CORAM

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AMINA AUDI WAMBAI

MOHAMMED BABA IDRIS

MUSLIM SULE HASSAN

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PARTIES

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MEMUNA SULEIMAN & 3 ORS

APPELLANTS

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INDEPENDENT NATIONAL EECTORAL COMMISSION (INEC) & 4 ORS

RESPONDENTS

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AREA(S) OF LAW

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APPEALS, JURISDICTION, CONSTITUTIONAL LAW, CIVIL PROCEDURAL LAW, RULES OF STATUTORY INTERPRETATION, LOCUS STANDI, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

This is an appeal against the decision of the Federal High Court of Nigeria holden at Abuja (trial court). The Appellants as Plaintiffs at the trial court filled an Originating Summons and averred that the 4th, 1st and 2nd Appellants are members of the 2nd Respondent. In preparation for the congress of the 2nd Respondent, 28 persons purchased the Presidential Expression of Interest, and out of the 28 persons cleared, 23 persons filled and returned their forms and were all cleared to participate in the Presidential Primary Election of the 2nd Respondent. And out of the 23 persons cleared, 9 persons withdrew from participating in the election hence it was only 14 persons who participated in the primary election and the 3rd Respondent was declared winner. It is the Appellants’ case that the 3rd Respondent had given false information in the forms submitted hence they instituted an action at the trial court. The trial court after hearing the suit held that the Appellants lacked the locus standi to institute the action and that the case was incompetent, it further held that it lacked jurisdiction to entertain the suit hence it was struck out. Dissatisfied with the judgment of the trial court, the Appellants has appealed the decision of the trial court at this instant court.

 

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HELD

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Appeal dismissed; decision of the trial court affirmed.

 

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ISSUES

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(1) Whether having regards to the entire circumstances of this case, the lower court was not   wrong when it struck out the case of the Appellants in the manner it did.

(2) Whether the lower court was not in error when it relied on the provision of Section 285(14) of the 1999 Constitution to strike out the case of the Appellants.

 

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RATIONES DECIDENDI

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APPEALS: TIME FRAME WITHIN WHICH TO FILE AN APPEAL

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Section 285(11) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:

“An appeal from a decision in a pre-election matter shall be filed within 14 days   from the date of delivery of the judgment appealed against.”  Per – M.B IDRIS JCA

 

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ELECTION: TIME IS OF THE ESSENCE IN ELECTION RELATED MATTERS

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In the Supreme Court case of WAMBAI VS. DONATUS & ORS (2014) LPELR – 23303(SC) (PP. 21 PARAS. A), the Apex Court held:

“It is trite law that in election and election related matters, time is of essence. In the instant matter which is a pre-election matter, time is also of essence.”

It is settled law that in an election or election related matter, time is of the essence. I will add that the same applies to pre-election matters just like this one. Primarily, election matters are sui generis and time is of the essence in the doing of any act stipulated to be done in an election matter. Therefore, in an election matter, the time stipulated by the Constitution, the Electoral Act with its Schedules and or the Practice Directions, is sacrosanct and immune from violation. Per – M.B IDRIS JCA

 

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ELECTION: WHETHER OR NOT THE COURT HAS DISCRETION TO ENLARGE TIME TO FILE PROCESSES IN ELECTION MATTERS

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There is no statutory provision for the elongation of time within which processes in election matters can be filed. Thus, the court has no discretion to grant enlargement of time even when sought for by a party who failed to file a process within the allowed time. Accordingly, failure to appropriately comply with the provisions of the relevant laws, rules or practice directions in an election matter with regards to time for filing processes, is fatal to the case of the defaulting party. See generally, the cases of LOKPOBIRI VS. A. P. C.  (2021) 3 NWLR (PT. 1764) 538 (SC); OMISORE VS. AREGBESOLA (2015) LPELR – 24803 (SC); OBIORAH VS. EMEKA & ORS (2015) LPELR – 41575 (CA); OLUFEMI VS. INEC (2009) 32 WRN 105 @ 138; OHOCHUKWU VS. EMEREGWA (1999) 5 NWLR (PT. 602) 179 and PDP VS.  INEC (2014) 17 NWLR (PT. 1437) 525@ 553 – 554. Per – M.B IDRIS JCA

 

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NOTICE OF APPEAL – WHEN TIME STARTS TO COUNT TO FILE A NOTICE OF APPEAL

