All Progressives Congress & Ors V. In Re: Congress For Progressive Change & Ors (2014)
LAWGLOBAL HUB Lead Judgment Report
I.T. MUHAMMAD, J.S.C.
I consider it pertinent to reproduce from the record of appeal, background facts giving rise to the appeal on hand from which stemmed the application under consideration.
The Independent National Electoral Commission (INEC), 1st respondent, herein, commenced preparations in April, 2011, towards holding gubernatorial elections in Kogi State as well as in other affected states. The elections were scheduled to take place in such states on the 26th of April, 2011. Meanwhile, the former Governor of Kogi State, Alh. Ibrahim Idris, who was then the incumbent Governor of the State, instituted an action at the Federal High Court, Abuja (trial court), against the 1st respondent claiming inter alia, an injunction restraining the 1st respondent from conducting any gubernatorial election in Kogi State in April, 2011, until the expiration of his four year tenure on April, 2012.
In its judgment of 23/02/2011, the trial court held that the tenure of the then Kogi State Governor which commenced from 5th April, 2008, shall terminate on 5th April, 2012. Consequent upon that, the 1st respondent halted, cancelled and abandoned all preparations concerning the proposed gubernatorial election in Kogi State.
On an appeal to the Court of Appeal, Abuja Division, the decision of the trial court was affirmed.
There was a further appeal to this court by the 1st respondent which was later consolidated with other appeals on similar issues.
In the meantime, 1st respondent conducted fresh gubernatorial election for Kogi State on the 3rd of December, 2011 in which the 3rd respondent emerged winner of the election.
This court delivered its judgment on the consolidated appeals before it on the 27th of January, 2012 holding that the Terms of office of the then incumbent Governor of Kogi State, Ibrahim Idris, had indeed lapsed in May, 2011 and that he should vacate office immediately. This paved way for the swearing in of the 3rd respondent on 27th January 2012 on the basis of his victory at the December 3rd, 2011 poll.
On the 7th of March, 2012, the appellant in the appeal on hand and the 8th respondent commenced an action at the Federal High Court via an Originating Summons which was later amended. Each of the 1st, 2nd and 3rd respondents filed a Preliminary Objection challenging the jurisdiction of the Federal High Court to determine the 6th and 7th respondents’ suit as it was not a pre-election matter, and that the appellant lacked the locus standi to maintain the action. The Preliminary Objections were upheld and the 6th and 7th respondents’ amended Originating Summons was struck out. On appeal to the Court of Appeal, the appeal was dismissed by that court and it affirmed the decision of the Federal High Court that the latter lacked jurisdiction to entertain the appellants case. The present appeal, now before this court, stemmed from the Court of Appeal’s dismissal of the appellant’s appeal.
My lords, the true picture of the whole episode will remain incomplete, if I omit to capture the new facts that emerged later, and that is: at the time of filing of the suit by the appellant, an Election Tribunal had been set up for Kogi State to deal with all challenges relating to the December, 3rd, 2011, election, and pending before the Tribunal was an Election Petition filed against the 3rd respondent and others. At the end of trial, the Election Tribunal found and held that the gubernatorial election of December 3rd, 2011, in Kogi State, was properly conducted and that the 3rd respondent was validly elected as Governor of Kogi State. On 14th July, 2012, Court of Appeal affirmed the judgment of the Election Tribunal, holding that the 3rd respondent was duly elected as Governor of Kogi State. On further appeal to the Supreme Court, the court affirmed the judgment of the Court of Appeal.
I should now consider the application before this court. It is to be recalled, however, that the pending appeal is on the decision of the Court of Appeal which affirmed the trial court’s decision that it (the trial court) lacked jurisdiction to entertain the appellant’s case.
On the date scheduled for hearing the appeal (9/10/14), several applications including preliminary Objections were filed by the respective senior counsel and other counsel in the matter. Some of the applications were withdrawn and struck out: other harmless ones were granted right away.
Mr. Okutepa, SAN, sought to move his motion on Notice which he said was dated 2nd of October, 2014 and filed on the 3rd of the same month. He said the motion on Notice prays for an order substituting the appellant, Congress for Progressive Change (CPC) with the applicant, All Progressives Congress (APC) are for same substitution to appear wherever CPC appears.
