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:
- “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.
- 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.
- 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.
- 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:
- “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).
- 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).
- 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:
- “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?
- 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.
Similar submissions were made by learned Counsel separately on behalf of the 2nd and 3rd Respondents, respectively. Meanwhile, learned Counsel for the 3rd Respondent further contended that the provisions of Section 285(9) of the Constitution which states that every pre-election matter must be filed within 14 days of the occurrence of the event/decision or action complained of, relates to all pre-election matters including pre-election matters in connection with Local Government Elections. Learned Counsel further submitted that the Constitution has not excluded any category of pre-election matter from the effect of Section 285(9) and (12) of the Constitution.
In the reply brief filed on behalf of the Appellant on the 28th day of July, 2021, learned Counsel contended that the scope of Section 285(14) of the Constitution is limited to three (3) compartments, to wit: (a) an aspirant who complains that any provisions of the Electoral Act; or (b) any Act of the National Assembly regulating the conduct of primaries of political parties; and (c) the provisions of the guidelines of the political parties for the conduct of party primaries has not been complied with by the party in respect of selection or nomination of a candidate for an election. Learned Counsel submitted that the use of the word ‘OR’ in Section 285(14) of the Constitution to qualify the first and second compartments, shows that the first and second compartments are disjunctive and occurrence of either of the two may qualify for pre-election matter, while the use of the word ‘AND’ for the second and third compartments shows that they are conjoined and stand together. Learned Counsel insisted that Section 285 does not apply to the present case since the circumstances leading to the present case was in connection with the Local Government Election conducted under the AKISIEC Law.
Learned Counsel further submitted that the provisions of Section 19 of the AKISIEC Law cannot apply to the instant case since the provisions did not state the particular Constitution whose provision on procedure should be resorted to; and that the provision in the Constitution for the time limit for the hearing of election related cases came into force in 2017 whereas the AKISIEC Law was made in 2007. The decision in ALI V. ALBISHIR [2008] 3 NWLR (Pt. 1073) 94 at 145, ELABANJO V. DAWODU [2006] 15 NWLR (Pt. 1001) 76 at 138 were relied upon to support the contention that the law cannot apply anticipatorily and that commonsense should be applied in interpreting the law to bring out the real intention of the law makers. Learned Counsel further contended that the reliance by the Respondents on the provisions of Section 49 of the AKISIEC Law and Akwa Ibom State Election Petition Procedure Rules, 2017 is misconceived. He submitted that the present case does not emanate from an Election Petition Tribunal to the lower Court, the provisions of the Rules and Section 49 of the AKISIEC Law cannot therefore apply.
RESOLUTION
I have carefully considered the issues crafted by the learned Counsel on behalf of the respective parties in this appeal, and I believe that the third issue nominated by the Appellant is capable of resolving this appeal. It is obvious that, from the arguments canvassed by the learned Counsel for the respective parties on the live issue identified in this appeal, the primary task before this Court is to undertake a microscopic examination of the relevant provisions of the Constitution, and if necessary, the provisions of other applicable statutes and laws, in order to determine if the time-limit prescribed for the hearing and determination of pre-election matters under Section 285 of the Constitution extends to cover pre-election matters in connection with Local Government Elections. Of the fourteen subsections contained in Section 285 of the Constitution, only Subsections 12 and 14 are relevant for the purpose of our discourse and they provide as follows and I quote:
“(12) An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.
(14) For the purpose of this section, “pre-election matter” means any suit by:
(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”
The pith of the argument canvassed by the learned Counsel for the Appellant is to the extent that since the Appellant’s complaint in this case borders on pre-election matter in connection with the Akwa Ibom State Election, the provisions of Section 285(12) of the Constitution prescribing time limit for the consideration, determination and disposal of an appeal, cannot apply. According to learned Counsel, the pre-election matters referenced in Section 285(12) and (14) of the Constitution are closed and not open-ended to accommodate pre-election matters in the context of Local Government Election and the aforesaid provision is limited to a suit brought in relation to the circumstances outlined in Section 285(14)(a) of the Constitution. On the other side of the divide, the Respondents took the stance that the scope of the pre-election matters referenced in Section 285(12) and (14) of the Constitution can accommodate pre-election matters in connection with Local Government Election, especially since the Appellant is challenging the guidelines for the selection of the candidate for the primary election of the Local Government. In addition, the Respondents submitted that, by the tenor of Sections 19 and 48 of AKISIEC Law, the time limits prescribed in Section 285 aforesaid applies to the hearing and determination of pre-election matters arising from Local Government Elections.
