Chief Ufikairo Monday Efet V. Independent National Electoral Commission & Ors (2009)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, JCA
This is an appeal against the Judgment of the Federal High Court Abuja in Suit No:- FHC/ABJ/CS/287/07 – CHIEF UFIKAIRO MONDAY EFET VS (1) INDEPENDENT NATIONAL ELECTORAL COMMISSION (2) PEOPLES DEMOCRATIC PARTY (3) HON. CHARLES MBONG, delivered on the 31st day of October 2007 wherein the Court dismissed the Plaintiffs (now Appellant’s) claim for failure to commence the suit timeously.
Briefly, the facts of the case are that the Appellant and the 3rd Respondent contested the primaries of the Peoples Democratic Party (PDP) i.e. the 2nd Respondent for the Ikot Abasi/Eastern Obolo State Constituency in the Akwa Ibom State House of Assembly.
Both the Appellant and the 3rd Respondent claimed that they won the December 2006 primary election conducted. The Appellant claimed that his name was submitted to the Independent National Electoral Commission (INEC) i.e. 1st Respondent but was later surreptitiously substituted with the name of the 3rd Respondent.
The Appellant therefore filed this suit at the lower Court to challenge the substitution on the ground that it was not in compliance with Section 34(1) & (2) of the Electoral Act 2006.
The Learned trial Judge dismissed the Appellant’s suit on the ground that the suit was filed after the Election had been conducted and results declared. He also held that the case had become academic.
Dissatisfied with the said Judgment, the Appellant appealed to this Court with a Notice of Appeal containing three grounds of appeal.
The Learned Counsel for the Appellant formulated two issues for determination as follows:-
“(1) Whether the Appellant’s right of action pursuant to Section 34 (1) and (2) of the Electoral Act 2006 can be extinguished without the express limitation by the constitution or statute or become academic when the subject matter (the election) was still subsisting.
(2) Whether the finding of the fact of the Learned trial Judge to the effect that the suit was filed “10 days after the election had been conducted and the results declared” was not perverse and occasioned a miscarriage of Justice in the light of the fact that the parties in their affidavit and arguments were in agreement that the election was held partly on the 14/4/2007 and fully on 28/4/07 and the trial Court had upheld this fact in its ruling of 17th July 2007.”
The Learned Counsel for the 1st Respondent in his own case also formulated two issues for determination as follows:-
“(1) Whether the case of the Appellant before the Learned trial Judge had not become otiose and academic after it has become clear that the suit, a supposed pre-election matter, was filed 10 days after the election has been held and concluded and the result declared.
(2) Whether the Appellant’s right to action pursuant to Section 34(1) of the Electoral Act 2006 are rights exercisable at legal and equitable principle of law.
The Learned Counsel for the 2nd Respondent formulated only one issue for determination as follows:-
“Whether the lower Court was right in dismissing the Appellant’s claim for failure to commence the action timeously. ”
The Learned Counsel for the 3rd Respondent formulated two issues for determination as follows:-
“(1) Whether the case of the Appellant before the Learned trial Judge had not become otiose and academic after it had become clear that the suit, a supposed pre-election matter, was filed “10 days after the election had been conducted and the results declared” and whether a Court of law had no duty to intervene to stop the abuse of its process and to ensure that the machinery of Justice is not abused.
(2) Whether the Appellant’s right of action pursuant to Section 34(1) and (2) of the Electoral Act 2006 are rights exercisable at large without regard to the observance of both legal and equitable principles of law.”
At the hearing the Learned Counsel for the Appellant and 1st, 2nd and 3rd Respondents adopted their respective briefs of argument
The Learned Counsel for the Appellant also adopted the Appellant’s reply brief of argument to the 1st and 2nd Respondents’ brief of argument on one hand and the 3rd Respondent’s brief of argument on the other hand.