Soon thereafter, Mr. Uche, SAN, for the 3rd respondent, stood up to say that he filed a Notice of Preliminary Objection and counter-affidavit. Mr. Ajana, for 2nd respondent, stated that he too filed a Notice of Preliminary Objection. None of the other counsel for the respondents filed any objection. This court granted permission to the objectors to proceed with their objections first. The trite law is that where there is an objection against consideration/continuation of a process that objection should be determined first. See: Ogoja v. Offoboche (1996) 8 NWLR (Pt.458) 48; Katto v. CBN (1991) 9 NWLR (Pt.214) 126; ANPP v R.O.A.S.S.D. (2005) 6 NWLR (Pt.920) 140.
While moving his objection, Mr. Uche, SAN, stated that he filed the Notice of Objection on the 3rd of October, 2014 (dated same day). That it was accompanied by a 7 paragraph affidavit deposed to by one Mr. Kanayo Okafor. Four exhibits were attached, marked as Exhibits “A, B, C, and D”. Referring to some of the depositions made in the affidavits in support of exhibits “B” and “C” in particular, Mr. Uche, SAN, stated that the appellant deposed that the Certificate of Registration of CPC was withdrawn and that in ground 2 of the grounds in support of the said motions as in exhibits “B” and “C” it was admitted by the appellant that CPC ceased to exist by the withdrawal of its Certificate of Registration. That having admitted the non-existence of the appellant, Mr. Okutepa, SAN can’t be heard speaking from both sides of his mouth.
Mr. Uche, SAN, stated that he also filed a counter-affidavit to which Exhibit “E”, which is the Certificate of Registration for the merger of CPC and other political parties was attached. Exhibit “E”, shows the effective date of the merger to be 31/07/2013. He drew the court’s attention to note that although the appellant reacted to the counter-affidavit, it failed to exhibit any document in support of its case. Mr. Uche, SAN, urged this court further to take cognizance that the appeal on hand was filed on the 7th day of August, 2013 (seven days after the death of the appellant). He urged us to dismiss the appeal on hand and the incompetent motion as it will serve no useful purpose.
Mr. Ajana of counsel for the 2nd respondent, stated that he too, filed a Notice of Preliminary Objection, premised on almost same grounds like that of the learned Senior counsel for the 3rd respondent/objector. He said that he aligned himself with the submissions made by Mr. Uche, SAN, for the 3rd respondent/objector and that he had nothing useful to add. He urged that the appeal be dismissed.
Messrs. Fatogun, Abalaka, Ekpa, Mathew and Eshomegie, each of them stated that he did not file any Notice of Preliminary Objection on behalf of the party he represents.
Making oral submission in response to the Notices of Preliminary Objections filed, Mr. Okutepa, SAN, stated that the appeal filed by the appellant (CPC) is competent. He argued in a paradoxical manner that, the Notices of preliminary Objections filed by Mr. Uche, SAN, and Mr. Ajana, would suffer the same fatal consequence if indeed the appellant (CPC) is dead and, the processes filed by them are also dead.
Mr. Okutepa, SAN, argued that APC (the applicant) is the party in the application before this court but not a party to the Preliminary Objections now moved by the 2nd and 3rd respondents. He argued further that the issue now before this court on whether or not CPC (the appellant) died on 31/07/13 or on 8/8/13, can only be resolved by reference to the law, i,e. the Electoral Act, 2010 (as amended), sections 78(1); 80 and 84(5) thereof. Mr. Okutepa, SAN, submitted that before the merger, CPC was a registered political party. The death of CPC will only become conclusive on the date INEC issued Certificate to the merged political parties and INEC issued that merger certificate on 8/8/2013. He sounded the point that until the issuance of the certificate of merger, each of the political parties to the merger only became sick and not yet dead. The death of each of the merged parties came on the 8/8/2013. He cited in support, the case of Corporative Commerce Bank Nig. Ltd v. Alex Onwihekwa (2000) 2 NWLR (Pt.647) 65. Learned SAN urged that this court should hold that since the certificate of merger was issued on the 8/8/2013 and the appeal on hand filed on 7/8/13, when CPC was yet to be wound up as a Political Party, the appeal on hand is competent by virtue of section 80 of the Electoral Act, 2010 (as amended) and that the objections should be overruled.
