Legalpedia Citation: (2023-03) Legalpedia 91677 (CA)

In the Court of Appeal

Fri Mar 31, 2023

Suit Number: SC.CV/304/2023

CORAM

John Inyang OkoroJ SCN

Court of Nigeria Amina Adamu Augie SCN

Uwani Musa Abba Aji SCN

Ibrahim Mohammed Musa Saulawa SCN

Justice of the Emmanuel Akomaye Agim SCN

PARTIES

1. UGWU NEWMAN

APPELLANTS

DENNIS NNAMDI AGBO

2. LABOUR PARTY (LP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The issue is the candidature of the Labour party springing from the primary elections conducted by the party for House of Representatives representing Igbo-Eze North/Udenu Federal Constituency of Enugu State scheduled to hold on the 25th of February, 2023.

The 1st plaintiff being the first Respondent in this appeal claimed to have won the 2nd plaintiff’s primary election for the Igbo-Eze North Federal Constituency after standing as the only Aspirant for the position and securing 30 votes. His name however was not submitted as the 2^nd plaintiff (Labour Party) faced challenges in in submitting his name to the 3^rd Respondents (in this appeal) before it was closed. The 3^rd Respondent herein would not accept his nomination Form for Member, House of Representatives and the affidavit in support of personal particulars (Forms EC13D & EC9 respectively) without order of this Honourable Court. Hence he applied for the said order before the trial court.

Because the defendant who had been served all the processes in the suit refused to appear or answer to the case, the trial Court proceeded to hear the case and delivered judgment granting all the reliefs claimed for in the originating summons.

Upon becoming aware of this judgment, the appellant herein, who was not made a party to the suit, by a motion on notice filed on 20-10-2022 applied for leave of the trial Court to apply to set aside its said judgment of 17-8-2022 and an order setting aside the said judgment.

The Applicant contested that he was the only Aspirant who contested and was duly elected and emerged the winner by Polling 41 votes. He also claimed that the 1st Plaintiff/Respondent did not participate in the Primary, and never participated in any Primary election of the 2nd Plaintiff/Respondent, rather participated in the People’s Democratic Party (PDP) Primary election for the nomination of People Democratic Party (PDP) flagbearer for Igbo-Eze North/Udenu Federal Constituency, House of Representatives held on the 22-5-2022 and monitored by the 3rd Respondent where he scored zero (0) votes.

The National Secretary of the 2nd respondent filed a counter-affidavit denying the above depositions in the affidavit of the appellant herein and therein deposed that the 2nd respondent has complied with the order of the trial Court.

​The trial Court rendered its ruling, holding that since the application is to set aside the judgment of the trial Court on the ground of an alleged fraud committed on it, it ought to have been a fresh action by writ of summons and not by motion on notice. It struck out the application for incompetence. The court of Appeal reaffirmed this decision and left the Appellant dissatisfied hence the instant appeal.

HELD

Appeal struck out

ISSUES

Ø Whether the learned Justices of the Court of Appeal were right when they ignored or and failed to consider the mandatory provisions of Order 56 Rule 8 of the Federal High Court (Civil Procedure) Rules 2019, in affirming the decision of the trial Court striking out appellant’s notice of motion/motion on notice in Suit No: FHC/EN/CS/153/2022, dismissed the appeal in breach of the appellant’s right to fair hearing?

Ø Whether the learned Justices of the Court of Appeal were right in upholding the decision of the trial Court declining jurisdiction to determine the appellant’s notice of motion, held that fresh action is the proper way to impeach judgment obtained by fraud, occasioned a miscarriage of justice?

Ø Whether the learned Justices of the Court of Appeal were right when they failed to consider the legal consequences of not considering or and determine prayer one of the appellant’s Notice of Motion?

