Apc V. Enwerem & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

ADAMU JAURO, J.S.C. 

This appeal is against the ruling of the Court of Appeal Abuja Judicial Division delivered on November, 2020 wherein the Appellant’s application for extension of time to appeal against the judgment of the High Court of the Federal Capital Territory delivered on 14th August, 2018 was refused.

BRIEF STATEMENT OF FACTS

The 1st Respondent as Claimant took out an Originating Summons against the Appellant and the 2nd and 3rd Respondents, seeking the determination of the following questions: –

1. “Whether having regard to the appeal pending before the Court of Appeal, Owerri Judicial Division in which the 1st Defendant herein is an Appellant thereat and the pending motion for stay of execution of the judgment of the Federal High Court Owerri Judicial Division in suit No. FHC/OW/CS/69/2018, BETWEEN: BARR MBAGWU AUGUSTINE & ORS V. APC & ORS, delivered on the 5th day of July, 2018 the Independent National Electoral Commission had the power/duty to monitor the State, Ward and Local Government Congresses of the 1st Defendant purportedly held in Imo State of Nigeria between the 20th and 23rd of July, 2018?
2. Whether the 1st Defendant has the powers to validly/lawfully schedule and or conduct the State, Ward and Local Government Congresses of the Defendant purportedly held in Imo State of Nigeria between the 20th and 23rd of July, 2018, without Twenty One (21) days notice given to the Independent National Electoral Commission in line with the mandatory provision of Section 85(1) of the Electoral Act, 2010 (as amended)?
3. Whether having regard to the appeal pending before the Court of Appeal, Owerri Judicial Division in which the 1st Defendant is an Appellant thereat and the pending Motion for Stay of Execution of the judgment of the Federal High Court, Owerri Judicial Division in Suit No. FHC/OW/CS/69/2018, BETWEEN: BARR. MBAGWU AUGUSTINE & ORS v. APC & ORS, delivered on the 5th day of July, 2018, the 1st Defendant can validly/ lawfully schedule and of conduct the State, Ward and Local Government Congresses of the 1st Defendant purportedly held in Imo State of Nigeria between the 20th and 23rd of July, 2018?
4. Whether having regard to the appeal pending before the Court of Appeal, Owerri Judicial Division in which the 1st Defendant is an Appellant thereat and the pending Motion for Stay of Execution of the judgment of the Federal High Court, Owerri Judicial Division in Suit No. FHC/OW/CS/69/2018, BETWEEN: BARR. MBAGWU AUGUSTINE & ORS v. APC & ORS, delivered on the 5th day of July, 2018, the State, Ward and Local Government Congresses of the 1st Defendant purportedly held in Imo State of Nigeria between the 20th and 23rd of July, 2018 is not illegal, unlawful, null and void and a gross abuse of Court/judicial process?”

In the event of a favourable determination of the aforementioned questions in its favour, the 1st Respondent sought the following reliefs: –

1. “A SOLEMN DECLARATION of this Honourable Court that having regard to the appeal pending before the Court of Appeal, Owerri Judicial Division in which the 1st Defendant herein is an appellant thereat and the pending Motion for Stay of Execution of the judgment of the Federal High Court, Owerri Judicial Division in Suit No: FHC/OW/CS/69/2018 BETWEEN: BARR. MBAGWU AUGUSTINE & ORS V. APC & ORS delivered on the 5th day of July, 2018 the Independent National Electoral Commission has no power/ duty to monitor the State, Ward and Local Government Congresses of the 1st Defendant purportedly held in Imo State of Nigeria between the 20th and 23rd of July 2018.
2. A DECLARATION of this Honourable Court that the 1st Defendant has no powers to validly/lawfully schedule and or conduct the State, Ward and Local Government Congresses of the 1st Defendant purportedly held in Imo State of Nigeria between the 20th and 23rd of July, 2018 without Twenty-One (21) days’ Notice given to the Independent National Electoral Commission in line with the mandatory provision of Section 85 (1) of the Electoral Act 2010 (as amended).
3. A DECLARATION of this Honourable Court that having regard to the appeal pending before the Court of Appeal, Owerri Judicial Division in which the 1st Defendant is an Appellant thereat and the pending Motion for Stay of Execution of the Judgment of the Federal High Court, Owerri Judicial Division in Suit No: FHC/OW/CS/69/2018 BETWEEN: BARR. MBAGWU AUGUSTINE & ORS APC & ORS delivered on the 5th day of July, 2018, the 1st Defendant cannot validly/lawfully schedule and or conduct the State, Ward and Local Government Congresses of the 1st Defendant purportedly held in Imo State of Nigeria between the 20th and 23rd of July, 2018.
4. A DECLARATION of this Honourable Court that the State, Ward and Local Government Congresses of the 1st Defendant purportedly held in Imo State of Nigeria between the 20th and 23rd of July, 2018 is illegal, unlawful, null and void and a gross abuse of Court/judicial process.
5. AN ORDER of this Honourable Court nullifying and/or setting aside the State, Ward and Local Government Congresses of the 1st Defendant purportedly held in Imo State of Nigeria between the 20th and 23rd of July, 2018 as same was conducted in defiance of an existing appeal.
6. Cost of this action.
7. ANY OTHER ORDER(S) as this Honourable Court may deem fit and proper to make in the circumstances of this case.”