It is significant to state from the out-set, my lords, that an objection ordinarily is that (act) which is said or felt in opposition or disagreement; the reason or cause for disagreeing, or disputing. It is an adverse reason or argument. It is a way of saying that one does not like or agree with what the other wants to do, or has indeed started doing it or has even done it. In legal parlance, however, objection represents a formal statement opposing something that has occurred, or is about to occur in court and the objector is seeking court’s immediate ruling on the point. It may be in general or specific form. An objection is general where no grounds in support of the objection are given. It is specific if it is supported by one or more grounds. Anything “Preliminary”, denotes anything coming and usually leading up to the main part of that thing or something else. Thus, a Preliminary Objection in a case/suit before a court of law or tribunal is that objection which if upheld would render further proceedings before that court or tribunal impossible or unnecessary. An example which readily comes to mind is an objection to the court’s or tribunal’s jurisdiction to entertain a matter placed or raised before it by any of the parties. It is the duty of the court to consider that objection and give a ruling on it without much ado. The importance of such an approach has been re-stated severally by this court. At the risk of being immodest, permit me, my lords, to quote what I said in the case of Efet v. INEC (2011) 1 SCNJ, 179 at page .194:
“The aim/essence of a Preliminary Objection is to terminate at infancy, or as it were, to nip in the bud, without dissipating unnecessary energies in considering an unworthy or fruitless matter in a court’s proceedings. It, in otherwords, forecloses hearing of the matter in order to save time.”
See further: Yaro v. Arewa Constitution Ltd & Ors (2007) 6 SCNJ 418; Sani v. Okene (2008) 5 SCNJ 246.
My Lords, I think the fundamental issue to be determined in this application as raised by the learned SAN for the applicant is whether or not CPC, the appellant, died on 31/7/13 or on 8/8/13.
In his grounds in support of the objection the 3rd respondent stated as follows:
“(2) The Appellant on record, Congress for Progressive Change (CPC) ceased to exist on 31st July, 2013 as admitted by the appellant on oath upon the withdrawal of its certificate of registration by the Independent National Electoral Commission on the said 31st July, 2013.
(3) The cancellation of the registration certificate of the appellant on 31st July, 2013 is confirmed by a certified true copy of an official letter from the Independent National Electoral Commission to the appellant on 31st July, 2013.
(4) Though, the judgment was delivered on 10th July, 2013 by the Court of Appeal, no appeal was filed by the deceased appellant before its demise on 31st July, 2013.
(5) This appeal was filed on 7th August, 2013, after the death of the appellant.
(6) The appeal is grossly incompetent
(7) The appeal as constituted robs the Honourable court of jurisdiction to enter(sic) same.”
In the counter-affidavit filed by the 3rd respondent, some of the facts above have been repeated whereas other vital depositions were made as follows:
- That the present appeal was filed on 7th August, 2013 and I annex a copy of the Notice of Appeal Exhibit “A”.
- That in court on 2nd October, 2014, we were served with a copy of a fresh motion for substitution filed by the Appellant in the name of the All Progressives Congress (APC), and I have gone through the said process with our lead counsel, Gordy Uche, Esq.
- That prior to filing of the present motion, the appellant had previously filed two similar motions on notice for substitution before this Honourable court, namely on 24th September, 2013 and on 26th September, 2014, and in both motions on notice, the affidavit in support was sworn to by the same deponent, namely, Alhaji Kashim Mabo, and I annex herewith copies of the said motions on notice as Exhibits “B” and “C” respectively.
- That in paragraph 14 of the affidavit in support of the motion on notice filed on 24th September, 2013 and in paragraph 14 also of the motion on notice filed on 26th September, 2014, the appellant through the said Alhaji Kashim Mabo had deposed “That the Certificate of CPC was withdrawn on the 31st of July, 2013.
