CHINEDU LUKE OFODILE v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2019)

CHINEDU LUKE OFODILE v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2019)LCN/13796(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of October, 2019

CA/E/PRE/580/2019

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

RATIO

PLEADINGS: GROUNDS OF APPEAL

It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. Grounds of appeal are not formulated out of nowhere. They must be in firma terra, namely arise from the judgment. However, meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. See SARAKI & ANOR V KOTOYE (1992) LPELR- 3016 (SC). PER ABUBAKAR SADIQ UMAR, J.C.A.

MODE OF COMMENCEMENT OF AN ACTION IN COURT

On the modes of commencement of actions, this Court, Per Ogunwumiju JCA in DAWLANG V C.O.P ENUGU STATE & ANOR (2017) LPELR 43449 (CA) held thus:
“On the mode of commencement as submitted by the Respondents’ counsel, Order 3 of the Federal High Court Rules provides for form and procedures relating to commencement of action in the Federal High Court. Rules 1, 2 & 6 of the said Order provide as follows: FORM OF COMMENCEMENT OF ACTION. (1) Subject to the provisions of any enactment, civil proceedings may be begun by writ, originating summons, originating motion or petition or by any other method required by other rules of Court governing a particular subject matter. 2 – PROCEEDINGS WHICH MUST BE BEGUN BY WRIT. Subject to the provisions of these Rules or any applicable law requiring any proceeding to be begun otherwise than by writ, a writ of summons shall be the form of commencing all proceedings. (a) where a plaintiff claims; (i) any relief or remedy for any civil wrong, or (ii) damages for breach of duty, whether contractual, statutory or otherwise, or (iii) damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or property. (b) where the claim is based on or includes an allegation of fraud, or (c) where an interested person claims a declaration. 6 – PROCEEDINGS WHICH MAY BE BEGUN BY ORIGINATING SUMMONS. Any person claiming to be interested under a deed, will enactment or other written instrument may apply by originating summons for the determination of any question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed. The procedure of originating summons is meant for actions between parties who are substantially agreed on the facts of the case but merely want a directive of the Court on a certain point of law, mere construction of documents etc. There is no need for pleadings. Where there are substantial disputed facts, the proper mode of commencing such an action is by writ of summons so that pleadings can be filed. Thus, as a matter of procedural requirement, it is improper to commence proceedings by originating summons, where the facts are or are likely to be contentious and disputed..” (Underlining mine for emphasis)
After a fastidious study of the entire gamut of affidavit evidence and the exhibits attached to thereto, I am of the opinion that the area the parties vehemently joined issues was on the Appellant?s voluntary withdrawal of his candidature to warrant his substitution. The Appellant in paragraphs 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 37, 38, 39, 40, 41 of the Affidavit in support of the Amended Originating Summons at pages 375 -380 of Vol.1 of the Record of Appeal and also in his various further affidavits repeatedly denied the fact that he relinquished his candidature to the 2nd Appellant or withdrew from the general election by virtue of the Notice of Withdrawal ascribed to him. PER ABUBAKAR SADIQ UMAR, J.C.A.

WHETHER ORIGINATING SUMMONS IS AN APT MODE FOR DETERMINING ISSUES OF ALLEGATIONS OF FRAUD THAT ARE SUBSTANTIALLY DISPUTED

The law is trite that Originating Summons is not an apt mode for determining issues of allegations of fraud that are substantially disputed. See MUSA V TOYIN & ORS (2017) LPELR 43615 (CA); ECOBANK V BUKAS KASMAL INTL. LTD. & ORS (2017) 43544 (CA).
Due to the restricted and confined purview of originating summons, where it is unclear to counsel whether or not to commence an action by a writ of summons or by originating summons, it is only advisable and good practice to adopt a writ of summons. I cannot but agree with the learned trial judge that the suit was commenced vide a wrong mode.
The counsel to the Appellant also submitted that Court below could have called for the filing of pleadings by the parties when it became crystal that the issues raised by the Appellant could not be determined by way of Originating Summons. He also submitted that the Court treated the case before it with levity, failing to accord it the full compliments of a pre-election matter of which time is of the essence. The records of appeal transmitted to this Honourable Court bears witness that the case was heard on the 17th of June 2019 and was initially adjourned for judgment to be delivered on the 18th of July 2019 before the said judgment was eventually delivered on the 31st July 2019. After having held at pages 987 to 988 of Vol. 2 of the Record of appeal that the matter could not be decided by way of originating summons, the learned trial judge however was seised of the proper principle of law applicable in situations where it becomes evident that an action commenced by way of originating summons ought to have been commenced by way of Writ. The learned trial judge however in his judgment taking into account of the reasons why it was practically impossible to have ordered the filing of pleadings at the particular stage of the proceedings held at page 990 of Vol.1 of the record of appeal as follows:
?. It is because in normal circumstances, where the Court finds originating summons as improper mode, the Court ordinarily should order pleadings and proceed to take evidence.
The appropriate order to make here in the instant appeal will be to remit the case back to the Court below for hearing of the pleadings.
With respect those authorities are quite instructive. But as I did indicate earlier, this case is a classified as sui generis. It is peculiar as per (sic) election dispute and is time bound. The suit was filed on 14th February 2019 and must be determined by the trial Court within 6 months. The 6 months is billed to lapse about 14th August 2019 which is two weeks away.
In the peculiar circumstances, it is my firm view that the Court has no option than to resort to striking out as the suit cannot be conducted on pleadings yet to be filed within 2 weeks. Judicial notice is to be taken of the fact that Annual vacation for High Court of Anambra State starts tomorrow being 1st of August 2019. Even at that, there is no magic the Court can do to conclude pleadings, hear and determine within 2 weeks. It is indeed not realizable? (Underlining mine for emphasis).
Even if the Court had 26 days to or two weeks to order pleadings as submitted by learned counsel to the Appellant in paragraph 5.2 of his brief, I cannot but agree with the trial Court on the reasons why an order that pleadings be filed cannot be made. It is not by accident that 180 days was allotted for the hearing and determination of pre-election matters. PER ABUBAKAR SADIQ UMAR, J.C.A.