RATIONES DECIDENDI

PRE-ELECTION MATTER – TIME FRAME WITHIN WHICH A COURT IS TO DELIVER JUDGMENT IN A PRE-ELECTION MATTER

It is obvious that the suit leading to this appeal is a pre-election matter. S.285(10) of the 1999 Constitution provides that: “A Court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit”. – Per E. A. Agim, JSC

JURISDICTION – THE EXERCISE OF THE JURISDICTION OF THE SUPREME COURT – CONDUCT OF COURTS WHEN AN ISSUE BECOMES ACADEMIC

This Court cannot exercise the general powers given to it by S.22 of the Supreme Court Act in the determination of an appeal before it to exercise a jurisdiction it does not have and the trial Court from which the suit leading to the appeal does not have or no longer has. See Inakoju V Adeleke (2007) NWLR (Pt. 1025) 423.

​Since the jurisdiction to hear the application to set aside the trial Court’s judgment and try the suit no longer exists, then the judgment cannot be set aside and the suit cannot be reheard as part of the pre-election proceedings commenced on 21-7-2022. Therefore, if this appeal succeeds it cannot affect the judgment of the trial Court and it would not yield the outcome desired by the appellant. As it is, the appeal is of no value to him and this lack of value or benefit has rendered the issues for determination lifeless. As this Court held in Imegwu V. Okolocha & Ors (2013) LPELR-19886(SC), Courts do not determine cases on issues that have become lifeless or dead. In Longterm Global Capital Ltd & Anor V Stanbic IBTC Bank Plc (2022) LPELR-58907(SC) 51 this Court restated that “Generally, a case or an appeal is said to be an academic exercise when it would bring no benefit to any party or where there is no live issue in the litigation/claims”.

The law is settled that a Court has no power to engage in the determination of a matter that would not affect the rights and obligations of the parties to the case before it. – Per E. A. Agim, JSC

SUPREME COURT – CONDITIONS FOR THE EXERCISE OF THE JURISDICTIONAL POWERS OF THE SUPREME COURT

“It is trite that the general powers vested in this Court by Section 22 of the Supreme Court Act are to enable this Court to assume jurisdiction over the entire proceedings of the Court of first instance or Court of Appeal and determine a matter in the same manner in which the trial Court would have done or given directive to the Court below to deal with the case in accordance with the powers of that Court. However, before this Court can exercise such powers, certain conditions must exist as follows:

Availability of necessary materials to consider and adjudicate in the matter;

The length of time between the disposal of the action at the trial Court and the hearing of the appeal; and

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.

See Mato v Hember & Ors (2017) LPELR – 42765 (SC), Inakoju v Adeleke (2007) 4 NWLR (pt. 1025) 427 at 691 – 692. From the foregoing, it is clear that the powers granted to this Court in Section 22 of the Act are exercisable where the action is alive and determining it on the merit would serve a useful purpose to the appellant and to obviate inordinate hardship which remitting it back to the trial Court may occasion the appellant.”– Per J. I. Okoro, JSC

COURTS – CONDUCT OF COURTS IN REGARDS TO THE 180 DAYS PRESCRIBED BY THE CONSTITUTION FOR JUDGMENT TO BE DELIVERED

“In construing the 180 days prescribed in Section 285(10) of the Constitution, this Court has variously held that it is immutable, fixed like the rock of Gibraltar or Mount Zion which cannot be moved. It cannot be extended, elongated or stretched beyond what it states. See Marwa & Ors v Nyako & Ors (2012) LPELR – 7837 (SC), Eze v Umahi & Ors (2022) LPELR-59157 (SC), Egbodo v All Progressives Congress & Ors (2023) LPELR – 59973 (SC), Amadi & Anor v INEC & Ors (2012) LPELR – 7831 (SC).

In the circumstance, the suit having expired even before the appeal was entered, it would amount to a total waste of judicial time invoking the powers of the Court under Section 22 of the Supreme Court Act to determine it. It is dead and there is absolutely nothing this Court can do to resuscitate it.” – Per J. I. Okoro, JSC

ACADEMIC EXERCISE – WHEN A MATTER CONSTITUTES ACADEMIC EXERCISE

It is a fundamental principle that a Court of law does not have the power to determine matters that would not affect rights and obligations of the parties – Per A. A. Augie,JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. Federal High Court (Civil Procedure) Rules 2019
4. Supreme Court Act

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