The Learned Counsel for the 1st Respondent as a preliminary issue contended that the Appellant was served with the records of appeal on the 4th day of January 2008 and his brief of argument was filed on 19/2/08 therefore that it is incompetent pursuant to Order 17(2) of the Court of Appeal Rules 2007. He urged that it should be struck out.
On the other hand in his Reply brief of argument the Appellant, referred to the records of the Court and he stated that the Appellant was served with the Record of Appeal on 25/1/08 and not 4/1/08. He went further that the 1st Respondent was equally served on 25/1/08 while the 2nd Respondent was served on 28/1/08 and the 3rd Respondent served 4/1108.
He submitted that the Appellant’s brief is therefore competent. In order to determine whether or not the Appellant’s brief was filed within time, it would be necessary to consider Order 17 rule 2 of the Court of Appeal Rules 2007 which states thus:-
“The Appellant shall within forty-five days of the receipt of the record of Appeal from the Court below file in the Court written brief being a succinct statement of his argument in appeal. ”
According to the record, the period between 25/1/08 when the Appellant was served with the record of Appeal and 19/2/08 when the Appellant filed his brief of argument is 25 days. It is not up to the required 45 days. Therefore the Appellant’s brief of argument was filed within time and it is competent.
In the determination of this appeal I find the issues as formulated by the Appellant apt and relevant, it would therefore be preferred for ease of reference.
Issues 1 & 2 (Taken together)
Whether the Appellant’s right of action pursuant to Section 34 (1) and (2) of the Electoral Act 2006 can be extinguished without the express limitation by the constitution or statute or become academic when the subject matter, the election was still subsisting.
Whether the finding of fact of the Learned trial Judge to the effect that the suit was filed 10 days after the election had been concluded and the results declared was not perverse and occasioned a miscarriage of Justice in the light of the fact that the parties in their affidavit and arguments were in agreement that the election was held partly on the 14/4/2007 and fully on 28/4/07 and the trial Court had upheld this fact in its ruling of 17th July 2007.”
The Learned Counsel for the Appellant referred to the concluding part of the Judgment of the trial Court where it was held as follows:-
“This suit ought to have been filed before the conduct of the election and since it was not it is too late in the day and the only option to me is to dismiss the suit for being academic and I so order.”
He submitted that the right of access to Court is a constitutional right that cannot be taken away except by the express provision of the constitution or statute.
He relied on the following cases:-
– Ugwu & Another vs. Ararume (2007) 12 NWLR Part 1048 Page 365 at 450;
– Ndayako vs. Dantoro (2004) 13 NWLR Part 889 Page 187;
– Afolabi vs. Governor, Oyo State (1985) 2 NWLR Part 9 Page 743 at 755.
He went further in his submissions that the only way that this constitutional right can be deprived an individual is by express provision of the Constitution itself or a Statute.
He relied on the following cases:-
– Sanni VS. Okene Local Government Traditional Council & Another (2005) 14 NWLR Part 944 Page 60 at 74(H);
– Savage vs. Rotibi (1994)10 WACA Page 246;
– Iheanacho VS. Ejiogu (1995) 4 NWLR Part 389 Page 324.
It was also submitted on behalf of the Appellant that everything is lawful and legal except that expressly or impliedly prohibited or limited by law.
Thus unlawful means contrary to law, and illegal means not permitted by law.
He went further that every special limitation must be expressly provided for in a law. And that the Court cannot interpret a law that is not in existence. Neither the Constitution, nor the Electoral Act 2005, nor the Statute of Limitation 1623 nor any limitation law or any other known statute provides that an action pursuant to Section 34(2) of the Electoral Act 2006 must be commenced at least a day to the election.
On the issue of the suit being academic it was submitted on behalf of the Appellant that since the case sought to declare as nullity the unlawful substitution of his name, which if granted would establish the fact that he was the undisputed candidate, then the suit is not academic.
On issue 2 Learned Counsel stated that the Appellant had deposed to the fact that the election though originally scheduled for 14/4/07 could not hold in all parts. Thus it was staggered to 28/4/07 when it was held and concluded. He referred to several paragraphs in the record of Appeal to buttress this point.