- That also in ground No. 2 of the grounds in support of the two motions on notice, the appellant had stated unequivocally that the Congress for Progressive Change (CPC) ceased to exist on 31st July, 2013.
- That most importantly, the cancellation of the registration certificate of the appellant on 31st July, 2013 is confirmed by a certified true copy of an official letter by Independent National Electoral Commission issued to the appellant on 31st July, 2013, and I annex herewith the said letter as Exhibit “D”.
- That the same Alhaji Kashim Mabo has deposed to the affidavit in support of the present motion for substitution (which is the third one) and has turned around in paragraph 10 of the affidavit to state that the certificate of registration of CPC was cancelled on 8th August, 2013, after having deposed twice earlier that it was on 31st July, 2013.
- That the paragraphs 10 and 12 of the affidavit in support are false.
- That the appellant deliberately refused to annex and exhibit the Certificate of Registration of the All Progressive Congress (APC), notwithstanding that it referred to it in paragraph 11 of the supporting affidavit.
- That the said Certificate of Registration of the All Progressive Congress (APC) is explicit, unambiguous and clear on the fact that the merger producing APC took effect from 31st July, 2013, notwithstanding that the certificate was eventually issued on 8th August, 2013 as promised in INEC’s letter earlier annexed herein as Exhibit “C” where the Commission stated that thus:
“4. The Commission shall issue a Certificate of Registration to ALL PROGRESSIVE CONGRESS (APC) in due course.”
- That I annex the certified true copy of the Certificate of Registration of the All Progressive Congress (APC) as Exhibit “E”.
- That I was advised by our lead counsel today at about 10am at our aforesaid office, and I verily believe him, that the present application is incompetent, and incapable of breathing life into or resurrecting an incompetent appeal.
- That it is in the interest of justice to dismiss this application as incompetent and constituting an abuse of court process.”
In the affidavit in support of the Preliminary Objection filed on 11/12/13 by Chief Ajana, same facts as in paragraphs 2 – 4 from 3rd respondent’s counter-affidavit as well as from grounds of objection above, were averred to by the 2nd respondent.
In his reaction to the above depositions, the applicant, through one Mr. O. O. Obla, who swore to the facts contained in the further and better affidavit filed by the applicant on 8/10/14, made the following averments:
“2. That I was the Deputy National Secretary of the Congress for Progressive Change (CPC) uptill 8th August, 2013 when the merger into APC was concluded and the Certificate of Registration issued to All Progressive Change (APC)
- That I also acted as the Deputy National Legal Adviser of the Congress for Progressive Change (CPC) uptill 8th August, 2013 when the merger into APC was concluded.
- That as a result of the above I prayed(sic) a significant role in the processes that ted to the merger of Action Congress of Nigeria (ACN), All Nigeria Peoples Party (ANPP), Congress for Progressive Change (CPC).
- That I know as a fact that Congress for Progressive Change (CPC) did not cease to exist until the certificate of registration of All Progressive Congress (APC) (Exhibit E) was issued and substituted with that of Congress for Progressive Change (CPC), All Nigeria Peoples Party (ANPP) and Action Congress of Nigeria (ACN). I am seeing Exhibit D attached to the counter affidavit of Kanayo Okafor for the first time. I know however that the said Exhibit D is not a certificate and cannot be a substitute certificate to that of Congress for Progressive Change (CPC).
- That I worked in my office as the Deputy National Secretary of Congress for Progressive Change (CPC) up till 8th of August, when the certificate of registration of All Progressives Change (APC) was issued substituting same with the certificate of registration of CPC, ANPP and ACN.
- That I know as a fact that the power vested on INEC does not include back dating certificate of registration of any political parties rather the certificate of APC dated and issued on 8th August, 2013 takes effect from that date.
- From the above, the 3 legacy parties remained recognized legal entities until 8th August, 2013 when their certificates were substituted.
- I have also read the affidavit of Alhaji Kashim Mabo and I know as a fact that he was the Kogi State Chairman of Congress for Progressive Change (CPC) prior to and until the merger was concluded. I know as a fact that Alhaji Kashim Mabo not being a lawyer and not being a staff of National Secretariat of Congress for Progressive Change (CPC) would not know the knitty gritty of the steps taken during the merger until the certificate of registration of All Progressive Change (APC) was issued.