THE NATURE OF AN APPEAL

Where a suit is held to be incompetent by the trial Court, this Court also lacks the vires to adjudicate such an incompetent process. An appeal is a continuation of the case at the trial Court and you cannot put something on nothing and expect it to stand, seeUAC V. MACFOY (1962) 3 All E.R. 1169 p.c. 354. I am fortified in this by the decision in EFET V. INEC & ORS (2011) LPELR- 8109 SC thus;
“An appeal does not lie on an incompetent suit which has been struck out as the subject matter of the appeal is no longer subsisting at the lower Court and the Appellate Court lacked jurisdiction to determine that which is non-existent. In other words, a suit struck out is no longer alive and upon which no appeal can lie and be heard. To do otherwise, would amount to an exercise in futility and the Court does not act in vain. I am fortified by this Court’s in ANAMBRA STATE vs N.I.W.A (2004) 3 NWLR (pt 861) 640.
This is so because an appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action. An appeal should be a complaint against the decision of a retrial Court. Thus in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See: –
(i) N.D.I C vs S.B.N (2003) 1 NWLR (pt 801) 311;
(D) Oredoyin V. Arowolo (1989) 4 NWLR (pt. 114) 172;
(iii) Babalola v. State (1989) 4 NWLR (pt 115) 264; and
(iv) Jumbo V. Bryanko Int. Ltd (1995) 6 NWLR (pt. 403) 545 at 547.” per Muntaka-Coomassie, DSC. (see also I.M.N.L V. PEGOFOR INDUSTRIES LTD. (2005) 15 NWLR (Pt. 947) 1, EDEBIRI V. EDEBIRI (1997) 4 NWLR (Pt. 498) 165 and PLATEAU STATE GOVT. V. CREST HOTEL & GARDEN LTD (2012) LPELR-9794 (CA). PER ABUBAKAR SADIQ UMAR, J.C.A.

Between

CHINEDU LUKE OFODILE Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. BARR. DOUGLAS NWACHUKWU EGBUNA
3. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Anambra State, Awka Judicial Division delivered by O.M. Anyachebelu J. on the 31st day of July, 2019.

BRIEF FACTS OF THE CASE
By an Amended Originating Summons dated the 20th May 2019 and filed on the same date, the Appellant amongst other prayers (see pages 371 to 373 of Vol. 1 of the Record of Appeal) prayed the Court below for:
?A DECLARATION that having regards to a community reading of the provisions of Sections 31(1) & (3), 33, 34 and 35 of the Electoral Act 2010 (as amended), the 3rd defendant having submitted the name of the plaintiff as her candidate for the Onitsha North 1 Constituency seat in the Anambra State House of Assembly for 2019 General Elections to the 1st Defendant, cannot further interfere with the candidature of the plaintiff in any manner whatsoever including but not limited to substituting the name from the list of candidates already submitted to the 1st defendant without any order of Court particularly as the plaintiff has not given any valid notice in writing duly signed by him.?

The case of the Appellant as gleaned from his affidavit (see pages 375 ? 380 of Vol. 1 of the Record of Appeal) in support of the Amended Originating Summons is that he contested the primary election of his party, the People?s Democratic Party (PDP), the 3rd Respondent in the instant appeal held on 4th October 2018 and having pooled the highest majority votes he was successfully nominated as the candidate of the 3rd Respondent for the Onitsha North 1 Constituency of Anambra State House of Assembly. It is also the case of the Appellant that as at the time of the primary elections, the 2nd Respondent was a stakeholder, chieftain and a card carrying member of the All Progressives Grand Alliance (APGA) and not that of the 3rd Respondent and that the 2nd Appellant did not contest the primary election for Onitsha North Constituency 1 of the Anambra State House of Assembly neither was he screened by the Screening Committee.

?He stated that vide a letter dated 22nd October 2010 signed by the 3rd Respondent?s National Chairman and Secretary, his name was submitted to the 1st Respondent and that on the 9th November 2018 when the

names and particulars of all candidates in all the political parties in Nigeria running for all positions in the 2019 General election was published by the 1st Respondent, his name was published as well as other candidates to authenticate his candidacy. The Appellant deposed further that on the 26th of November 2018, he started to hear rumours that he transferred his candidacy to another person on the ground that he was no longer interested in contesting for the 2019 general elections for Anambra State House of Assembly and premised on this, he immediately wrote a petition dated 26th November 2018 to the 1st Respondent notifying her of the purported and planned fraudulent act of the 3rd Respondent and also debunking any speculations that he intend to relinquish his candidacy to any person or political party.

?The Appellant further deposed that vide a letter dated 7th December 2018, he also wrote the 3rd Respondent through his solicitors intimating her to dispel any rumour or information that he had the intention of relinquishing his candidacy but that on the 31st January 2019, the 1st Respondent instead of publishing his name as the candidate of the 3rd

Respondent, published the name of the 2nd Respondent as candidate of the 3rd Respondent for Onitsha North 1 State Constituency. As a result of the information derived from the sources of the 1st Respondent, the Appellant then became seized of the fact that the 3rd Respondent effected the substitution based on a letter of withdrawal and replacement signed by the Chairman and Secretary of the 3rd Respondent dated the 30th November 2018 (Exhibit L1, page 419 of Vol. 1 of the Record of Appeal) and another letter titled ?Re: Nomination as PDP Candidate for Onitsha North 1 State Constituency: Notice of Withdrawal of my candidature also dated 30/11/2018 (Exhibit M, page 421 of Vol. 1 of the Record of Appeal).

Predicated on the above, the Appellant filed the action which is the subject of the instant appeal in the Court below seeking the determination of the questions raised in the Amended Originating Summons and seeking the grant of the reliefs set forth therein. (See pages 371 to 373 of Vol.1 of the Record of Appeal).

The meat of the case of the 1st, 2nd and 3rd Respondents as gleaned from their counter Affidavits at pages 466 to 469, 614 to 623 and

777 to 787 respectively of Vol. 2 of the Record of Appeal is that although the Appellant was the nominated candidate of the 3rd Respondent for the said general elections, He voluntarily withdrew his candidature vide a Notice of Withdrawal voluntarily signed by him and this event necessitated the substitution of his name with that of the 2nd Appellant whom at the material time had duly resigned his membership of the All Progressive Grand Alliance (APGA) and was registered as a member of the 3rd Defendant at his Ward 6, Onitsha North Local Government of Anambra State.