In opposition to the Originating Summons, the Appellant and the 2nd and 3rd Respondents as 1st, 2nd and 3rd Defendants respectively filed their counter-affidavits and written addresses. The 3rd Respondent as the 3rd Defendant also filed a counter-claim.

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After the hearing, the trial Court delivered a considered judgment on 14/8/2018 wherein it dismissed the 1st Respondent’s claims and granted the 3rd Respondent’s counter-claim.

On 17/8/2020, the Appellant filed an application before the Court below seeking inter alia, an order extending time within which to appeal against the judgment of the trial Court. The lower Court however dismissed the application on the ground that the suit in respect of which the Appellant seeks to appeal is statute barred, same being a pre-election matter. The Appellant was displeased by the dismissal of its application, hence this appeal. The Notice of Appeal by which the Appellant instituted this appeal was filed on 16/11/2020.

ROBERT EMUKPOERUO SAN. settled the Appellant’s brief filed on 2/12/2020 and the Reply to the 1st Respondent’s brief filed on 25/2/2022. For the determination of the appeal, counsel formulated two issues as follows: –

1. “Whether their Lordships of the Court below misconstrued the case before them and came to a wrong decision that the case before the trial High Court of the FCT Abuja was a pre-election matter under the provisions of Section 284(14)(a) – (c) (sic) of the 1999 Constitution as amended? GROUNDS 1, 2 and 3.
2. Whether the Court below was in error to hold that the grant of the Appellant’s application for extension of time to appeal had become academic and would be of no meaningful remedy since the matter before it was a statute barred pre-election matter having regard to the case of APC V. UMAR & ORS (2019) 8 NWLR (PT. 1675) at page 575 at paragraph G and Section 285(14) of the 1999 Constitution as amended? GROUNDS 4 AND 5 ”

Arguing the two issues together, the learned senior counsel submitted that the law is trite that it is the reliefs sought in an action that defines the jurisdiction of the Court. Reference was made to GOLDMARK (NIG) LTD & ORS V. IBAFON CO LTD & ORS (2012) LPELR – 9349 (SC). It was submitted that considering the reliefs granted by the trial Court, it is clear that the case had nothing to do with nomination of candidates for election into offices created by the Constitution. That the case was simply to declare who the officers of the Appellant in Imo State were. He submitted further that the Court below misapprehended the case before it, hence its decision that the case is a pre-election matter.

Learned senior counsel further submitted that the reliefs granted by the High Court of the Federal Capital Territory Abuja do not come within the letters or intendment of the provisions of Section 285(14) of the 1999 Constitution. Reliance was placed on PDP & ORS V. BADAIRE & ORS (2019) LPELR – 47063 (CA). He contended that neither the claimant nor the counter-claimant was an aspirant or a political party as required by Section 285(14) of the Constitution. That the reliefs granted were also not granted in favour of any aspirant Of a political party. The case of HARUNA V. BALA & ORS (2019) LPELR- 49097 (CA) was cited in support. He further submitted that the crux of the complaint before the trial Court was an intra-party affair pertaining to the election of the executives of the Appellant at the Ward, Local Government Area and State levels, which in itself is not justiciable and untraceable to Section 285(14) of the Constitution. Reliance was placed on PDP & ORS V. OGUNDIPE & ORS (2018) LPELR – 43887 (CA), UFOMBA V. INEC (2017) LPELR – 42079 (SC).

Learned senior counsel further submitted that the subject matter of the suit before the trial Court took place in Imo State, thereby depriving the trial Court of the jurisdiction to entertain same. He submitted that the entirety of the proceedings and judgment of the trial Court was a nullity. He relied on the case of SORO V. GALADIMA & ORS (2019) LPELR-49092 (CA), OLUFEAGBA V. ABDUL-RAHEEM (2009) 18 NWLR (PT. 1173) 384, MUSTAPHA V. GOVERNOR OF LAGOS STATE (1987) 4 SCNJ 143, MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 578, OKIKE V. LPDC (2005) LPELR – 2450 (SC) AND EZENWAJI V. U.N.N. (2017) 18 NWLR (PT. 1598) 485.

Learned senior counsel for the Appellant submitted that the lower Court was wrong to hold that the Appellant’s appeal was academic in the face of jurisdictional nature of the Appellant’s grounds of appeal. Learned counsel further submitted that the issue of jurisdiction is fundamental and can be taken at any time, in any manner and at any stage of the proceedings. Reliance was placed on the case of APGA V. ANYANWU (2014) 7 NWLR (PT. 1407) 541. He cited the unreported judgment ofUGWUMBA UCHE NWOSU V. ACTION PEOPLES PARTY (Appeal No. SC. 1384/2019) to the effect that where an action is a nullity, time does not run against it.