- That while reading the counter affidavit of Kanayo Okafor I discovered that he has exhibited the earlier motions and affidavit sworn to by Alhaji Kashim Mabo on the 24th September, 2013 and 26th September, 2014 to the counter affidavit on similar motion for substitution.
11 That I have read inter alia the most recent affidavit of Alhaji Kashim Mabo sworn to on the 3rd October, 2014 and I affirm that same is very correct. However, the earlier ones filed on the 26th September, 2014 and 24th September, 2013 are not correct hence the new motion was filed on the 2nd October, 2014.”
What appears to be apparent from the reaction of the applicant, significantly, are three fold:
a. that there was a merger between CPC and other Political Parties
b. that the merger was concluded on the 8th of August , 2013.
c. that CPC did not cease to exist until when the Certificate of Registration was granted by INEC on the 8th August, 2013.
Earlier, in the affidavit in support of the motion, the applicant averred to the fact of filing the appeal (on hand) as follows:
‘7. On the 10th of July, 2013 the Court of Appeal delivered judgment in respect of the Appeal and dismissed same.
- The appellant consequently filed an appealed(sic) against the judgment of the Court of Appeal to this court.
- That I know as a fact that as at 7th August, 2013 when this appeal was filed, CPC as a Political Party was still in existence and its certificate was yet to be cancelled and substituted with the Certificate of Registration of All Progressive Congress (APC).
In his oral submission before this court on Thursday the 9th of October, 2014, learned senior counsel for the applicant argued that in order to determine the existence or otherwise of the (appellant) CPC, on the date it filed its appeal, reference must be had to the provisions of the Electoral Act 2010 (as amended), Sections 78(1); 80 and 84(5). permit me my lords, to reproduce these sections hereunder:
“78(1) A political association that complies with the provisions of the Constitution and this Act for the purposes of registration shall be registered as a political party, provided that such application for registration as a political party shall be duly submitted to the Commission not tater than 6 months before a general election.
- A political party registered under this Act shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.
84(5) where the request for the proposed merger is approved, the Commission shall withdraw and cancel the certificates of registration of all the political parties opting for the merger and substitute a single certificate of registration in the name of the party resulting from the merger.”
My lords, above are the provisions of the Electoral Act which we were all referred to by the learned SAN for the applicant. The fundamental question still remains: Is CPC (the appellant on record), dead or alive, as at the time of filing its appeal to this court Although the death of a political party cannot be similar to that of a natural human person, yet its death resembles, though with dissimilarities, the death of juristic/corporate entity. For instance, a company is said to have died finally and beyond resurrection when it is completely wound-up. Mere withdrawal, cancellation or recall of its certificate of registration does not bring its corporate existence to an end. See: Opebiyi v. Oshoboja (1976) 9 & 10 SC.198; Nzom v. Jinadu (1987) 1 NWLR (Pt.5) 533; Abethe v. NDIC (1995) 7 NWLR (Pt.406) 228 at 240 C -D;
In our later case on similar issues, this court held:
“Now, winding up of a company involves the liquidation of the company/corporation so that assets are distributed to those entitled to receive them. Campell Black, says, liquidation is quite distinguishable from dissolution which is the end of the legal existence of a corporation. Liquidation may precede or follow dissolution (p.839 of Black’s Law Dictionary 5th ed.), thus, mere revocation of banking license of a bank, without more, as claimed by the applicant cannot bring to an end the juristic life of a bank or corporation. Likewise where a bank or corporation ceases to operate or closes its business, that does not determine the legal existence of such a bank or corporation.”
See the unreported case of Oredola Okeya Trading Co. & Anor v. Bank of Credit & Commerce International & Anor in Re: Mr. Sikiru & 1 Anor. Appeal No. SC.96/2003 delivered on 17th January, 2014.