?In the Appellant?s further affidavit to the Originating summons at pages 740 to 742 of Vol.2 of the Record of Appeal, the Further Affidavit in response to the 1st Defendant?s Counter affidavit (see pages 910 to 912 of Vol.2 of the Record of Appeal), the Further Affidavit in response to the 2nd Defendant?s Counter affidavit (see pages 939 to 943 of Vol.2 of the Record of Appeal) and in the Further Affidavit in response to the 3rd Defendant?s Counter affidavit (pages 925 to 928 of Vol.2 of the Record of Appeal), the Appellant amongst the other facts deposed therein,

denied ever signing the said letter titled ?Re: Nomination as PDP Candidate for Onitsha North 1 State Constituency: Notice of Withdrawal of my candidature also dated 30/11/2018 (Exhibit M, page 421 of Vol. 1 of the Record of Appeal).

The Court below delivered its judgment on the 31st July 2019 wherein the suit of the Appellant was dismissed for being statute barred and also on the ground that considering the circumstances of the action, the action could not be properly determined by way of Originating Summons.

Miffed by the decision of the Court below, the Appellant invoked the Appellate jurisdiction of this Honourable Court vide a Notice of Appeal dated 8th August 2019 and filed on the same date. The said Notice of appeal at pages 1000 to 1003 of Vol.2 of the Record of Appeal contains four grounds of appeal to wit:
?GROUND ONE?
The learned trial judge erred in law when he held that the cause of action of the Appellant is statute barred by virtue of Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
?GROUND TWO?
The learned trial judge erred in law when he

dismissed the suit on the ground that it was wrongly commenced by way of Originating Summons.
?GROUND THREE?
The learned trial judge erred in law when he determined the suit in limine without going further to determine issues between the parties.
?GROUND FOUR?
The decision is against the weight of evidence.

In line with the Rules of this Honourable Court, parties filed and exchanged their respective Briefs. The Appellant? brief of argument is dated 30th August 2019 and filed on the same date. The Appellant? Reply Brief is dated 12th September 2019 and filed on the same date. The Appellant?s Brief was settled by GUDAJI HAMZA AHMED ESQ. while the Reply Brief was settled by N.D. UDEGBUNAM ESQ.

GUDAJI HAMZA AHMED ESQ. formulated two issues for the determination of this appeal to wit:
?1. Whether the cause of action of the Appellant is statute barred?. (Ground 1 of the Notice of Appeal.?
2. Whether the trial Court could lawfully have determined this action based on the Amended Originating Summons before it, and by failing to do so, whether this Court ought to do

so by invoking its powers under Section 16 of the Court of Appeal Act.? (Grounds 2 & 3 of the Notice of Appeal).?

The 1st Respondent?s brief of argument is dated 10th September 2019 and filed on the same date. The said brief was settled by EKENE E. UDE, ESQ. who formulated two issues for the determination of this appeal to wit:
?1. Whether the cause of action of the Appellant is statute barred.
2. Whether the trial Court was right in its decision that the suit was wrongly commenced by way of origination summons and having not determined the suit on merit, whether this Court ought to invoke its powers under Section 16 of the Court of Appeal Act to determine substantive suit. (Grounds 2 & 3 of the Notice of Appeal).

The 2nd Respondent?s brief of argument is dated 9th September 2019 and filed on the 10th September 2019. The said brief was settled by OBUMNEME EZEONU, ESQ. who formulated three issues for the determination of this appeal to wit:
?1. Whether having regard to Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the learned trial Judge was right

in holding that the Appellant?s cause of action is statute-barred (Ground 1)
2. Having regard to the entire circumstance of the case, whether the learned trial Judge rightly dismissed the Appellant?s suit same having been found to be wrongly commenced by way of originating summons. (Ground 2)
3. Whether the learned trial judge was right in not determining the Appellant?s substantive suit on the merit (Ground 3).

The 3rd Respondent?s brief of argument is dated 10th September 2019 and filed on the same date. The said brief was settled by DR. C. B. ANYINGBO, FICMC, MCArb who also formulated two issues for the determination of this appeal to wit:
?1. Whether the Appellant?s cause of action is statute-bared. (Ground of Appeal No.1)
2. Whether having found that the Appellant?s suit was wrongly commenced by way of Originating Summons, the learned trial judge rightly dismissed the Appellant?s suit and was right in not determining the substantive suit (Ground of Appeal No. 2).?

PRELIMINARY OBJECTION
Before going into the arguments and submissions of counsel as epitomized in

their respective briefs, it is important to state at this stage that the 3rd Respondent?s counsel in his brief has by way of preliminary objection challenged Ground 2 of the Appellant?s grounds of appeal and also the issue 2 distilled from the said ground. The grounds upon which the preliminary objection is predicated is contained in page 8, paragraph 4.01 of the 3rd Respondent?s Brief of Argument. The grounds of the preliminary objection are:
?a. Ground of Appeal No.2 of the Appellant?s Grounds of Appeal is incompetent and liable to be struck out in that it did not arise from the ratio decidendi of the decision of the appealed against.
b. Issue 2 of the Appellant?s issues for determination is incompetent and liable to be struck out in that it was distilled from the Appellant?s incompetent Ground 2 and contain argument on both the incompetent Ground 2 and competent Ground 3 of the Grounds of Appeal.?

ARGUMENTS AND SUBMISSIONS ON THE PRELIMINARY OBJECTION
Learned counsel to the 3rd Respondent submitted that Ground 2 of the Appellant?s Grounds of Appeal does not arise from the ratio

decidendi of the decision of the Court below appeal against. He submitted further that nowhere in the entire judgment of the Court below was it held that the suit of the Appellant was dismissed on the ground that it was wrongly commenced by way of originating summons. It is his contention that the decision of the Court below is on two fronts. The first of which is that the learned trial judge found that the suit, owing to its hostile nature and allegation of criminality was wrongly commenced by Originating Summons. He continued by submitting that the major reason why the Court below struck out the suit was because it was statute barred and the Court did not either expressly or impliedly strike same out on the ground that it was wrongly commenced by way of Originating Summons. On the need for a ground of appeal to emanate from the ratio decidendi of the decision appealed against, He referred this Court to GOVERNOR, IMO STATE V AMUZI (2019) 10 NWLR (PT. 1680) 331 at 334.

Counsel urged the Court to strike out the said ground of appeal on the aforestated reason. In the same vein, He urged this Court to strike out issue 2 of the Appellant?s issues for

determination same having been distilled from the alleged incompetent ground of appeal.