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Section 285(11) of the 1999 Constitution of the Federal Republic of Nigeria provides that: “…from the date of delivery of the judgment appealed against.”-Per – M.B IDRIS JCA

 

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DEFECTIVE NOTICE OF APPEAL – CONSEQUENCE OF A DEFECTIVE NOTICE OF APPEAL

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A Notice of Appeal is the originating process of any appeal and where it is found to be fundamentally defective, the entire appeal becomes a nullity. The originating process in all appeals is the Notice of Appeal and once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain the appeal in whatever form. See the case of OLOWOKERE VS. AFRICAN NEWSPAPERS (1993) 5 NWLR (PT. 295) P. 583.  In the very recent Supreme Court case of UNIVERSAL PROPERTIES LTD VS. PINNACLE COMMERCIAL BANK & ORS (2022) 12 NWLR (PT. 1845) PAGE 523, it was held per Okoro, JSC that:

It is not in doubt that a notice of appeal, being an originating process in an appeal process, is a very important document. It is the foundation of an appeal. If it is defective, the appellate court has no choice than to strike it out on the ground that it is incompetent. I need to emphasis that the question of whether or not a proper notice of appeal has been filed in court is a question which touches on the jurisdiction of the appellate court.  If no proper Notice has been filed, then there is no appeal for the court to entertain. See FBN PLC V TSA INDUSTRIES LTD (2011) 15 NWLR (PT. 1216) 247, ANADI V OKOTI(1972) 7 SC PAGE 57, CENTRAL BANK OF NIGERIA V OKOJIE (2004) 10 NWLR (PT. 882) 488, OLARENWAJU V BON LTD (1994) 8 NWLR (PT. 364) 622, ABUBAKAR V WAZIRI (2008) 14 NWLR (PT. 1108) 507. Per – M.B IDRIS JCA

 

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INTERPRETATION – PRACTICE DIRECTIONS MUST BE INTERPRETED WITHOUT RECOURSE TO THE INTERPRETATION ACT

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Finally, In A. C. N. VS. NOMIYE (2012) 7 NWLR (PT.  1300) 568 588 – 589 and PDP VS. INEC (2014) 17 NWLR (PT. 1437) 525, 533 F – G, 5,44 C – E 571 A – G, the Court of Appeal and the Supreme Court respectively, held that the practice directions are sacrosanct and contain only mandatory provisions which must be interpreted without recourse to any other document such as the Interpretation Act. Per – M.B IDRIS JCA

 

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RIGHT OF ACCESS TO COURT: ATTITUDE OF THE COURTS TOWARDS A CITIZEN’S RIGHT OF ACCESS TO COURT

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The Appellants has cited the case of AKINYEMI & ANOR VS.  BANJOKO (2017) LPELR – 42377 (CA) PAGE 39 – 41 PARAS D, where the Court of Appeal relied on the dictum of Pats-Acholonu, JSC in the case of LADEJOBI VS. OGUNTAYO (2004) 18 NWLR (PT. 904) PAGE 149 AT 178 and held that a court must do everything it legitimately can to uphold a citizen’s right of access to the court, save where there is a commanding or compelling reason not to do so. Per – M.B IDRIS JCA

 

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LOCUS STANDI – MEANING OF LOCUS STANDI

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The issue of locus standi is a very fundamental matter and goes down to the root of the jurisdiction of the court. In the Supreme Court case of OKWU  ANOR VS. UMEH  ORS  (2015) LPELR – 26042(SC) PP. 31 – 32 PARAS. D – D, it was held per Galadima, JSC that:

“The term locus standi connotes the legal capacity to institute proceeding in a court of law.  It is used interchangeably with the term standing or title to sue, It is often an aspect of justifiability and also an issue of jurisdiction. If a plaintiff is not competent because he has no locus standi to bring an action, the Court would, in turn be incompetent and without jurisdiction to entertain the plaintiff action. See ADESANYA v.  PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (1981) 1 NCLR 358 (2001) FWLR (Pt. 46) 859; OWODUNNI v. REGISTERED TRUSTEES OF C. C. C. (2000) FWLR (Pt. 9) 1455, (2000) 10 NWLR (Pt.  675) 315. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the Court and not on the issues he wishes to have adjudicated. In other words, the locus standi to sue does not depend on the success or merits of claim. That is, it is a condition precedent to a determination in the merits. Consequently, if a plaintiff has no locus standi to sue, it is not necessary to consider whether or not there is a genuine case on the merits. His case ought to be struck out as being incompetent.  ADESANYA v. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (supra) A. G. AKWA IBOM STATE v.  ESSIEN (2004) 7 NWLR (Pt. 872), 288.