In this application, the applicant, itself, admitted that the appeal on record was filed by it on the 7th of August, 2013 (see paragraph 8 of the supporting affidavit to this application) The bone of contention between the parties, however, is the date when merger of CPC and other political parties was sanctioned by the INEC. I remind myself here that I have already set-out averments from the affidavits, counter-affidavits, either in support or against the motion. I took a hard look at all of them and it is my humble view and findings that:
i. there is a pending appeal in this court: SC.477/2013, which was filed on the 7th August, 2013. This fact has been deposed to by the applicant in paragraph 8 of the supporting affidavit of its motion on Notice filed on 3/10/14. It is also exhibited as Exhibit “A” by the 3rd respondent/objector in paragraph 2 of its counter-affidavit filed on 3/10/14. I had a quick look, curiously, at the Record of Appeal before this court and I found the same Notice of Appeal filed on 7/8/13 (pp.1565, vol.3 of the Record of Appeal).
ii. I find that there was indeed a merger of the CPC, ACN and ANPP which gave rise to a new political party called “All Progressives Congress (APC), the applicant, herein. This fact is contained in paragraph 9 of the affidavit in support of the applicant’s motion. In fact the 3rd respondent/objector, not only agreed that there was such a merger but went on to exhibit certificate of registration of the new party, APC. It is deposed to and exhibited as Exhibit “E” in paragraph 12 of the counter affidavit.
iii. The effective date of the merger, in my honest belief, is the 31st day of July, 2013. My belief is based on the following grounds:
a. The Certificate of registration of CPC was cancelled, which cancellation was confirmed by INEC through an official letter by INEC, dated and signed by Secretary to the Commission, one Abdullahi A. Kaigama, on 31st July, 2013. This letter or document was exhibited by the 3rd respondent/objector as Exhibit “D” in paragraph 7 of his counter affidavit.
Permit me my lords to quote what INEC said in paragraphs 3 and 4 of that document:
“3. The Registration Certificate of Congress for Progressive Change (CPC) is hereby cancelled and you are therefore requested to submit same to the Commission immediately.
4, The Commission shall issue a Certificate of Registration to ALL PROGRESSIVES CONGRESS (APC) in due course. (underlining by me)
b. That INEC subsequently issued a Certificate of registration of the new party (APC) which INEC named as “Certificate of Merger of Political Parties.” That Certificate was exhibited in paragraph 12 as Exhibit “E” of the counter-affidavit of the 3rd respondent/objector. However, in paragraph 11 of its affidavit in support, the applicant acknowledged the fact that the Chairman of INEC signed, dated and issued the Certificate of Registration to APC, the applicant on the 8th of August, 2013. It is to be noted that the applicant did not exhibit the said certificate for the court to see. In the said certificate which was exhibited by the 3rd respondent, a lot has been revealed and I find it pertinent to reproduce almost the whole contents of the said certificate as follows:
“INDEPENDENT NATIONAL ELECTORAL COMMISSION
Certificate of Merger of Political Parties
WHEREAS the Commission having verified the facts and information supplied to it by ACN, ANPP & CPC Political Parties is satisfied that the said Political Parties have fulfilled all the necessary conditions for merger as a Political Party.
NOW THEREFORE, the Commission has, with effect from the 31st day of July, 2013 approved the merger of the aforesaid Political Parties as a Political Party to be known and called All Progressives Congress: pursuant to the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the Electoral Act, 2010 (as amended).
GIVEN under the hand of the Chairman and Seal of the Commission at Abuja.
This 8th day of August, 2013.
PROF. ATTAHIRU MUHAMMADU JEGA, OFR CHAIRMAN, INDEPENDENT NATIONAL ELECTORAL COMMISSION”
From the contents of Exhibit “E”, my lords, three things are clear beyond dispute:
- that having been satisfied with the facts and information supplied to it by ACN, ANPP and CPC, for their merger into a new party, INEC has, with effect from 31st day of July, 2013 APPROVED the merger of the said parties into a political party by name “All progressives Congress.”
- that the effective date of the merger of the said political parties including CPC is 31st day of July, 2013.
- that it was on the 8th of August, 2013, when authentic information of the merger was released by INEC i.e. the date when INEC Chairman appended his signature on the said Certificate of Merger.