In reply to the submissions and arguments of the learned counsel to the 3rd Respondent on the competency or otherwise of ground 2 of the Grounds of Appeal, learned counsel to the Appellant submitted that the trial judge dismissed the suit before him based on a combination of factors, ranging from improper mode of commencement to the suit being statute barred. Counsel submitted further that assuming but without conceding that counsel to the 3rd Respondent was right in his submissions, Ground 2 of the Notice of Appeal is still valid because it is a meaningful and understandable ground of appeal which can easily be related to the judgment of the lower Court and may only be faulted for inelegance. It is his contention that the Respondents have not been misled as to the complaint encapsulated in the said ground and they all have in their respective briefs responded to the issue distilled from the said ground. He referred to KOYA V UBA (1997) 1 NWLR 481 at 251. He therefore urged this Honourable Court to disregard and dismiss the preliminary objection of the 3rd Respondent

and treat the appeal on the merit.

RESOLUTION OF THE PRELIMINARY OBJECTION
It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. Grounds of appeal are not formulated out of nowhere. They must be in firma terra, namely arise from the judgment. However, meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. See SARAKI & ANOR V KOTOYE (1992) LPELR- 3016 (SC). I have read with due care the decision of the Court below vis–vis the grounds of appeal as contained in the Appellant?s Notice of Appeal. For ease of reference, permit to reproduce the relevant excerpts of the decision of the Court below in this regard. The learned trial judge held at page 998 of Vol.2 of the record of appeal as follows:
?I have held that this was improper having been begun by an improper mode. But more particularly, I have held that the suit is statute

barred. Before concluding it is pertinent to stress that given the finding that the suit is statute barred, it cuts across the mode of commencement. That is to say no matter how the suit is commenced, if it is statute barred, it remains statute barred.
Having thus considered this suit and held as already indicated and particularly on the basis of being statute barred. I hold that the suit ought to be dismissed.?

I agree with learned counsel to the Appellant that the learned trial judge dismissed the suit before him on a combination of factors, ranging from improper mode of commencement to the suit being statute barred. I am of the opinion that the usage of the word ?particularly? by the learned trial judge means that statute of limitation is not the only basis of dismissal.

Without dissipating much judicial energy on this, I hereby dismiss the 3rd Respondent?s preliminary objection and I shall therefore proceed with the determination of the appeal on the merit.

APPELLANT?S ARGUMENTS AND SUBMISSIONS
On the first issue distilled by learned counsel to the Appellant, counsel submitted that the learned

trial judge righty found and held that the cause of action of the Appellant arose on the 31st of January, 2019 i.e. the day the 1st Respondent released the final list of candidates, containing the name of the 2nd Respondent as the candidate of the 3rd Respondent for the Onitsha North 1 State Constituency instead of the name of the Appellant. Counsel submitted further that the learned trial judge also rightly held that the action which is the subject of the appeal was commenced on the 14th of February 2019 but that the learned trial judge erred in the computation of time as provided under Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) when he held that time stipulated for the commencement of the Appellant?s action began to run on the 31st of January 2019 and not the 1st of February 2019 and that by virtue of this erroneous belief, held that the time expired on the 13th February 2019 and not on the 14th February 2019. Counsel submitted further that in arriving at this decision, the learned trial judge wrongly relied on the case of OKECHUKWU V INEC (2014) 17 NWLR PT. 1436, P.255 cited by the 2nd and 3rd

Respondent?s in the interpretation of Section 285(9) of the Constitution. It is the submission of counsel that the case (supra) is inapplicable to the facts of the instant appeal as there are sharp and obvious differences between both. In a bid to distinguishing same, learned counsel quoted extensively from the decision of the apex Court in the said case and submitted that the apex Court in case (supra) was not interpreting the provisions of Section 285(9) of the Constitution but in the interpretation of Paragraph 6 of the Practice Direction, Elections Appeal to the Supreme Court. Counsel also submitted that the case of OKECHUKWU V INEC (supra) was decided in the year 2014 while Section 285(9) came into force in the year 2017, three years after the case of OKECHUKWU V INEC was decided.

Learned counsel to the Appellant in paragraph 4.1.2 of his brief reproduced in verbatim the provisions of 285(9) of the Constitution and submitted that the words used in the section are unambiguous to the effect that the 14 days envisaged therein excludes the date of the occurrence of the event, or decision or action complained of in this suit.

He argued that by virtue of Section 318 (4) of the Constitution (supra) which provides that the interpretation Act shall apply for the purpose of interpreting the provisions of the Constitution and that by necessary implication, the said section has imported Section 15(2) (a) of the Interpretation Act in the Construction of Section 285(9). The crux of the Appellant?s point here is that time begins to run from the next day after the date of the cause of action and that from the facts of this case, excluding the 31st of January in computation of time is in tandem with Section 318 (4) of the Constitution and Section 15(2) (a) of the Interpretation Act means that 14 days stared counting on the 1st of February 2019 and lasted till the 14th of February 2019 which was the day the action was filed.

In his final analysis on this issue, he submitted that the suit was filed within the stipulated period and was not statute barred. He therefore urged this Honourable Court to set aside the decision of the Court below to the contrary.

On the second issue which dwells on the propriety of commencing the suit vide Originating summons and whether the Court could have dealt with

the issues raised therein, counsel to the Appellant submitted that there are sufficient undisputed relevant facts in the suit between the parties as per the affidavits and counter affidavits filed before the Court to enable the Court determine the case vide Originating summons. He submitted that going by the questions raised for determination and reliefs sought by the Appellant, it was erroneous for the Court below to hold that the crux of the Appellant?s action was the authorship or otherwise of the substitution and replacement documents in Exhibits L1 and M. Relying on the case of OKOROCHA V PDP & ORS (2014) LPELR-22058 (SC), he argued that the law is well settled that it is the relief or the claim in the originating process that determines the jurisdiction of the Court.