In the circumstance, the Learned Counsel for the Appellant urged this Court to invoke it powers under Section 16 of the Court of Appeal Act, to hear the petition as if the case had been brought directly before it.
He submitted that it is within the inherent powers of this Court to decide this case to prevent multiple litigations, and furthermore that if a claim is well made out even if it was not specifically claimed, it can be granted by the Court under the inherent powers of the Court. He relied on the following cases:-
– Okoya VS. Santili (1990) 2 NWLR Part 131 Page 172 at 207;
– Onuaguluchi VS. Ndu (2001) 7 NWLR Part 712 Page 309 at 319;
– Amaechi VS. INEC & Others (2008) 1 SCJN Page 1.
He finally urged that the appeal be allowed.
The Learned Counsel for the 1st Respondent submitted that the Appellant had slept on his alleged rights, and that such rights can no longer be enforced.
He went further in his submission that the introduction of the provisions and application of the statute of limitation in this appeal as basis of the lower Court’s Judgment is tantamount to the introduction of extraneous matter that does not arise from the Judgment. He stated that leave of Court was not sought before the introduction of statute of limitation. He therefore urged that Ground 1 and Issue No. 2 be struck out.
He submitted that the provisions of statutes of limitation were never applied by the trial Court, that the decision was based on equitable principles of laches and acquiescence. He relied on the following cases:-
Igbum vs. Alhaji Nyarinya & Another (2001) FWLR Part 67 Page 250 at 953 ratio 3:
Mkpedem vs. Udo (2001) FWLR Part 66 Page 827 at 832.
Learned Counsel for the 1st Respondent stated that anybody quarrelling with his substitution and who wants to take advantage of the provision of Section 34(1) and (2) of the Electoral Act 2006 must do so timeously and should approach the proper forum. That is to say, if it is pre-election complaint, the Regular Court, and if it is Election Petition, Tribunal.
He also stated that the Election was conducted on 14th April 2007, and the Appellant presented his case a post election matter. He went further that the lower Court was right when it held that the Federal High Court had no business venting into the case which had merely become academic.
Learned Counsel referred to Sections 221 and 229 of the 1999 Constitution of the Federal Republic of Nigeria and submitted that the right of a political party to nominate and sponsor candidates in all elections in Nigeria has never been in doubt.
He relied on the following cases:-
Ugwu vs. Ararume (2007) 12 NWLR Part 1048 Page 367 at Page 484 Paragraph B;
Onuoha vs. Okafor (1983) 2 SCNLR Page 244;
Ossom vs. Ossom (1983) 8 NWLR Part 314 Page 678;
Bakam vs. Abubakar (1991) NWLR Part 199 Page 564;
Dahaltu vs. Turaki (2003) 15 NWLR Part 843 Page 310.
He also submitted that Section 16 of the Court of Appeal Act 2004 is not applicable in this case.
He referred to the case of:-
Amori vs. Iyanda (2008) 3 NWLR Part 1074 Page 250 at 262 to 263 ratio 15.
The Learned Counsel for the 2nd Respondent stated that the Appellant’s suit was predated on a complaint of wrongful substitution contrary to Section 34(2) of the Electoral Act 2006. He went further that the substitution was effected on 12/2/07, two months to the date of election which was scheduled for 14th April 2007, and the Appellant did not file the suit until the 24th April 2007.
He then submitted that time is of the essence in election matters and any aggrieved person seeking redress is required to act timeously. He relied on the case of:-
– Balogun vs. Odumosu (1989) 1 NWLR Part 98 Page 478 at 487.
He also submitted that in as much as the lower Court’s decision was not based on any statute of limitation, the Appellant’s submissions based on statute of limitation goes to no issue and he urged this Court to discountenance it.