It is, therefore, beyond dispute that the effective date the merger of the said political parties took place was on the 31st of July, 2013 and not as contended by learned SAN for the applicant, on the 8th of August 2013.
These are the main grounds.
Perhaps I need to be clearer in my reasoning process. Firstly, it is deposed to in paragraph 7 of the affidavit in support of the motion that the Court of Appeal delivered its judgment which gave rise to the appeal filed by CPC, on the 10th of July, 2013. From that date to the 31st of July, CPC was still alive but it did not file the said appeal within that time (as there is no evidence to that effect).
On 31st July, 2013, INEC passed “death sentence” on CPC which was to take effect from that date. Thus, anything done by CPC, any day after the 31st of July, 2013, was done by a dead person whether in the grave or in the mortuary (see Exh. “E”). The position of the law on the status of a dead person has been severally stated by this court and other courts. I will only cite few instances:
- in the case of SGB Ltd. V Braimoh (1991) 1 NWLR (pt.108) 428 at p.434 – D-G, it was held that:
“It is settled law that a dead person ceases to exist in the eyes of the law and any cause or action pending against such a person automatically abates unless it is one that survives the person.”
- In the case of Nzom v. Jinadu (1987) 1 NWLR (pt.51) 533 at p.539, this court, per late Oputa, JSC, held, inter alia:
“the dissolution of legal person is analogous to the death of an ordinary human person….dead man are no longer legal persons in the eye of the law as they have laid down their legal personality with their lives at death. Being destitute of rights or interest they can neither sue nor be sue of.”
Commenting on the above dictum, my learned brother, M. D. Muhammad, JCA (as he then was), stated that:
“I unhesitatingly add that such dead man cannot equally appeal against decisions not in their favour nor can they respond in an appeal, attempting to sustain such decisions which during their lifespan, favoured them. Whether at trial in first instance courts or on appeal, dead men lack legal existence which parties must have to give them the competence.”…see: CCB (Nig.) Plc. V. O’silverwax Int. Ltd. (1999) 7 NWLR (Pt.609) 97 at p.103 G – H.”
I agree with Mr. Okutepa, SAN that an appeal or a suit (in some circumstances) can survive the person that initiated it. That of course is subject to the condition that the person filing or initiating such an appeal or suit is, from the outset, imbued with competence to do so, equally, the subject matter of the appeal or suit must itself pass the test of validity. Where such conditions are lacking, even if the appeal process or the suit is commenced, it will have to abate once that militating fact has been brought to the attention of the court. Where Mr. Okutepa, SAN, missed the point in this application is that, CPC lacks the capacity as the mere fact of its death before filing the appeal on record deprived it of such competence/capacity. The courts, too, I am sure, must be wary, loathe, reluctant or scared of accepting the appeal from a dead person.
My lords, the learned SAN for the applicant, was himself not denying or doubting the death of CPC as a party. In applications which he filed before this court for same substitution which he is asking for now, agreed in his own words, that CPC, before filing the said appeal was dead. The applications together with their affidavits and attachments were exhibited by the 3rd respondent/objector in this counter affidavit. This was termed as Exhibit “B”. In the written address which accompanied Exh. “B”, the learned SAN opened his argument by the following words:
“My lords, the law is settled that this Honourable Court has the power under Order 8 Rule 9(1) to grant an order for substitution of a DEAD PARTY…. We submit that an incorporated body such as the appellant can only be substituted once it ceases to exist. We urge your Lordships to so hold….It is our humble submission that it is common knowledge the fact that the Action Congress of Nigeria (ACN), All Nigeria Peoples party (ANPP) and Congress for progressive Change (CPC) being erstwhile Political Parties have merged to come up with All Progressive Congress (APC).
The membership of these three defunct parties have wholly been transformed to that of the new emerging party, APC…. As shown in the affidavit in support, the Certificate of CPC after the merger was withdrawn on the 31st of July, 2013.”
There were potent averments in the affidavit accompanying Exh. “B” quoted above on the status of CPC as a dead/defunct political party. The same thing has been replicated in the 2nd motion exhibited as Exh. “C” along with its affidavit and attachments.