It is also the submission of counsel that assuming but without conceding that the suit was commenced vide the wrong mode, the Court had sufficient time to order the filling of pleadings by the parties and determine the case based on same or to order oral evidence. He submitted that the suit was heard on the 17th June 2019 and then adjourned for judgment on the 18th July 2019

and that between this period, it is expected that the Court ought to have wasted no time in knowing and determining that the action was wrongly commenced by way of Originating Summons in view of the sensitive nature of the case. Counsel submitted further that the Court was tardy in its determination and did not deliver the judgment on the scheduled date, waiting till the 31st July 2019 only to pronounce that the action could not be heard and determined based on Originating Summons procedure. It is also his submission that the pace and slowness with which the Court arrived at its position is contrary to the spirit and intendment of the whole Section 285 of the Constitution which requires that pre-election matters must be given accelerated and expeditious hearing. He submitted further that from the 18th July 2019 when judgment was originally reserved, the Court had at least 26 days to order pleadings, hear and determine the case based on same and that whereas from the 31st of July 2019 the Court below still had 13 days to be able to order pleadings and determine the case based on same. He referred this Honourable Court to the authorities of

HASSAN V ALIYU (2010) 17 NWLR (PT. 1223) 547 S.C, OKECHUKWU V INEC (supra). Counsel submitted that the failure of the Court below in this regard occasioned a miscarriage of justice and infringed on the Appellant?s right to fair hearing. He submitted further that the annual vacation of the Court which is an administrative creation and at best statutory, must give way to the overriding and supreme effects of the constitution which requires that pre-election matter be given timeous and expedient consideration within 180 days. He referred this Honourable Court to the case of LAU V PDP (2018) NWLR PG. 60 @ 121 PARAS. C-H and argued that in a pre-election matter, the trial Court being the Court of first instance ought to determine the merits of the case regardless of its position of any preliminary issue.

On the whole, relying on the case ofINAKOJU V ADELEKE (2007) 4 NWLR (PT. 1025) 42, he urged this Honourable Court to invoke its powers under Section 15 of the Court of Appeal Act to determine the case of the Appellant since there is available evidence on printed records which will not require the calling of oral or any additional evidence.

RESPONDENTS? ARGUMENTS AND SUBMISSIONS
The submissions and arguments of the Respondents are to a very large extent similar. It is in the light of this that all their submissions shall be taken together with particular references if the need arises.

On whether the action of the Appellant was statute barred by virtue of Section 285(9) of the Constitution (supra), Counsel to the 1st, 2nd and 3rd Respondents in their respective briefs all submitted relying heavily on the decision of the Apex Court in the case of OKECHUKWU V INEC (supra) that learned trial judge was right in holding that the cause of action of the Appellant is statute barred having been commenced 15 days from the date of the decision, action or event complained of by the Appellant. They are all in agreement that the 31st January 2019 which was the date the Appellant became seised of his purported unlawful substitution as admitted by him was the date the action began to run and as such by the decision of the Apex Court in OKECHUKWU V INEC (supra), the said date cannot be excluded and as such, the suit having been filed on the 14th February 2019 was filed on the 15th day of the occurrence of the

Appellant?s complaint. It is also their submission on the strength of the said authority, the provisions of Section 15 of the Interpretation Act as cited by the Appellant is inapplicable in election matters.

On the whole, counsel to the 1st, 2nd and 3rd Respondents all urged this Honourable Court to resolve this issue against the Appellant and in favour of the 1st, 2nd and 3rd Respondents.

On the propriety of the mode of commencing the action, counsel to the 1st, 2nd and 3rd Respondents all submitted that the learned trial was right in holding that the Appellant?s suit was wrongly commenced by way of originating summons. Their contentions are premised on the submission that the affidavits evidence of the parties on the essential aspects of this suit being whether the Appellant voluntarily withdrew his candidature to warrant his substitution and allegation of falsification or forgery of the Appellant?s purported notice of withdrawal. It is their respective submissions that this material conflict in the affidavit evidence placed before the Court below made it impossible for the Court to properly determine the action of the Appellant

by way of Originating Summons. It is also the uniform submission of counsel to the Respondents that it is common knowledge that in election matters such as the instant appeal, the parties are almost in all cases not likely to agree on any material fact. On when it is appropriate to utilize Originating Summons, Counsel to the 1st Respondent referred this Court to OLLEY V TUNJI (2013) 10 NWLR (PT 1362) 257, 353 while the 2nd and 3rd Respondents counsel both referred this Court to STANDARD CLEANING SERVICES V THE COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY ILE-IFE (2011) NWLR (PT. 1269) AT 204-205, 213.

Counsel to the 1st, 2nd and 3rd Respondents all submitted that this Honourable Court cannot invoke Section 15 of the Court of Appeal Act 2004 to determine the suit on the merit because of the absence of jurisdiction on the part of the Court below to entertain the matter. On the whole, all the Respondents urged this Court to hold that the Court below was right in dismissing the Appellant?s suit and was right to have not determined the substantive suit.

?Counsel to the Appellant committed pages 5 ? 10 of his Reply Brief to respond to all the

arguments and submissions of the Respondent and urged this Honourable Court discountenance all the arguments and submissions contained in the briefs of the Respondent and allow the appeal.

RESOLUTION
I have painstakingly read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered. However, I consider the issues distilled by the Appellant as apt and germane for the determination of this appeal.
?1. Whether the cause of action of the Appellant is statute barred. (Ground 1 of the Notice of Appeal).
2. Whether the trial Court could lawfully have determined this action based on the Amended Originating Summons before it, and by failing to do so, whether this court ought to do so by invoking its powers under Section 16 of the Court of Appeal Act.? (Grounds 2 & 3 of the Notice of Appeal).?

RESOLUTION OF ISSUE N0. 1
After a close perusal of the entire gamut of

affidavit evidence placed before the Court below and also the briefs of respective parties, it is crystal clear that the parties are not at loggerheads as to when the Appellant?s cause of action was said to have arisen. For ease of reference, the Appellant?s counsel in paragraph 4.1 of his brief agreed that the Court below righty found and held that the cause of action of the Appellant arose on the 31st of January 2019 i.e. the day the 1st Respondent released the final list of candidates containing the name of the 2nd Respondent as the candidate of the 3rd Respondent for Onitsha North 1 State Constituency instead of the name of the Appellant. This same point was conceded to by the 1st, 2nd and 3rd Respondents in their respective briefs (See paragraph 4.2 of the 1st Respondent?s Brief, paragraph 5.06 of the 2nd Respondent? Brief and paragraph 5.06 of the 3rd Respondent? Brief).
It is also not disputed between the parties that the Appellant commenced the action which is the subject of this appeal on the 14th February 2019 (see the Original Originating Summons at pages 2 to 7 of Vol.1 of the Record of Appeal). Having ascertained