He also submitted that in as this Court can exercise its powers under Section 16 of the Court of Appeal Act and Order 18 rule 11 of the Court of Appeal Rules 2007, the circumstances of the instant appeal are not appropriate for the exercise of such powers.
He then urged that the appeal should be dismissed.
The Learned Counsel for the 3rd Respondent on Issue 1 stated that the Appellant portends to anchor his argument on the premise that since the rights he was seeking to enforce was based upon the provisions of Section 34 (1) and (2) of the Electoral Act 2006, and since there is no express provision of the Electoral Act or the Constitution of the Federal Republic of Nigeria stating when or when not to file a pre-action matter, then he was at liberty to file same even after the election has commenced or has been held.
He submitted that that the argument and position of the Appellant on the point is misleading. He went further in his submission that a wrong must not necessarily be remediable only under a known head of law or tort before it is justiceable.
He relied on the following cases:-
Labode vs. Otubu (2001) FWLR Part 43 Page 207 at 213 ratio 13;
Igbum vs. Alhaji Nyarinya & Others (2001) FWLR Part 67 Page 950 at 953.
It was also submitted on behalf of the 3rd Respondent that the conduct of the Appellant in sleeping over his supposed rights until the lis had become extinct or destroyed could also be seen as waiver of right by the Appellant.
He relied on the case of:-
Mpkedem vs. Udo (2001) FWLR Part 66 Page 827 at 832.
He submitted that as at the time this suit was filed, the lis in it i.e. the election had been destroyed and extinguished and life snuffed out of the case.
On the submission of Counsel for the Appellant in which this Court was urged to invoke its powers under Section 16 of the Court of Appeal Act, the Counsel for the 3rd Respondent contended that the fact available in the case by way of affidavit evidence are not sufficient to enable the Court to grant the reliefs of the Appellant.
The Learned Counsel for the 3rd Respondent in his submission on issue 2 contended that the introduction of the provisions and application of the Statute of Limitation as basis of the lower Court’s Judgment is tantamount to introduction of extraneous matter which does not arise from the Judgment and it must be discountenanced.
He also submitted that anybody quarrelling with his substitution and who wants to take advantage of the provisions of Section 34(1) and (2) of the Electoral Act 2006, must do so timeously and should approach the proper Court
He went further in his submission that it is an essential quality of a suit or an appeal that there should exist between the parties a matter in actual controversy which the Court undertakes to decide as a living issue, contest on where there is no contest or where the result of a judicial decision will serve no purpose, then such judicial decision is a mere academic exercise.
He relied on the following cases:-
A. G. Federation vs. ANPP (2004) 5 WRN Page 1 at Page 8;
Action Congress vs. INEC (2007) 18 NWLR Part 1065 Page 74;
Mamman vs. Salaudeen (2005) 18 NWLR Part 958 Page 478 at 500.
Learned Counsel stated that the Appellant went to sleep until the election was held on 14th April 2007 and later woke up from his slumber on 24th April 2007 about 10 days after the election to seek the Court’s intervention to pronounce him as the candidate of an election that has already been held.
He submitted that as at the date this suit was filed, the lis in the suit i.e. election had been destroyed and extinguished and live snuffed out of the case: He went further that the issues in this appeal has become otiose and academic and that it is settled law that the Courts of law would not grant unenforceable orders or reliefs. He relied on the following cases:-
Ekpeyong vs. Nyong (2003) 51 WRN Page 44 at 46; Nigerian National Supply Company Ltd vs. Alhaji Sabana Ltd (1998) 2 NWLR Part 74 Page 23;
A.G. Federation vs. A.N.P.P. (supra)
The Learned Counsel for the Appellant filed Appellant’s reply to the 1st & 2nd Respondents’ briefs of argument He also filed a reply to the 3rd Respondent’s brief of argument.
It must be noted at this stage that the said Appellant’s reply brief was filed on 29/10/08 whereas the 2nd Respondent has abandoned the original 2nd Respondent’s brief filed on 16/10/08 and in its place filed 2nd Respondent’s Amended brief of argument on 9/1/2009 which was deemed properly filed and served on 12/1/09. Therefore there is no reply brief from the Appellant in respect of the 2nd Respondent’s amended brief of argument.