It is to be noted that in paragraphs 10 and 11 of the further and better affidavit of the applicant (quoted earlier), the applicant, through Barrister Obla, conceded to the filing of the two motions referred to by the 3rd respondent/objector as captured above. He however, stated on oath that those motions were not correct hence the new motion which was filed on 2/10/14 to replace them.
Be that as it may, I am convinced beyond doubt that CPC (the appellant on record) was dead before the filing of the appeal in its name.
Secondly, throughout the application under consideration and the further affidavit in support of the motion filed by Mr. Okutepa, SAN, no document was attached as an exhibit to support what was prayed for. For instance, the documents for merger of the political parties, the Notice of Appeal filed; the certificate of Registration of the new party, if any, etc are in my view, strong supporting documents which ought to have been exhibited by the applicant. It is the practice in all the courts of law that an applicant who fails to furnish the court with all necessary and vital document(s) for the due consideration of his application does so at his own peril as his application may likely be refused and he cannot be heard to complain. See: NNSC Ltd v. Alhaji Hammajoda Sabana Co. Ltd. (1988) 2 NWLR (Pt.74) 33; Ogunsola v NICON (1999) 10 NWLR (Pt.123) 492.
Not only that, my lords, I tend to agree with Mr. Uche, SAN, that refusal by the applicant to exhibit such vital documents such as the certificate of merger may, in fact, tantamount to withholding of evidence. Section 167(d)….of the Evidence Act is very clear on that where it provides that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. See: Eboh v. Progressive Insurance Co. Ltd. (1987) 2 QLRN 167; George v. State (2009) 1 NWLR (Pt.1122) 325; Akintola v. Anyiam (1961) All NLR 508; Aremu v. Adetoro (2007) 16 NWLR (Pt.1060) 244; Awosile v. Sotunbo (1986) 3 NWLR (Pt.29) 471.
Thirdly, I think it stands to reason that where a document has been signed and in it is provided a specific date of commencement or date when effect is to be given or action to be taken, that date must be taken to be the ‘effective’ or commencement date irrespective of the date when the officer signing the document on behalf of the authority appended his signature. That specific date of commencement can be with retrospective effect, it may commence immediately after or on the date of signing or it may even be in the future. In public and civil services and of course, with private corporations, appointments, promotions or demotions may be done with retrospective effect or immediately. If it is retrospective, the officers concerned take arrears of their entitlements attached to that office. On the other hand, if the document is silent on the commencement date, then it will be presumed that effect is to be given to it from the date the officer signed the document.
In dealing with enactments generally, the Interpretation Act as contained in Cap 123, LFN 2004, section 2 thereof provides:
“2(1) An Act is passed when the president assents to the Bill for the Act whether or not the Act then comes into force.
(2) where no other provision is made as to the time when a particular enactment is to come into force, it shall, subject to the following subsection come into force…..
a. In the case of an enactment contained in an Act of the National Assembly, on the day when the Act is passed,
b. In any other case, on the day when the enactment is made.
(3) Where an enactment is expressed to come into force on a particular day, it shall be construed as coming into force immediately on the expiration of the previous day.”
Thus, the effective date as per Exh. “E”, when the coalation of the 3 political parties ACN, ANPP and CPC, metamorphosed into All Progressives Congress (APC), and which signaled the final death of each of the 3 parties is the 31st of July, 2013. CPC, from that date was no more a political party and lacked the capacity to carry out any legal business transaction including filing an appeal.
My noble lordships, consequent upon the final and irretrievable death of CPC on the 31st of July, 2013 no appeal or any process for that matter is maintainable in the name of CPC before any court of law. If there is or (are) then that appeal or process or anything hinged on the appeal, is afflicted by the death of its initiator (the appellant). Such an appeal or process is as well dead and lacks legal capacity to be maintained. The well known dictum of Lord Denning is that one cannot put something on nothing and expect it to stand. It will certainly collapse U.A.C. V Macfoy (1961) 3 All E. R 1169 at p.1172. The application before this court is unmeritorious and unmaintainable. It is accordingly dismissed. The pending appeal which is by this ruling incompetent is hereby struck out, N100,000.00 costs to be paid by the applicant to each of the 2nd and 3rd respondents.