the date when the Appellant?s cause of action arose and the date when the action was filed at the Registry of the Court below, I am of the considered opinion that the only area where issues have been vehemently joined is whether by virtue of the interpretation of Section 285(9) of the Constitution, the learned trial judge was right to have included the 31st day of January in his computation of time in reaching the decision that the case of the Appellant was statute barred.
I will therefore not waste much judicial time and energy in trying to interpret Section 285(9) by following the literal word in the unambiguous provisions of the section which provides thus:
Section 285(9)-
?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.?
It has been stated repeatedly in a legion of judicial authorities that election disputes are sui generis and where the legislative intention is to restrict the litigation space, interpretations tending towards the liberal expansive

direction are inappropriate as such will have the tendency of defeating legislative purpose. The position of the Courts taken in several cases have been to exclude computation of time as contained in the Interpretation Act from the operation of time specified in election disputes. See PDP V INEC & ORS (2014) LPELR-23808 (SC) at 26-27.
I do not agree with the submission of counsel to the Appellant that the decision of the Apex Court in OKECHUKWU V INEC (supra) was arrived at by the Court in the interpretation of the Practice Direction, Election Appeal to the Supreme Court. The case of OKECHUKWU V INEC (supra) interpreted Paragraph 6 of the Supreme Court Practice Directions on election appeals concerning the filing of the brief by a respondent, stipulated to be within 5 days of the service of the appellant?s brief. Nevertheless, the Supreme Court categorically stated that not only in Practice Direction, but in the 1999 Constitution as amended and the peculiarity of our Electoral Act, ?Time shall runfrom the day of the act and the day shall not be excluded.? So, whether the 1999 Constitution, the Electoral Act

2010 or the Practice Directions state that an event shall be done ?after, or of or from? in election or election-related matters, the day of event is to be included, not excluded.?
On construction of period of time fixed by statute within which an act is to be done, the Supreme Court in OKECHUKWU V INEC (supra) succinctly stated that:
?Ordinarily, but for the sui generis nature of election matters according to the common construction of the English language, ?within any number of days after an act? is to be understood exclusive of the day of the Act. The modern rule in relation to a period of time fixed by stature within which an act is to be done after a specified event is that the day of the event is to be excluded, the next day is the first day of the stipulated period and the time expires on the last day of the period, counting from the course including the first day. However, because of sui generis nature of election and election related matters in which time is of essence, and the stand of Supreme Court on the interpretation of the Practice Directions vis a vis the interpretation Act, the provisions of

the interpretation on computation of time shall not apply to the requirement of time by the Practice Directions. Time shall run in peculiarity of the Electoral Act, Practice Directions and the 1999 Constitution of the Federal Republic of Nigeria (as amended), from the day of the act and the day shall not be excluded.?
In the instant appeal, as rightly held in the preceding paragraphs that it is not in dispute that the alleged substitution of the Appellant by the 3rd Respondent occurred on the 31st January 2019 and that the action of was filed on the 14th February 2019. Arithmetically, the 14 days stipulated by Section 285(9) of the 1999 Constitution including 31st January, would end on the 13th February, 2019. The suit having been filed on 14th February, 2019 was filed in 15 days? time. It was therefore filed out of time by one day. The law is well settled that when a statute makes provisions, spelling the procedure for doing an act, the door is closed for adopting a different procedure.
?On the whole, I agree with the learned trial judge that the 31st of January which was the date of the alleged wrongful substitution of the Appellant by

the 3rd Respondent cannot be excluded from the computation of the period of limitation. On the strength of the principle stare decisis which eliminates any form of judicial abracadabra, the said Originating Summons remains statute barred thereby depriving the Court the necessary jurisdiction to adjudicate thereon.

RESOLUTION OF ISSUE N0.2
The next issue to be determined is whether the Court below was right in holding that the suit could not be tried and determined vide an Originating Summons procedure. On the modes of commencement of actions, this Court, Per Ogunwumiju JCA in DAWLANG V C.O.P ENUGU STATE & ANOR (2017) LPELR 43449 (CA) held thus:
“On the mode of commencement as submitted by the Respondents’ counsel, Order 3 of the Federal High Court Rules provides for form and procedures relating to commencement of action in the Federal High Court. Rules 1, 2 & 6 of the said Order provide as follows: FORM OF COMMENCEMENT OF ACTION. (1) Subject to the provisions of any enactment, civil proceedings may be begun by writ, originating summons, originating motion or petition or by any other method required by other rules of Court governing a

particular subject matter. 2 – PROCEEDINGS WHICH MUST BE BEGUN BY WRIT. Subject to the provisions of these Rules or any applicable law requiring any proceeding to be begun otherwise than by writ, a writ of summons shall be the form of commencing all proceedings. (a) where a plaintiff claims; (i) any relief or remedy for any civil wrong, or (ii) damages for breach of duty, whether contractual, statutory or otherwise, or (iii) damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or property. (b) where the claim is based on or includes an allegation of fraud, or (c) where an interested person claims a declaration. 6 – PROCEEDINGS WHICH MAY BE BEGUN BY ORIGINATING SUMMONS. Any person claiming to be interested under a deed, will enactment or other written instrument may apply by originating summons for the determination of any question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed. The procedure of originating summons is meant for actions between parties who are substantially agreed on

the facts of the case but merely want a directive of the Court on a certain point of law, mere construction of documents etc. There is no need for pleadings. Where there are substantial disputed facts, the proper mode of commencing such an action is by writ of summons so that pleadings can be filed. Thus, as a matter of procedural requirement, it is improper to commence proceedings by originating summons, where the facts are or are likely to be contentious and disputed..” (Underlining mine for emphasis)
After a fastidious study of the entire gamut of affidavit evidence and the exhibits attached to thereto, I am of the opinion that the area the parties vehemently joined issues was on the Appellant?s voluntary withdrawal of his candidature to warrant his substitution. The Appellant in paragraphs 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 37, 38, 39, 40, 41 of the Affidavit in support of the Amended Originating Summons at pages 375 -380 of Vol.1 of the Record of Appeal and also in his various further affidavits repeatedly denied the fact that he relinquished his candidature to the 2nd Appellant or withdrew from the general election by