In the case of DANIEL VS. INEC & ORS (2015) LPELR – 24566 (SC) PP. 47 PARAS. A, it was held:  Locus standi denotes the legal capacity to institute proceedings in court. It is a threshold issue that goes to the root of the suit. On no account should the merits of the case be considered before locus standi is decided. Locus standi affects the jurisdiction of the court.  Consequently, if the plaintiff does not have locus standi to institute the suit the court would have no jurisdiction to entertain the suit. Usually, it is the plaintiff that is questioned as to whether he has locus standi.” Per – M.B IDRIS JCA

 

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DISCRETION OF COURT – THE COURTS CANNOT EXERCISE DISCRETION WHEN A STATUTE PROVIDES AS TO WHO HAS LEGAL CAPACITY TO INSTITUTE AN ACTION

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In the case of TARZOOR VS.  IORAER & ORS (2015) LPELR – 25975 (CA) PP. 92 – 93 PARAS. E, the Court of Appeal held per Pemu, JCA thus:

“However, where a Statute stipulates a provision, which ex facie carries a mandatory force, the courts are rendered paralyzed to exercise any discretion in whatever guise to abort it. The provisions of the Electoral Act are, as it relates to Election Petitions SACROSANCT. Election petitions are sui generis. Hence the provisions of the Electoral Act 2010 (as amended), regulating all aspects that relate to Petitions and Procedure at the Tribunals, including what must accompany a  Petition remain SACROSANCT. OKE V MIMIKO  (NO. 1) 2014 1 NWLR.pt (1388) 225; KAKA V  DANIELS (2009) 14 NWLR (Pt. 1161) 416 at 427.”  From the above cited case, it is clear that when a statute makes a provision as to who has the legal capacity to institute an action, the court lacks the discretion to be swayed on the argument of the interests of the common man or a person driven with passion. The court must hear only the persons who are empowered and recognized by law to initiate such matters. Per – M.B IDRIS JCA

 

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LOCUS STANDI – LEGAL CAPACITY TO FILE AN ACTION IN ELECTION MATTERS

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This is a pre-election matter and Section 29(5) of the Electoral Act 2022 (as amended) provides that:

“An aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirement to contest the election is false, may file a suit at the Federal High Court against the candidate seeking a declaration that the information contained in the affidavit is false.” 

From the above provision, it is clear that the sky is not the limit for the citizens of Nigeria when it comes to the right to challenge the candidacy of the winner of the primary elections of a political party. Emotions cannot confer legal capacity to file an action in this regard. Only an aspirant that is, someone who also participated in the election process can challenge the candidacy of the winner of the said primaries. The Appellants had themselves stated over and over again that they knew they had no locus standi to institute the action, however, they have decided to blame the 4 th Respondent for their incapability and inability to challenge the candidacy of the 3 rd Respondent. The law cannot gift the Appellants the locus standi they so greatly desire and wish to have only because they are “stakeholders in the political process”they are card carrying members of the 2 nd Respondent and delegates. Per – M.B IDRIS JCA

 

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PRELIMINARY OBJECTION – MEANING AND PURPORT OF A PRELIMINARY OBJECTION

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In the case of DARU & ORS VS. UMAR (2013) LPELR – 21905 (CA) PP. 23 – 24 PARAS. F, it was held per Ige, JCA:

Now the law is settled that the aim and or intendment of a Notice of Preliminary objection isto terminate in limine the life of an action or to  bring a suit or matter to an abrupt end due to  obvious defect or incompetence of the action. See CHIEF U. M. EFET VS INEC & ORS (2011) 3 SC 63 at 76 I-77A where the Supreme Court per I. T.  Muhammad, JSC had this to say:-  As has been chronicled above, all the   three Respondents raised Preliminary   objection, argued same and relied on   same as to the competence of this   appeal. The aim/essence of a   preliminary objection is to terminate at  infancy, or as it were to nib it in the   bud, without dissipating unnecessary   energies in considering an unworthy or   fruitless matter in a court's proceedings.

It in other words, forecloses a hearing   of the matter in order to save time. See   YARO VS. AREWA CONSTRUCTION LTD  ORS (2007) 6 SCNJ 418 (2007) 12   SCM (PT. 1) 748.