In his reply to the 1st Respondent’s brief of Argument the Learned Counsel for the Appellant contended that a right of action in pre-election subject matter like unlawful substitution cannot be extinguished by the holding of an election. He relied on the following cases:-
Uguwu & Another vs. Ararume & Another (supra);
Amaechi vs. INEC & Others (2008) 5 NWLR Part 1080 Page 227;
Adeogun vs. Fashogbon & 2 Others (2008) 17 NWLR Part 1115 Page 149.
He then urged this Court to hold that the subject matter of the case is still a live issue and that the case is neither academic nor otiose.
In his reply to the 3rd Respondent’s brief of argument the Learned Counsel for the Appellant submitted that the 3rd Respondent’s brief is incompetent because the Appellant’s brief of argument was filed on 19/2/08 and served on the 3rd Respondent on the 21st February 2008, He stated that pursuant to Order 17 rule 4 (1) of the Court of Appeal Rules 2007, the 3rd Respondent had 30 days to file his brief of Argument. But that the 3rd Respondent filed his brief on 28/3/08 which is 8 days outside the period allowed by the rules.
According to records of this Court, the 3rd Respondent has regularized his position as far as the said brief of argument is concerned. By an order of this Court the said brief was deemed properly filed on 15th day of October 2008. Therefore it is competent.
The Learned Counsel for the Appellant referred to the fact that the election was commenced on 14/4/07 and concluded on 28/4/07 and submitted that mere commencement of election proceedings does not and cannot amount to the holding of Election as argued by the 3rd Respondent.
He went further that Election cannot be said to have been held until the declaration of final results and the return of a winner.
He re-iterated his argument that the appeal is not academic and that he did not sleep on his right
He finally urged this Court to hold that the 3rd Respondent did not contest the Election because according to him he was not a candidate.
In this Appeal under consideration the first issue for determination is whether the Appellant’s right of action pursuant to Section 34(1) and (2) of the Electoral Act 2006 can be extinguished without the express limitation by the Constitution or statute or become academic when the subject matter (the election) was still subsisting.
In order to shed light on the controversy between the parties in this appeal, it would be necessary to set out the provisions of Section 34(1) & (2) of the Electoral Act 2006 which states as follows:-
“34(1) A political party intending to change any of its candidates for any election shall inform the
Commission of such change in writing not later than 60 days to the election.
(2)Any application made pursuant to sub section (1) of this section shall give cogent and verifiable reasons.”
It would be recalled that both the Appellant and the 3rd Respondent claimed that they won the December 2006 primary election which was conducted by their party.
The Appellant claimed that his name was submitted to the 1st Respondent i.e. Independent National Electoral Commission (INEC) vide a letter dated 21/12/2006 but was later surreptitiously substituted with the name of the 3rd Respondent by a letter dated 12/2/2007.
He therefore filed this suit at the lower Court to challenge the substitution on the ground that it was not in compliance with Section 34(1) and (2) of the Electoral Act 2006.
In dismissing the appeal the Learned trial Judge held as follows:-
“this suit ought to have been filed before the conduct of the election and since it was not, it is too late in the day and the only option open to me is to dismiss the suit for being academic and I so order.”
The question that comes to my mind at this juncture is that – Is there any time limit for filing a suit in relation to a pre-election matter?
I do not think that there is a time limit for filing a suit in respect of a pre-election matter even though the main election had been conducted.
The right of access to Court is a constitutional right which cannot be taken away except by express provision of the Constitution or the Electoral Act 2006. And I am of the view that the law makers i.e. National Assembly had no intention to oust the Jurisdiction of the Court in respect of Section 34(2) of the said Electoral Act 2006. The law like any other Act of the National Assembly which was enacted in the exercise of its powers under the 1999 Constitution is a statute whose provisions including Section 34 thereof are liable to be questioned in any proceeding of Court of competent jurisdiction in the determination of any question as to the civil rights and obligation of any person in Nigeria.
