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.

At paragraph 5 of his brief, learned counsel relied on Order 6 Rule 5(4) of the Supreme Court Rules to invite this Court to revisit, depart from or overrule its decision in APC V. UMAR & ORS (2019) 8 NWLR (PT. 1675) AT PAGE 575 which was relied on by the Court below in holding that the suit culminating into the instant appeal was a pre-election matter.

In the final analysis, counsel urged this C ourt to allow the appeal and grant all the reliefs contained in the Notice of Appeal.

A.O AMAGWULA ESQ., settled the 1st Respondent’s brief of argument filed on 18/2/22. Learned counsel for the 1st Respondent submitted a lone issue for determination thus: –

“Whether the Lordships of the Court of Appeal were right in their decision refusing to extend time for the Appellant to appeal in this matter into consideration the circumstances of this case?”

Arguing the lone issue, counsel for the 1st Respondent submitted that at the trial Court, the Appellant was on the same side as the 3rd Respondent in whose favour judgment was delivered. He referred to the Appellant’s counter-affidavit in opposition to the 1st Respondent’s Originating Summons and submitted that the averments contained therein formed the basis of the decision of the trial Court. That it is not open to the Appellant to alter its position at the trial Court by seeking to appeal against the decision it initially consented to. The case of FIDELITY BANK V. THE M.T. TABORA & ORS (2018) LPELR – 44504 (SC).

Counsel submitted that the reliefs sought by the Appellant in the application which is the subject matter of this appeal is a discretionary relief which requires the Appellant to show the Court why same should be granted. He cited in support the cases of IMEGWU V. OKOLOCHA (2013) 9 NWLR (PT. 1359) 347, ELIAS V. ECOBANK (NIG) PLC (2019) 4 NWLR (PT. 1663) 381. It was submitted further that assuming the suit was not a pre-election matter, the Appellant failed to satisfy the conditions for the lower Court to grant its application as it did not give any cogent reason for its failure to appeal against the judgment of the trial Court for two years. Reference was made to the cases of J.M.R. LTD V. M/T MOTHER BENEDICTA (2019) 12 NWLR (PT. 1686) 323, EKPEMUPOLO V. FRN (2019) 11 NWLR (PT. 1684) 462, AGBASO V. IWUNZE (2019) 11 NWLR (PT. 1684) 553. Counsel therefore urged this Court to dismiss the appeal for lacking in merit.

In response to the contention of the 1st Respondent that the Appellant consented to the judgment of the trial Court, it was submitted that it is irrelevant whether or not the Appellant consented to the judgment of the trial Court in light of the jurisdictional nature of the grounds of appeal before the lower Court and the fact that parties cannot confer jurisdiction on a Court. Reliance was placed on APGA V. ANYANWU (2014) 7 NWLR (PT. 1407) 541, ADESOLA V. ABIDOYE (1999) 14 NWLR (PT. 637) 28.

On the contention of the 1st Respondent that the Appellant did not place enough materials before the Court to warrant the grant of the application for extension of time, counsel referred to the affidavit in support of the Appellant’s application for extension of time and submitted that cogent reasons were given for its failure to appeal within time. It was further submitted that the jurisdictional nature of the grounds of appeal in the Appellant’s Notice of Appeal before the Court below constituted sufficient reasons to grant the application. Reliance was placed on ANACHEBE V. IJEOMA & ORS ​ (2014) LPELR – 23181 (SC).

SAMUEL PETER KARGBO settled the 2nd Respondent’s brief of argument filed on 1/3/2021 wherein no issue was distilled for the determination of the appeal. Having not distilled any issue, the 2nd Respondent conceded the appeal and nothing more.

CHIDOZIE OGUNJI ESQ., settled the Respondent’s brief of argument filed on 21/12/2020. The 3rd Respondent distilled a sole issue for the determination of the appeal to wit: –

“Whether the Lordships of the Court below were right in their decision refusing to extend time to appeal in a pre-election matter?”

The 3rd Respondent’s arguments and submissions on the sole issue distilled are in tandem with that of the 1st Respondent. I therefore find it inexpedient to reproduce the said arguments and submissions as that of the 1st Respondent elaborately reproduced above have aptly captured the posture taken by the 3rd Respondent in this appeal.

RESOLUTION

The Appellant has by this appeal ventilated his grievance against the ruling of the Court below refusing to extend the time within which he is to appeal against the judgment of the High Court of the Federal Capital Territory, Abuja delivered on 14th August, 2018. In its ruling, the Court below was of the view that the matter being sought to be appealed against, being a pre-election matter, then the statutory time for the hearing and determination of such appeal had elapsed. The Court consequently declined jurisdiction to grant the application and was of the further view that the appeal had become academic in the absence of jurisdiction.

Now, the appellate exercise to be carried out by this Court is to see whether the Court below was fight in refusing the Appellant’s application for extension of time and whether this Court is imbued with the jurisdictional competence to grant such extension of time within which the Appellant can appeal against the judgment of the trial Court.

