Courtney Ltd. v. A.G. Federation (2019) 10 NWLR (Pt. 1679) p. 112 at p. 135, paras. E – G. The learned Counsel opined that, it does not matter that, the subject-matter of the application has to do with an election or election related matter, as time is not of essence for an applicant who seeks to appeal as an interested party. Hence, an applicant/interested party also is not obliged to seek for extension of time to appeal even when he is out of time as he would have been required to if he were to be an ordinary applicant and not an interested party. The learned Counsel therefore urged upon this Court to take hold of its endued jurisdiction and adjudicate upon the application of the Applicants on its merit.

On the other part, the learned Counsel for the 1st Respondent Mr. I. I. Olanipekun submitted emphatically that, the application of the Applicants is in relation to a pre-election matter. He referred to the provisions of Section 285(11) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017. That by virtue of the said provisions, an appeal from the decision of a Court in a pre-election matter shall not only be filed within fourteen days from the date of delivery of the judgement being appealed against, the said appeal shall be heard and disposed off within sixty days from the date of filing of the appeal. However, in the instant matter, the appeal of this Court being sought to be appealed against was delivered on 14th of May, 2019. It is quite patent that the present application of the Applicants was filed too late on the 22nd of October, 2019, that is, it was filed clearly outside the period of sixty days within which the purported appeal could be heard and determined. The learned Counsel contended that this Court lacks the jurisdiction to hear and determine the Applicants’ application. He therefore urged upon this Court to decline jurisdiction and strike out the said application with punitive costs against the Applicants for wasting precious judicial time.

The learned Counsel for the 2nd Respondent, Oluwayemi Olurotimi aligned with the position of the Applicants’ Counsel. He opined that this Court possesses jurisdiction to adjudicate upon the instant application and urged upon us to determine same on its merits.

RESOLUTION
The 3rd-6th Respondents were absent from Court and also had no legal representations, but we were satisfied that notices of hearing were respectively served on them for the day’s proceedings.

Before proceeding further, it is pertinent at this juncture to consider the subject-matter of the instant application. As stated above, this can be determined by the examination of the reliefs sought by the Applicants “ex facie” the application as well as from the facts averred in its supporting affidavit. The main relief sought by the Applicants in the application, verbatim, is for:
“AN ORDER OF this Honourable Court granting Leave to appeal to the Applicants/Persons seeking leave to appeal as interested parties against the judgement of the Court of Appeal, Akure Judicial Division in Appeal No.: CA/AK/203/2019: MR. GBEGUDU OLOLADE JAMES v. SINA AKINWUMI EMMANUEL & 4 ORS. delivered on 19/7/2019 by their Lordships HON. JUSTICE PATRICIA AJUMA MAHMOUD; HON. JUSTICE MOHAMMED AMBI-USI DANJUMA JCA; AND HON. JUSTICE RIDWAN MAIWADA ABDULLAHI JCA.”

The grounds upon which the application is predicated have been set out earlier on above in this ruling.

The relevant paragraphs of the affidavit in support of the application that are indicative of the subject-matter of the application are “inter alia” paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 20, 21, 23, 24, 27, 28 and 34. For ease of reference and good understanding the said paragraphs are hereunder reproduced verbatim as follows:
I,OSULOWO TIBETAN, Male, Christian, Nigerian Citizen of No. 11, Okerisha Street Ode-Aye, Okitipupa, Okitipupa Local Government Area of Ondo State, Candidate of the Peoples Democratic Party who contested the Ondo State House of Assembly Election, Nigeria do hereby make this Oath and State as follows:
1. That I am the 2nd Applicant/Person seeking leave to appeal as interested party in this motion and the deponent herein.
2. That the 1st Applicant/Person seeking leave to appeal as interested parties herein is a registered political party in Nigeria capable of suing and being sued and which said party also has the competence to sponsor candidates at elections and indeed sponsored me in the election to the Ondo State House of Assembly, Okitipupa Constituency II which is the subject of the judgement for which leave is required to appeal to the Supreme Court by the Applicants/Persons seeking leave to appeal as interested parties.
3. That I have the consent of the 1st Applicant/Person seeking leave to appeal as interested party to depose to this affidavit.
4. That I contested the Election into the Ondo State House of Assembly Constituency II Okitipupa Local Government Area of Ondo State.