In my humble view, if the legislature had intended that an action to challenge unlawful substitution must be commenced before the election, it would have been expressly stated so.
The Supreme Court in Ugwu VS. Ararume (2007) 12 NWLR Part 1048 Page 365 at 509 while addressing the issue of Section 34 of the Electoral Act 2006 held as follows:-
Section 34 of the Electoral Act 2006 appears to be a codifying statute. It is codifying because it purports to state exhaustively the whole of the law upon the subject of change or substitution of a candidate nominated for an election by his political party. The legislature attempted to provide a solution to the brazen exercise of power of substituting candidates by a political party for no justifiable cause… The Court has to approach such a codifying enactment in quite a different spirit.”
In the case of Yabugbe vs. C.O.P. (1992) 4 NWLR Part 234 Page 152 at 175 the Supreme Court held:-
“In addition, there is a general rule of construction of statutes that the intention of the legislature must be carried out in construing a statute. This intention can only be understood by looking at the subject matter which the words expressed in the statute are speaking of and the object of the legislature.”
In this appeal under consideration the subject matter is on issue of unlawful substitution.
In dismissing the Appellant’s claims, the Learned trial Judge held that the Appellant slept on his right and did not come to Court timeously. The learned Counsel for the 1st, 2nd and 3rd Respondents all agreed with the decision of the lower Court that the Appellant slept on his right by not coming to the Court timeously
In Ararume vs. INEC & 2 Others (2007) 9 NWLR Part 1038 Page 127 this Court held as follows:-
“…..Section 34 was promulgated and inserted into the 2006 Electoral Act to curb the excesses of political parties. Section 34 of the Electoral Act 2006 is a welcome change as we cannot continue to play hanky panky in our electoral process.”
-In view of the foregoing could the Appellant be shut out when neither the Constitution nor the statute has barred him, and could he be shut out when his election is still intact and yet to be extinguished.
I do not think so.
In dismissing the Appellant’s suit the Learned trial Judge held that the suit had become academic.
In Plateau State of Nigeria vs. Attorney General of the Federation (2006) 25 NSCQR Page 17 at 236 the Supreme Court defined an academic case as follows:-
“A suit is academic where it is merely theoretical, makes empty sound and of no practical utilization value to the Plaintiff even if Judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.”
In my humble view the Appellant’s case is not a case that makes empty sound. It has all the potentials to be beneficial to the Appellant.
In the instant case, the suit was filed on 24/4/07 while the remaining election took place on 28/4/07 and the result declared. The suit was therefore not academic. See:-
– Agbakoba vs. INEC (2008) 12 SCNJ Page 619;
-Adeogun vs. Fashogbon (2008) 17 NWLR Part 1115 Page 149.
The second issue for determination is whether the finding of fact of the Learned trial Judge to the effect that the suit was filed “10 days after the election had been conducted and the results declared” was not perverse and occasioned a miscarriage of Justice in the light of the fact that the parties in their affidavit and arguments were in agreement that the election was held partly on the 14th April 2007 and fully on 28th day of April 2007 and the trial Court had upheld this fact in its ruling of 17th July 2007.
The following facts are not in dispute.
(1) The election was scheduled for the 14th day of April 2007.
(2) On the 14th day of April 2007 the election was held in part of the constituency but could not hold in some parts. The election in the remaining part was rescheduled for the 28th day of April 2007.
(3) The Appellant instituted this suit on the 24th day of April 2007.
(4) On the 28th day of April 2007 the election was conducted in the remaining part of the constituency and the result declared.
The record of appeal in the following instances showed that the parties are in agreement that the election was staggered from 14/4/2007 to the 28/4/2007 when it was concluded.
(1) Paragraph 2(1) and (m) of the 3rd Defendant’s counter affidavit filed on 16/5/07. See page 47 of the Record.