virtue of the Notice of Withdrawal ascribed to him. Furtherance to dispelling the assertions of the 1st, 2nd and 3rd Respondents that he indeed signed the letter titled ?Re: Nomination as PDP Candidate for Onitsha North 1 State Constituency: Notice of Withdrawal of my candidature also dated 30/11/2018 (Exhibit M, page 421 of Vol. 1 of the Record of Appeal as contained in their various counter affidavits, the Appellant in paragraph 13 of the further affidavit to the Originating summons at pages 740 to 742 of Vol.2 of the Record of Appeal deposed as follows:
?13. In paragraphs 37, 38, 39, 40 and 41 of my deposition of 14/02/2019, I made reference to Exhibits L1 (Notice of Withdrawal) and M (letter dated 30/11/2018), and I further wish to state with regards these Exhibits as follows:
i. Exhibits L1, was never delivered by me to any person nor was same ever obtained or received by me for signing or for any other purposes.
ii. Exhibit M never emanated from me, nor did I ever deliver or give same to any person or persons.
iii. Further to my deposition that I never signed Exhibits L1 and M, one Mr. RAPHEAL ONWUZULIGBO, ASP (rtd), a

signature expert, has issued a professional report confirming my position, and same shall be annexed to a further affidavit deposed by the expert in support of the Originating Summons.
From the aforestated paragraphs of the Appellant?s further affidavit in support of the Amended Originating Summons, I agree with the learned trial judge that the Appellant from inception appreciated that there was a factual dispute with regards to whether he signed the notice of withdrawal or not. This is further strengthened when the Appellant employed and fronted a forensic expert who filed an affidavit in support of his case, in a bid to show that he did not sign the alleged withdrawal. Premised on the forgoing, I find it extremely difficult to hold that the disputes between the parties could have been eruditely trashed by the Court in the absence of taking evidence. Parties have relied on forensics evidence to establish the authenticity or otherwise of the Appellant?s signature on the said exhibits and the Court cannot decide same by mere comparing the conflicting documents attached to the several affidavits placed before it.

delivered on the 18th of July 2019 before the said judgment was eventually delivered on the 31st July 2019. After having held at pages 987 to 988 of Vol. 2 of the Record of appeal that the matter could not be decided by way of originating summons, the learned trial judge however was seised of the proper principle of law applicable in situations where it becomes evident that an action commenced by way of originating summons ought to have been commenced by way of Writ. The learned trial judge however in his judgment taking into account of the reasons why it was practically impossible to have ordered the filing of pleadings at the particular stage of the proceedings held at page 990 of Vol.1 of the record of appeal as follows:
?. It is because in normal circumstances, where the Court finds originating summons as improper mode, the Court ordinarily should order pleadings and proceed to take evidence.
The appropriate order to make here in the instant appeal will be to remit the case back to the Court below for hearing of the pleadings.
With respect those authorities are quite instructive. But as I did indicate

earlier, this case is a classified as sui generis. It is peculiar as per (sic) election dispute and is time bound. The suit was filed on 14th February 2019 and must be determined by the trial Court within 6 months. The 6 months is billed to lapse about 14th August 2019 which is two weeks away.
In the peculiar circumstances, it is my firm view that the Court has no option than to resort to striking out as the suit cannot be conducted on pleadings yet to be filed within 2 weeks. Judicial notice is to be taken of the fact that Annual vacation for High Court of Anambra State starts tomorrow being 1st of August 2019. Even at that, there is no magic the Court can do to conclude pleadings, hear and determine within 2 weeks. It is indeed not realizable? (Underlining mine for emphasis).
Even if the Court had 26 days to or two weeks to order pleadings as submitted by learned counsel to the Appellant in paragraph 5.2 of his brief, I cannot but agree with the trial Court on the reasons why an order that pleadings be filed cannot be made. It is not by accident that 180 days was allotted for the hearing and determination of pre-election matters.

Notwithstanding the fact that election and election related matters are in a class of their own and are required to be tried expeditiously, it does not give a Court the latitude to run at a pace where justice would be hurriedly served on litigants. The law cannot command the doing of the impossible. With the circumstances surrounding the action, it would have been practically impossible to have concluded pleadings, trial and have judgment delivered within the time remaining and going a day beyond the time stipulated by the provisions of the constitution would render the whole judicial process and exercise in futility. The Appellant cannot blame the calamity caused by his choice of the mode of commencing the action on the learned trial judge. I find the decision of the Supreme Court in OLLEY V TUNJI 2013, 10 NWLR PART 1362, 275 At 323 relied on by the learned trial judge and all the Respondents instructive on this note. The Apex Court, Per Ngwuta JSC in the aforestated case held as follows:
?There appears to be a new trend in the application by way of originating summons in our electoral jurisprudence, often sought to be justified on the ground that time

is of essence in electoral matters. In electoral matters, the stake is high, so high that in the case of disputed nomination or actual election, the parties can hardly agree on such innocuous issues of facts as the time of the day or day of the week. In such case as the one before us, the plaintiff discovers belatedly to his dismay that his short course has suddenly become the longest route.?
From the above excerpts of the decision of the Apex Court, I want to agree with the learned trial judge that the Appellant having adopted that particular mode of commencement adopted same at his own peril. It would be unreasonable to blame the Court below for his inevitable calamity. In my final analysis on this issue, I find the Appellant?s argument that the failure of the Court below to order for pleadings to be able to comprehensively determine the case presented to it a violation of the Appellant?s right to fair hearing unsustainable in law and in facts. On the whole, I hereby resolve this second issue against the Appellant and in favour of all the Respondents.

?Despite having resolved the two issues against the Appellant, I still wish to

comment on the Appellant?s prayers praying this Court to invoke the provisions of Section 15 of the Court of Appeal Act and make necessary orders which the trial Court ought to have made if the case of the Appellant was heard on the merit. This Court Per Hussaini, JCA in VERNER V FEDERAL UNIVERSITY OF TECHNOLOGY, YOLA (2017) LPELR ? 43001 (CA), while considering purpose and scope of the powers of the Court of Appeal under Section 15 of the Court of Appeal Act and the conditions that must exist before the Court can invoke and exercise its powers under this Section held as follows:
“The appellant through counsel has urged on us to invoke our powers under Section 15 of the Court of Appeal Act, 2004 which provides: – “15. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings or any question which the Court of Appeal thinks fit to determine before Judgment in the appeal, and may make an interim order or grant injunction which the Court below is