That I was a candidate of the Peoples Democratic Party, the 1st Applicant/Person seeking leave to appeal as interested party at the Ondo State House of Assembly Election in Constituency II in Okitipupa Local Government Area of Ondo State.
6. That the said Election took place on the 9th of March, 2019.
7. That I know as a fact that the Applicants/Persons seeking leave to appeal as interested parties herein were not aware that Mr. Gbegudu Ololade James (1st Respondent) had instituted an action against the other Respondents (2nd – 6th Respondents) which culminated into the appeal which is the subject of this application.
8. That I know as a fact that the Applicants/Persons seeking leave to appeal as interested parties herein were also not aware that the instituted action proceeded to the Court of Appeal in Akure Judicial Division, Ondo State.
9. That it was in the PUNCH NEWSPAPER dated 4th day of September, 2019 that I discovered that an action had been instituted in relation to the House of Assembly Election conducted in Constituency II Okitipupa Local Government Area of Ondo State. A certified True Copy of the said Punch Newspaper dated 4th day of September, 2019 is herewith attached and marked EXHIBIT A.
10. That it was in the said Newspaper that I discovered that Sina Akinwumi Emmanuel (2nd Respondent) representing Okitipupa Constituency II at the Ondo State House of Assembly had been sacked and the Court of Appeal had nullified the election of Sina Akinwumi Emmanuel (2nd Respondent). A copy of the said judgment of this Division of the Court of Appeal is herewith attached and marked as EXHIBIT B.
…
20. That a copy of the judgment of the Court of Appeal which I need the leave of this Honourable Court to appeal against is herewith attached and marked EXHIBIT B.
21. That the Applicants/Persons seeking leave to appeal as interested parties’ Proposed Notice of Appeal is herewith attached and marked as EXHIBIT G.
23. That it is in the interest of justice to grant leave to the Applicants/Persons seeking leave to appeal as interested parties to appeal so that we could be given the opportunity to be heard regarding our rights to represent Okitipupa Constituency II of the Ondo State House of Assembly.
24. That the Applicants/Persons seeking leave to appeal as interested parties’ rights and interest have been affected by the judgment of the Court of Appeal given on 19/7/2019 in this case.
…
27. That the filing and grant of this application is necessary so that my grievances and all issues relating to this appeal can be heard by the Supreme Court.
28. That I know as a fact that the leave of this Honourable Court is required before the Applicants/Persons seeking leave to appeal as interested parties can appeal to the Supreme Court as “Persons Interested” having not been original parties in the appeal.
…
34. That I know as a fact that the Applicants/Persons seeking leave to appeal as interested parties’ rights have been affected by the judgment of this Honourable Court for which leave is required to appeal.