Also, in the case of OKEREKE VS. MUSA YARADUA (2008) 12 NWLR (PT. 1100) 95, the Supreme Court held that a preliminary objection deals with the competence of the suit or the appeal as the case may be, where if upheld has the effect of terminating the life of the suit or appeal. Thus, from the above cited case, it means that once a preliminary objection is filed and heard, the court has to determine it first before going into the main issue. A preliminary objection when upheld is like a weapon of mass destruction. It eliminates everything in its way. No suit or any issue contained therein can survive the effect of an upheld preliminary objection. Yes, its effect is that brutal! Per – M.B IDRIS JCA

 

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PRELIMINARY OBJECTION – PRELIMARY OBJECTION CAN BE HEARD BEFORE THE SUBSTANTIVE ISSUE HAS BEEN HEARD IN ELECTION MATTERS

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In pre-election matters, Section 285(8) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:

“Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the tribunal or court in any pre-election matter or on the competence of the petition itself is raised by a party, the tribunal or court shall suspend its ruling and deliver it at the stage of final judgment.”

In pre-election matters, a preliminary objection can be heard before the substantive issue has been heard and the ruling on the preliminary objection will be delivered at the time set for delivering the final judgment. I can see that the learned trial judge did this and complied with this provision. Per – M.B IDRIS JCA

 

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PRELIMINARY OBJECTION: DISCRETION OF THE COURT TOWARDS A NOTICE OF PRELIMINARY OBJECTION WHICH SUCCEEDS

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No judge is obligated by law to still go ahead and determine the substantive suit if a notice of preliminary objection had succeeded. If he decides to do so, then great, but if he decides not to, he is still right. Once a preliminary objection succeeds, it lies only within the discretion of the trial judge whether or not he wishes to go ahead to determine the substantive suit or appeal as held by the Supreme Court in the case of CHIEF U. M. EFET VS. INEC & ORS (2011) 3 SC 63 AT 76 I – 77A earlier cited. The learned trial judge is not mandated by any law. He can decide not to waste his time and dissipate his energy on something that has no utilitarian value since the life of the suit has ended abruptly, courtesy the upheld Notice of Preliminary Objection. Thus, the learned trial judge was well within his right when he struck out the suit after upholding the Notice of Preliminary Objection. Per – M.B IDRIS JCA

 

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PRELIMINARY OBJECTION: EFFECT OF A SUCCESSFULLY UPHELD PRELIMINARY OBJECTION

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I do not think the Appellants understand the effect of a successfully upheld Notice of Preliminary Objection. It destroys and terminates everything else in the case. No issue can survive it. Since the issue of the constitutionality of Section 29(5) of the Electoral Act was part and parcel of the suit, it has also been terminated. I will not want to over flog this issue. Per – M.B IDRIS JCA

 

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POWERS OF THE COURT OF APPEAL ACT: INSTANCES WHEN THE POWERS UNDER SECTION 15 OF THE COURT OF APPEAL ACT CANNOT BE INVOKED

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Lastly, with regard to the Appellants’ request that this Court should invoke its powers under Section 15 of the Court of Appeal Act this request cannot be granted mainly for three reasons.

Firstly, the learned trial judge was right when he held that the Appellants had no locus standi to institute the action and the preliminary objection was rightly upheld. Thus, there are no more live issues to be determined.

Secondly, even if I am to ignore the first reason, the Notice of Preliminary Objection filed by the 2 nd Respondent in this instant appeal is also successful and has terminated this entire appeal even though I have still gone ahead within my discretion to resolve the substantive appeal.

The third and last reason is that the 180 days period within which pre-election matters can be heard by the court of first instance as stipulated by law has since lapsed and thus, any re hearing of the matter under Section 15 of the Court of Appeal Act is impossible. Per – M.B IDRIS JCA

 

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EXTANT LAWS: ONLY EXTANT LAWS RATHER THAN REPEALED LAWS SHOULD BE APPLICABLE

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On the second issue raised by the Appellants, I do not know why they are referring to Section 31(5) of the Electoral Act 2010 which has been amended and replaced with Section 29(5) of the Electoral Act 2022. The only laws applicable in the instant case are the extant laws and not repealed laws. What are the extant laws? Section 29(5) of the Electoral Act 2022 provides that only the aspirants have the right and locus standi to file an action or challenge the candidacy of a political party after primary elections. Per – M.B IDRIS JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. The Electoral Act, 2022

2. Interpretation Act

3. Court of Appeal Act

4. Constitution of the Federal Republic of Nigeria 1999 (as amended)

 

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