authorized to make or grant and may direct any necessary inquiries or accounts 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 part or may remit it to the Court below for the purpose of such rehearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.” The conditions under which the Court of Appeal will invoke its powers under Section 15 of the Court of Appeal Act have been listed or set out in the case of Ezeigwe Vs. Nwawulu & Ors (2010) 4 NWLR (Pt. 83) 109; Obi vs. INEC (2007) 1 NWLR (Pt. 1046) 465; Agbakoba V. INEC (2008)18 NWLR (Pt. 1119). The factors are: (1) The question must be a ground of appeal (2) The High Court from which the matter emanates must have jurisdiction in the matter. Jurisdiction of the High Court is the prerequisite

for the invocation of the provisions of Section 15 of the Court of Appeal. (3) Availability of the necessary materials to consider and adjudicate in the matter. (4) The length of time between the disposal of the action at the trial Court and the hearing of the appeal. (5) The interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial Court for rehearing and the hardship such an order would cause on either or both parties in the case.” Per HUSSAINI, J.C.A (Pp. 30-32, para. A) (Underlining mine for emphasis).
Having held that the case of the Appellant was statute barred, it is only logical to hold that the Court below had no jurisdiction to entertain same in the first place. I agree with all the Respondents that Section 15 of the Act can only be invoked when the suit of the Appellant is competent. From the circumstances of this case, however good and compelling the suit of the Appellant is, it cannot be remedied because it is dead and no judicial miracle can revive it. The suit is statute barred.

?On the whole, I hereby resolve the issues formulated by counsel to the Appellant and adopted by

this Court in the resolution of this appeal against the Appellant and in favour of all the Respondents.

This Appeal lacks merit and same is hereby dismissed. The decision of the High Court of Anambra State, Awka Judicial Division delivered by O.M. Anyachebelu J. on the 31st day of July, 2019 is hereby affirmed. Parties shall bear their respective costs.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother ABUBAKAR SADIQ UMAR – JCA in which I hereby adopt as mine.

determine that which is non-existent. In other words, a suit struck out is no longer alive and upon which no appeal can lie and be heard. To do otherwise, would amount to an exercise in futility and the Court does not act in vain. I am fortified by this Court’s in ANAMBRA STATE vs N.I.W.A (2004) 3 NWLR (pt 861) 640.
This is so because an appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action. An appeal should be a complaint against the decision of a retrial Court. Thus in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See: –
(i) N.D.I C vs S.B.N (2003) 1 NWLR (pt 801) 311;
(D) Oredoyin V. Arowolo (1989) 4 NWLR (pt. 114) 172;
(iii) Babalola v. State (1989) 4 NWLR (pt 115) 264; and
(iv) Jumbo V. Bryanko Int. Ltd (1995) 6 NWLR (pt. 403) 545 at 547.” per Muntaka-Coomassie, DSC. (see also I.M.N.L V. PEGOFOR INDUSTRIES LTD. (2005) 15 NWLR (Pt. 947) 1, EDEBIRI V. EDEBIRI (1997) 4 NWLR (Pt. 498) 165 and PLATEAU STATE GOVT. V. CREST HOTEL & GARDEN LTD (2012) LPELR-9794 (CA).

This Court has also held in the unreported case of MR. PAUL EZEILO & ANOR. V. ANTHONY OKECHUKWU EZEONU, appeal no. CA/E/285/2009 delivered on the 24th of June, 2019 at the Enugu Division per Dongban-Mensem, JCA thus;
“The contempt proceedings at the trial Court being criminal in nature can only give rise to a criminal appeal and not a civil appeal Since an appeal is a continuation of the case before the trial Court. The Apex Court in OKORO V. EGBUOH (2006) 15 NWLR (Pt. 1001) 1. S.C. held thus:
“An appellate Court is guided by the principle of law that a party is bound to make the same case in both the trial Court and the Court of Appeal. Consequently, an appellate Court will not encourage or allow a party to make a case at the trial Court and then make a totally different case on appeal. Per Oguntade, J.S.C. ”
Section 15 of the Court of Appeal Act cannot resurrect a dead suit. This Court can only step into the shoes of the learned trial Court if the suit sought to be remedied is alive and competent. See the decision in EZEIGWE V. NWAWULU & ORS. (2010) LPELR-1201 (SC) which held thus;
“Section 15 of the Court of Appeal Act, 2004 provides as

follows: –
“The 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 accounts 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 rehear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of Court, Or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be reheard by a Court of competent jurisdiction.

In interpreting the above provision, this Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465; Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke (2007) 4 (Pt. 1025) 423 and Agbakoba vs INEC(2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply the following conditions must exist, to wit:
(a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it;
(b) that the real issue raised by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal;
(c) that all necessary materials must be available to the Court for consideration
(d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and,
(e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.” Per Onnoghen, JSC (AHTW). (See also OKEKE V. NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018) LPELR-43781 (CA).
The case of the Appellant is beyond redemption and

is accordingly hereby dismissed; being statute barred

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance, the Lead Judgment of my Learned Brother, A. S. UMAR, JCA; and I am in total agreement with his reasoning and conclusion that this Appeal is unmeritorious and should be dismissed.

There is no doubt that since the Court below rightly held that it lacked the jurisdiction to entertain the Appellant’s Suit because it was statute barred, Section 15 of the Court of Appeal Act, 2004 cannot be invoked to resuscitate same here on Appeal. I totally agree with my Lords unassailable position on the authorities of Ezeigwe v. Nwawulu & Ors. (2010) 4 NWLR (Pt.83) 109; Obi v. INEC (2007) 1 NWLR (Pt.119) which were followed by Hussaini JCA; in Verner v. Fed. University of Technology, Yola (2017) LPELR -43001(CA) on the purpose and scope of this Court under Section 15 of the Court of Appeal Act, 2004; that the conditions for the invocation of the above Section of the Act, do not exist as the Appellant’s case was incompetent in the first place.
?In the circumstances, I also dismiss the Appeal and abide by

the order as to costs as made by my Learned Brother.

Appearances:

Gudaji Hamza Ahmed, Esq. With N.D. Udegbunam, Esq.For Appellant(s)

Ekene E. Ude, Esq. for 1st Respondent.
Obumneme Ezeonu, Esq. for 2nd Respondent.
Dr. C. B. Anyingbo, FICMC, MCArb for 3rd Respondent.For Respondent(s)

Appearances

Gudaji Hamza Ahmed, Esq. With N.D. Udegbunam, Esq.For Appellant

AND

Ekene E. Ude, Esq. for 1st Respondent.
Obumneme Ezeonu, Esq. for 2nd Respondent.
Dr. C. B. Anyingbo, FICMC, MCArb for 3rd Respondent.For Respondent