From the facts averred in the above reproduced paragraphs of the supporting affidavit of the Applicants through the 2nd Applicant, there is no question in my mind and indeed as earlier on stated in this ruling, the parties, most importantly the Applicants, are equally “ad idem”, that the subject of this application is a pre-election matter.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It is the general principle of law that only the parties to civil proceedings, of which election and election-related matters are a specie, in the Court of Appeal have a right of appeal to the Supreme Court. However, by the provisions of Section 233(5) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, where an interested party, that is, any other person having an interest in the matter, wishes to appeal against the decision of the Court of Appeal to the Supreme Court, that person is obliged to obtain the leave of either the Court of Appeal or the Supreme Court prior to the hearing of the appeal.
Further to the provision of Section 233 of the 1999 Constitution (Supra) and as rightly alluded to by the learned Counsel for the 1st Respondent, Section 285(11) of the 1999 Constitution (Fourth Alteration, No. 21) (Supra) provides that, an appeal from a decision in a pre-election matter shall be filed within fourteen days from the date of the delivery of the judgment appealed against. In addition, Section 285(12) provides that an appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within sixty days from the date of filing of the appeal.
The judgment of this Court, sought to be appealed against annexed to the instant application as Exhibit “B” was delivered on the 19th of July, 2019. The Applicants’ application for leave to appeal against the said judgment was filed on the 15th of October, 2019. By the combined effect of Section 285(11) and (12), an appeal against the judgment of this Court being sought to be appealed against delivered on 19th July, 2019 by arithmetical computation must be filed and determined within seventy-four days from the delivery of the said judgment. The opinion of the learned Counsel for the Applicants that, time does not run against applicants in the place of the Applicants herein just because they are interested parties and irrespective of the fact that the subject of the application is an election related matter, is a legal fallacy. On the contrary, the subject of the application being a pre-election matter, is “sui generis” and it is now strongly settled that, in election and election related matters, time is of essence. There is nothing novel about the instant application as being touted by the learned counsel for the Applicant. Since the subject of the instant application is a pre-election matter, time is therefore of essence as unambiguously provided by the 1999 Constitution and the procedure by which the Applicants are bound in the given circumstances of their instant matter is not governed by the ordinary civil rules of proceedings. See the cases of: (1) Mark v. Abubakar (2009) 2 NWLR (Pt. 1124) p. 79 at pgs. 106 – 107; (2) Jibril v. Jibril & Ors. (2010) LPELR-3554 (CA); (3) Oke & Anor. v. Mimiko & Ors. (2013) LPELR-20645 (SC) and (4) Wambai v. Donatus & Ors. (2014) 14 NWLR (Pt. 1427) p. 223. It is crystal clear that the application of the Applicants for leave to appeal was filed eighty-eight days after the delivery of the judgment being sought to be appealed against. As I stated hereinbefore, the Applicants had fourteen days to file their proposed notice of appeal and thereafter the appeal must be determined within sixty days. This is to say, altogether, the times for the filing and determination of the appeal have slipped away.
Sequel to the above elucidations, and as rightly contended by the learned Counsel for the 1st Respondent, it is quite patent that, the second condition precedent to the assumption of jurisdiction by this Court over the instant application as laid down in the “locus classicus” case of: Madukolu v. Nkemdilim (Supra) already set out above, has not been fulfilled. That is, the instant application not having been brought timeously in deference to the provisions of Section 285 (11) and (12) of the 1999 Constitution (Fourth Alteration, No. 21) (Supra), this Court has been robbed of its requisite jurisdiction to adjudicate thereupon.
Concomitantly, the instant application of the Applicants is hereby struck out for want of jurisdiction of this Court to entertain same.
The sum of One Hundred Thousand Naira costs is hereby awarded in favour of the 1st Respondent and against the Applicants.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: Having read the lead Ruling delivered by my learned brother, Oyebisi Folayemi Omoleye, JCA, I am in agreement with the reasoning and conclusion arrived therein with nothing to add thereto.

I hereby struck out the application for want of jurisdiction as reflected in the lead Ruling. Also abide by the consequential order as to costs.

PATRICIA AJUMA MAHMOUD, J.C.A.: I had the privilege to read in advance the ruling just delivered by my learned brother, OYEBISI F. OMOLEYE, JCA. I am in complete agreement with the reasoning and conclusions reached therein and have nothing more to add.
I agree that the application lacks merit and it is therefore accordingly struck out.
I also abide by the order for cost made in the lead ruling.

Appearances:

O. Ayenakin with him, F. O. Kolade-Lawal For Appellant(s)

I. Olanipekun – for the 1st Respondent

Oluwayemisi Olurotimi – for the 2nd Respondent For Respondent(s)