Iwok V. Nyang & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Calabar Division summarily striking out the Appellant’s appeal in Appeal No. CA/C/119/2021.

​Just by way of summary of facts leading to the commencement of the suit at the trial Court, the Appellant, who was a member of the 2nd Respondent party and an aspirant for the Chairmanship position of Abak Local Government of Akwa Ibom State, alleged that following the announcement by the Government of Akwa Ibom State of its intention to conduct elections across the Local Government Councils in the state, the chapter party Chairman of the 2nd Respondent in Abak Local Government Area of Akwa Ibom State – one Dr. Michael Dan Udo, published a document by which the chairmanship position for Abak Local Government under the platform of the 2nd Respondent, was zoned to Midim Clan, a constituent Clan in the Local Government (alongside four other Clans) which the Appellant belongs to. According to the Appellant, this zoning arrangement is in line with the practice that has been adopted by the 2nd Respondent in Abak Local Government for over 20 years. However, it was discovered that contrary to the zoning arrangement already agreed and established over a long period of time, nomination forms were sold to the 1st Respondent and other persons who are not indigenes of Midim Clan, and during the screening process, the Screening Committee of the 2nd Respondent rejected the Appellant on the ground that the zoning arrangement did not favour his Clan. After exhausting the internal dispute resolution mechanism of the party including filing a complaint with the 2nd Respondent’s Appeal Panel, and without getting a formal disqualification letter, and following the publication of list of candidates for the Local Government Election by the 2nd Respondent, the Appellant as Claimant commenced an action vide a writ of summons dated the 10th day of September, 2020 against the 1st to 3rd Respondents (as 1st to 3rd Defendants) seeking the following reliefs:

1. “A Declaration that it is the turn of Midim Clan in Abak Local Government to produce the Chairman of Abak Local Government in the year 2020 Local Government election as all the five Clans in Abak Local Government have enjoyed the Zoning Formula and Midim Clan waited for the past 21 years for other clans to produce the Chairman of Abak Local Government in pursuance of equity, fairness and justice, and in tandem with the 2nd Defendant’s zoning formula.
2. An order of injunction against the 1st Defendant from parading himself as the nominated chairmanship candidature of the 2nd Defendant in Abak Local Government in Akwa Ibom State Local Government Election scheduled for the 31st day of October, 2020.
3. An order compelling the 2nd and 3rd Defendants to replace the name of the 1st Defendant with the name of the Claimant as the candidate of the 2nd Defendant for chairmanship of Abak Local Government in Akwa Ibom State Local Government Election scheduled for the 31st day of October, 2020.
4. An order of injunction restraining the 3rd Defendant from accepting the 1st Defendant as the nominated chairmanship candidate of the 2nd Defendant in Abak Local Government in Akwa Ibom State Local Government Election scheduled for the 31st day of October, 2020. ”

The matter was then heard by the trial Court, and on the 2nd day of March, 2021, judgment was delivered against the Appellant, and the trial Court held that the Appellant is not entitled to the reliefs sought, the reliefs were therefore accordingly dismissed. The Appellant became nettled by the decision of the trial Court and appealed to the lower Court, the Court of Appeal, Calabar Division. On the 26th day of June, 2021, the lower Court rendered a decision holding that the Appellant’s appeal had lapsed having regard to the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. The Appellant again became aggrieved and further appealed to this Court, Appellants appeal is premised on three (3) grounds of appeal contained in the notice of appeal filed on the 1st day of July, 2021.

The brief of argument of the Appellant was filed by learned Counsel Kabir Akingbolu, Esq., on the 12th day of July, 2021. Learned Counsel also filed the Appellant’s reply brief on the 28th day of July, 2021. In the Appellant’s brief of argument, learned Counsel nominated and argued three issues for determination, the issues are:

1. “Having regards to the provision of Section 36 of the Constitution whether the failure of the lower Court to hear the Appellant’s appeal was not a breach of his right to fair hearing. (Distilled from Ground 3).
2. Considering the combined effect of Section 122(2)(9)(j) and (n) of the Evidence Act, 2011, whether the lower Court was right in striking out the appeal without taking judicial notice of the Judicial Staff Union of Nigeria (JUSUN) Industrial Strike in computing time within which to hear the Appellant’s appeal (Distilled from Ground 1).
3. Given the clear and unambiguous provision of Section 285(12) and (14) of the Constitution, whether the limitation period of sixty (60) days to determine pre-election matters apply to election conducted under a state government law. (Distilled from Ground 2).”