(2) Paragraphs 4 and 5 of the Plaintiff’s counter affidavit to the 2nd Defendant’s preliminary objection. See page 120 of the Record.
(3) Last paragraph, 1st page of the 1st Defendant’s written address dated 23/7/2007. See page 146 of the record.
(4) 2nd to the last paragraph of page 3 of the 3rd Defendant’s written address filed on 26/7/2007. See page 168 of the Record.
(5) Lines 26 – 30 of the 3rd Defendant’s written address at page 173 of the Record.
There is no doubt that after a careful perusal of the available evidence on record, the parties were in agreement that the election was fixed for 14th April 2007 by INEC i.e. the 1st Respondent. The Election was held on that day and concluded on 28th April 2007 in Ikot Abasi Eastern Obolo State Constituency.
In view of the foregoing the finding of the fact by the lower Court to the effect that the case was filed “10 days after the election has been conducted and the result declared” is perverse in view of the affidavit and addresses of the parties to the effect that election was held on 28/4/2007 after the case had been filed.
Consequently issues 1 and 2 are hereby resolved in favour of the Appellant and against the Respondents.
The Appellant urged this Court to invoke its powers under Section 16 of the Court of Appeal Act 1976 to hear the case as if the case had been brought directly before it. He went further that the simple question is whether the purported letter of substitution dated 12/2/2007 contained cogent and verifiable reason for seeking the substitution.
He submitted that if a claim is well made out, even if it was not specifically claimed, it can be granted by the Court under its inherent powers. He relied on the following cases:-
-Okoya vs. Santili (supra).
Onuaguluchi vs Ndu (supra)
Jadesimi vs. Okoties-Eboh (1986) 1 NWLR Part 16 page 264
Williams vs. Williams (1987) 2 NWLR Part 54 Page 66
Onwuka vs. Omogui (1992) 3 NWLR Part 230 Page 393
Amaechi vs. INEC (supra)
The Learned Counsel for the 1st, 2nd and 3rd Respondents submitted that the circumstances of the instant appeal are not appropriate for the exercise of such powers under Section 16 of the Court of Appeal Act 1976.
It was contended on behalf of the Respondents that the facts in Amaechi’s case is different and distinguishable from the present case and the decision and judgment in that case cannot be applied to have the same effect in the present case.
Section 16 of the Court of Appeal Act 1976 provides thus:-
“The Court of Appeal may, from time to time, make any order necessary for determining the real questions in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that court, or in the case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to be reheard by a Court of competent jurisdiction”
In invoking its power under Section 16 of the Court of Appeal Act 1976, this Court will have to look at the entire case as a whole and consider the circumstances leading to the letter of substitution dated the 12th day of February 2007.
Unfortunately there are substantial dispute of facts between the appellant and the 3rd Respondent especially as it relates to which of them won the party primaries. The materials placed before the lower Court are not adequate for this Court to resolve the dispute.
Furthermore apart from the foregoing, the decision in Amaechi vs. INEC Supra relied upon by the Appellant is distinguishable from the circumstance of this case. Whereas Amaechi was the proper candidate that contested and won the primaries of the party, the person who replaced him by way of substitution, Omiehia, was not and had never contested the party primaries for the position of Governor. In the present case enough materials were not placed before the Court to determine the actual person that won the primaries in view of the fact that three primary elections were conducted in this case.
In the circumstances, it is my view that this is not an appropriate situation for this court to exercise its powers under Section 16 of the Court of Appeal Act 1976.
In the final analysis, this appeal succeeds and it is allowed. The Judgment of the lower Court which dismissed the Appellant’s case is hereby set aside.
In its place, the Originating Summons filed at the lower Court is remitted to the Chief Judge of the Federal High Court, Abuja for assignment to another Judge to hear and determine the case on its merit without further delay.
There shall be no order as to costs.
Other Citations: (2009)LCN/3499(CA)