The law is well settled that where a provision of a statute or law is clear and unambiguous, the duty of the Court will be limited to construing the clear provisions by giving the plain words their natural and ordinary interpretation. In this respect, the Court will not embark on a voyage of discovery; a judicial inquiry terminates once it is evident that the statutory language and legislative intent are clear, plain and unambiguous. See AMAECHI V. INEC [2008] 5 NWLR (Pt. 1080) 227 SC; AROMOLARAN V. AGORO (2014) LPELR – 24037 (SC). In this case therefore, it is beyond dispute that a literal interpretation of the provision of Section 285(12) of the Constitution portends that any appeal against the decision of a trial Court to the Court of Appeal in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal. It is noteworthy that the learned Counsel for the respective parties are ad idem on the effect of the referenced provision, however their disagreement is as to the applicability to the circumstances of the instant case.
Now, Subsection 14 of Section 285 of the Constitution gives a direction as to the scope of application of the entire section. Evidently, there is no dispute that paragraphs (a) and (b) of Subsection 14 do not apply to the factual circumstances of the instant case. The said paragraphs border on any suit brought by an aspirant or a political party, as the case may be, challenging the actions, decisions or activities of the Independent National Electoral Commission (“INEC”) in respect of participation in an election or where the complaints relate to non-compliance with the Electoral Act or any Act of the National Assembly regulating elections in Nigeria, with respect to selection, nomination of candidates and participation in an election; timetable for an election, registration of voters and other activities in respect of preparation of an election. Simply put, the provisions only deal with situations where the action or decision of INEC, gives rise to the cause of action in respect of which the judicial intervention of the Court is being sought. In this case, the Appellant was clearly not challenging the actions, decisions or activities of INEC in respect of events relating to an election conducted by it; rather, from the Appellant’s questions and reliefs sought at the trial Court, which I have earlier reproduced in this judgment, his grouse relates to the decisions and actions taken by the 2nd Respondent in connection with primaries held for the nomination of 2nd Respondent’s flag bearer for 2020 Local Government Elections in Akwa Ibom State.
This then brings me to the provisions of Section 285(14)(a) of the Constitution, which is being touted by the Respondent to be applicable to the factual circumstances of this case. It is noteworthy that, unlike the other paragraphs which border on suit relating to complaint on the decision or action of INEC, paragraph (a) of Section 285(14) of the Constitution, accommodates as pre-election matter such other suits brought by an aspirant complaining about non-compliance with provisions of the Electoral Act OR any Act of the National Assembly AND provisions of guidelines regulating the conduct of primaries of political parties. I believe the drafters of the Constitution thought it right and proper, and for good reason too, to use the word “OR”, a disjunctive word and “AND”, a conjunctive word, in delineating the circumstances in which a suit can be deemed to be a pre-election matter under the said paragraph. It shows that the deliberate intention of the drafters that only a suit wherein an aspirant is complaining about the non-compliance with the provision of the Electoral Act or any Act of the National Assembly which regulates the conduct of primaries of political parties, conjunctively with the guidelines of a political party for conduct of party primaries, can suffice as a pre-election matter under this paragraph. By the tenor of this provision, it is not sufficient that the complaint relates to only non-compliance with the Electoral Act (or any other Act), there must also be a complaint relating to non-compliance with the provisions of the guidelines of a political party for the conduct of party primaries. In addition, for a suit to be deemed a pre-election matter under this paragraph, the non-compliance with the Electoral Act (or any Act) and the guidelines of a political party, must specifically be in relation to the provisions regulating the conduct of party primaries.
I am mindful of the fact that the learned Counsel for the 1st and 2nd Respondents have separately relied on the provisions of Sections 19 and 48 of the AKISIEC Law to further argue that Section 285(12) of the Constitution will apply to pre-election matters in connection with Local Government Elections in Akwa Ibom State. Section 19 of the AKISIEC Law reads:
“The procedure to be adopted in the election of councilors and chairman shall be as provided by the constitution and the Electoral Act.”
On the other hand, Section 48 of the AKISIEC Law provides as follows and I quote:
“The practice and procedure applicable in cases of election petitions under the Electoral Act shall mutatis mutandis apply to the hearing and determination of election petitions arising from Local Government Election.”
It is instructive to state that the above provisions were construed by the Calabar Judicial Division of the Court of Appeal (Coram: Owoade; Abiriyi and Shuaibu, JJCA) in a recent decision delivered on Thursday, the 30th day of September, 2021, in BASSEY V. PDP & ORS (2021) LPELR – 55714 (CA), an appeal similar to the instant case, bordering on suit relating to Local Government pre-election matters. In this case, the Appellant therein had commenced an action seeking to invalidate the nomination of the 2nd Respondent as the 1st Respondent’s flagbearer in the Councillorship election seat in Afaha Ward 2, Essien Udim in the Local Government Elections scheduled to hold in October, 2020. The trial Court reached the conclusion that the Claimant had no locus standi to challenge the outcome of the primaries and the suit was struck out for want of jurisdiction. Upon appeal, and when the appeal came up for hearing on 24th day of June, 2021, a day after the present appeal came up before the same Panel of Justices of the Court of Appeal, Calabar Judicial Division, on the 23rd day of June, 2021, the Court, suo motu raised an issue as to whether the provisions of Section 285 of the Constitution shall apply to Local Government pre-election matters; and directed parties to file written addresses in respect of the issue so raised. While considering the effect of Sections 19 and 48 of the AKISIEC Law, the lower Court held as follows particularly at pages 13 to 16 of the Law Report:
“To begin with, the above provisions deals with post-election cases as against pre-election matters which is the bedrock of the present appeal. This is apparent from the wordings of Section 49 of the AKISIEC law that states that-
‘149 – Every Local Government election petition shall be determined within thirty days from the date of commencement of hearing.”