Learned Counsel Utibe Nwoko, Esq., filed the 1st Respondent’s brief of argument on the 22nd day of July, 2021. In the 1st Respondents brief of argument, learned Counsel nominated and argued two issues for determination, the issues are reproduced as follows:

1. “Was the appeal of the Appellant at the Court of Appeal still alive to enjoy the exercise of vires of the Court of Appeal in view of Section 285(12) of the Constitution?
2. In view of the Supreme Court’s decision in Professor Jerry Gana vs. SDP [2019] 11 NWLR (Pt. 1684) 560 vis-a-vis Exhibit A2, was the case of the Appellant not liable to be dismissed?”

The 2nd Respondent’s brief of argument was filed by learned Counsel Akpadiaha Ebitu, Esq., on the 26th day of July, 2021, Counsel nominated sole issue for determination, the sole issue reads as follows:

“Was the Court below right in striking out Appeal No. CA/C/119/2021 for reasons that the time for the appeal has lapsed?”

Learned Counsel Ekemini Udim, Esq., prepared the undated 3rd Respondent’s brief of argument filed on the 26th day of July, 2021, wherein a sole issue was also crafted, the issue reads as follows:

“Whether the provision of Section 285 of the Constitution on pre-election matters, including the time within which pre-election appeals must be heard and determined, is not applicable to pre-election matters arising in the build-up to the conduct of Local Government elections?”

The contention of the learned Counsel for the Appellant is that since the case leading to the present appeal emanated from Akwa Ibom State Government Election conducted under the Akwa Ibom State Independent Electoral Commission (AKISIEC) Law of 2017, it means that the election and all complaints relating thereto shall be guided by the provisions of law(s) made by the Akwa Ibom State legislature, and not the provisions of Section 285(12) of the Constitution. Learned Counsel submitted that Section 285(12) and (14) of the Constitution do not accommodate pre-election matters in connection with Local Government Elections. Learned Counsel relied on the decisions in INEC V. PDP [1999] 11 NWLR (Pt. 626) 174, SARAKI v. KOTOYE [1992] 9 NWLR (Pt. 264) 156, ADISA V. OYINWOLA [2000] 10 NWLR (Pt. 674) 116 at 203 – 204 to submit that the literal interpretation of Section 285(12) and (14)(a) and (b) must be adopted. Learned Counsel then submitted that ‘election’ for the purpose of Section 285 of the Constitution means an election that is conducted by the Independent National Electoral Commission and not one conducted by the State Election body or State Electoral Commission. It was further submitted by Learned Counsel that since there is no time limit under the AKISIEC Law within which to hear an appeal in respect of a pre-election matter from the local government election, the lower Court was wrong to have struck out the Appellant’s appeal for effluxion of time. Learned Counsel finally relied on the decision in GAFAR V. GOVT. OF KWARA STATE [2007] 4 NWLR (Pt. 1024) 375 at 4051 paras B – D to submit that a Federal agency cannot make an order to bind a state agency and vice-versa.

Responding to the submissions of learned Counsel for the Appellant, learned Counsel for the 1st Respondent said Section 285(12) of the Constitution relates to all primary elections in Nigeria including primary election for the selection of the Chairman and Councilors in Local Governments of Akwa Ibom State and by this token, an appeal from a decision on a pre-election matter must be concluded within 60 days of filing of the appeal. Learned Counsel further submitted that with the use of the word ‘AND’ in Section 285(14)(a) of the Constitution to include complaints bordering on guidelines of political parties, the drafters of the Constitution intended that the scope of the section is beyond national elections, but also include primary elections of the Local Government Elections, relying on the decision in LUNA V. COP, RIVERS STATE ​[2018] 11 NWLR (Pt. 1630) 269 at 290, paras B – E.

Arguing further, learned Counsel submitted that even though the AKISIEC Law has not made provisions for the determination of pre-election matters, by Section 19 of the Law, resort shall be made to the provisions of the Constitution and the Electoral Act. In addition, he argued that since it is the Constitution that regulates pre-election matters, Section 285(12) of the Constitution is a procedural provision which regulates all Courts in Nigeria, referring to the decision in ONYEKE V. PDP [2020] 14 NWLR (Pt. 1745) 463 at 477 – 478, paras F – A. Learned Counsel referred to a host of other authorities to submit on the interpretational restraint of the Court; that the Court should apply the words contained in the relevant provisions of the Constitution in the context in which it is used and not act on sentiments.

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