By virtue of Sections 6 & 235 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), this Court is the Highest Court in the hierarchy of Courts and without prejudice to the powers of prerogative of mercy of the President and the Governor of a State, the decision of this Court is binding on all Courts and is not subject to review by any other Court or persons. Jurisdiction, it is settled, is a threshold issue which is fundamental and crucial to adjudication. A Court cannot assume jurisdiction to adjudicate in a cause or matter unless its jurisdiction has been properly invoked. It is a radical and crucial necessity for where a Court proceeds without jurisdiction to hear the case, the proceedings so embarked upon by the Court are a nullity ab initio however well conducted the proceedings and brilliantly decided the issues agitated therein are. See ONYEKWULUJE & ANOR V. ANIMASHAUN & ANOR (2019) LPELR-46528 (SC), UTOO V. APC & ORS (2018) LPELR-44352 (SC), MADUKOLU V. NKEMDILIM (1962) SCNLR 341.

On the conditions that must be satisfied before a Court is competent to exercise its jurisdiction in respect of any matter, this Court, Per BAIRAMIAN, JSC (of blessed memory) in the case of MADUKOLU & ORS V. NKEMDILIM (supra) held as follows: –

“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction and (3) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided the defect is extrinsic to the adjudication.”

The Court below refused the Appellant’s application declining jurisdiction by virtue of Section 285(14) (a) – (c) of the Constitution (supra). The law is trite that an Appeal Court is entitled to look at the Record of Appeal and take notice of its contents. See EZE & ORS V. GOVERNOR OF ABIA STATE & ORS (2014) LPELR- 23276 (SC). This will enable the Court to determine its jurisdictional competence or vires to hear the appeal and grant the reliefs sought in the notice of appeal.

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The question is, from the contents of the record of appeal compiled and transmitted to this Court on 24/11/2020, in the event that this Court finds the Court below wrong in holding that the action culminating into the instant appeal is a pre-election matter, can this Court validly entertain this appeal or even grant the Appellant’s application for extension of time to appeal against the decision of the trial Court?

The law is trite that in determining the radical issue of jurisdiction, the Court is bound to examine the claims of the Plaintiff as contained in the originating process igniting the jurisdiction of the Court. The record bears witness that the action culminating into the instant appeal was in the High Court of the Federal Capital Territory, Abuja. A scrutiny of the deposition of facts contained in the affidavit in support of the Originating Summons together with the reliefs sought would reveal that the action or event forming the fulcrum of the 1st Respondent’s complaint at trial happened wholly in Imo State. By the reliefs sought in the suit, the 1st Respondent challenged the powers of the Independent National Electoral Commission (INEC) in monitoring the State, Ward and Local Government Congresses of the Appellant held in Imo State between 20th and 23rd July, 2018. The 1st Respondent also challenged the powers of the Appellant to validly conduct State, Ward and Local Government Congresses of the Appellant held in Imo State of Nigeria between 20th and 23rd July, 2018 without 21 days’ notice given to INEC in line with the provision of Section 85(1) of the Electoral Act, 2010 (as amended).

Flowing from the hills of the above, without delving into the substance of the justiciability or otherwise of the reliefs sought by the 1st Respondent at trial, one would then wonder why the suit was instituted in the High Court of the Federal Capital Territory, Abuja instead of Imo State where the action or event complained about wholly arose.

The importance of parties and of course the Courts adhering to the rules guiding territorial jurisdiction has been emphasized in a plethora of decisions of this Court to wit. See AUDU V. APC (2019) 17 NWLR (PT. 1702) 379 at 398 40, MAILANTARKI V, TONGO (2018) NWLR (PT. 1614) 69 AT 86 – 87, DALHATU V. TURAKI (2003) 15 NWLR (PT. 843) 310 at 342 – 343, IBORI & ANOR V. FRN & ORS (2008) LPELR – 8370 (CA).

The law is settled that a suit should be filed in the High Court of the state in which the facts constituting the cause of action occurred, that it is the High Court of the State in which the events giving rise to the action occurred that has the territorial jurisdiction over the suit, that the High Court of another state in which none of the events or facts occurred has no territorial jurisdiction over the suit. Avoiding the High Court of the State in which the events occurred as done by the 1st Respondent in this appeal, to file a suit in the High Court of the Federal Capital Territory, Abuja in which none of the events giving rise to the suit occurred, amounts to forum shopping and a gross abuse of Court process.

Consequently, the trial Court lacked the territorial jurisdictional competence to have entertained the suit in the first place, hence rendering the decision reached a nullity.

Having held that the decision of the trial Court was a nullity, of what importance would it be to consider the Court of Appeal’s refusal to extend the time within which the Appellant can appeal a void decision? On the other hand, can this Court, being a Court of policy grant an application for extension of time for a party to appeal against a void decision? My answer is in the negative.

I therefore hold the view that the Appellant’s application for extension of time to appeal against the decision of the High Court of the Federal Capital Territory, Abuja would still be refused for want of jurisdiction.

Granting the Appellant’s application to appeal against a judgment delivered in the absence of jurisdiction is unreasonable and confers no utilitarian value. On what amounts to an academic appeal that confers no utilitarian value, see the case of PLATEAU STATE GOVERNMENT V. ATTORNEY GENERAL OF THE FEDERATION (2016) 3 NWLR (PT. 967) 364. Furthermore, enquiring into the correctness of the Court of Appeal’s decision is tantamount to a futile exercise of trying to draw water from an empty well.

In the final analysis, I find no merit in this appeal. Same is hereby dismissed. The suit together with the processes filed right from the trial Court are hereby struck out. Parties are to bear their respective costs.

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SC.CV/884/2020