The next germane issue is whether Sections 19 and 48 of the Akwa Ibom State Independent Electoral Commission Law can inferentially be applied as a law made by the National Assembly regulating elections in Nigeria? The answer is definitely no in view of the separate and distinct legislative competence of the States and National Assemblies. By virtue of Section 4(2) of the Constitution, the National Assembly is conferred with powers to make laws for peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative list set out in Part I of the Second Schedule to the Constitution. Item 22 of the Exclusive Legislative List emphatically states as follows:-
“22 – Election to the offices of President and Vice President or Governor and Deputy Governor, any other office to which a person may be elected under this Constitution, excluding election to Local Government Council or any office in such council.”
In the light of the above, it is ultra vires the Akwa Ibom State House of Assembly to legislate either directly or indirectly in an area or subject matter listed in the Exclusively Legislative List. Conversely, the provisions of the Electoral Act cannot surreptitiously be made to apply to Local Government Elections and to that extent; Sections 19 and 48 of the Akwa State Independent Electoral Law, 2007 is also inconsistent with the provisions of Section 87 of the Electoral Act, 2010 (as amended) dealing with the nomination of candidate by parties. And Section 4 (5) of the Constitution provides that if any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.
Now having resolved that Section 285 particularly Subsections (9)-(14) has no affinity and or relationship with Local Government Elections and that item 22 of the Exclusive Legislative List clearly excluded elections to a Local Government Council, the suit giving birth to this appeal, being a pre-election matter is not time bound or limited by any statute as regards to time of filing the suit and determination. Thus, it is only post local government election that shall be determined within thirty (30) days from the date of commencement of hearing under Section 49 of the AKISIEC Law, 2007…”
It is therefore obvious that, unlike in the instant appeal, where the lower Court had summarily struck out the Appellant’s appeal on the ground that the appeal had lapsed in view of Section 285 of the Constitution, and without considering the limited scope of that section and its application to the factual circumstances of the case before it. The Court in BASSEY V. PDP & ORS (supra) invited the parties to address it on the vexed issue and consequently reached a decision that Section 285 of the Constitution does not apply to Local Government pre-election matters.
The lower Court in BASSEY V. PDP & ORS. (supra), obviously proceeded on the proper course and reached the right decision that the provisions of Sections 19 and 48 of the AKISIEC Law cannot operate to make the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) become applicable to Local Government pre-election matters. First, even though Section 19 of AKISIEC prescribed that the procedure to be adopted in the election of councilors and chairman shall be as provided by the Constitution and Electoral Act, it is my firm view that this provision is ultra vires, the State Assembly in enacting the law went beyond its legislative limits and competence, the law as enacted therefore has no leg to stand since both the Constitution and the Electoral Act did not contain any provision in relation to election of councilors and chairman into Local Government Councils.
In the recent decision of this Court, where I had the privilege of preparing the leading judgment, the position has been settled. In our decision in BARRISTER ILIYA IBN ALIYU V. ALL PROGRESSIVES CONGRESS & ORS. SC/CV/2022, delivered on the 18th day of February, 2022 we held the view that the elections contemplated by the Constitution and the Electoral Act are elections into Area Councils, based on a combined interpretation of Section 3(6) of the Constitution, which provides for 778 Local Governments and six (6) Area Councils; Section 318 of the Constitution which defines “Area council” meaning each of the administrative areas within the Federal Capital Territory, Abuja; Section 103 of the Electoral Act, which provides for election into Area Council and Section 156 of the Electoral Act which also contains the definition of Area Council, as reflected in Section 3(6) of the Constitution.
I must be quick to add that even though by virtue of Item 11 of the Concurrent Legislative List contained in Part II of the Second Schedule to the Constitution, the National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a local government council, as at the time relevant to the present appeal, the National Assembly has not exercised its powers to make such laws regulating the elections to a Local Government Council. As clearly stated above, the Electoral Act only contains provisions regulating the procedure for election into Area Councils and not Local Government Councils.
Therefore, I must state it expressly that no provision is contained in the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act relating to the procedure to be adopted in the election of Councilors and Chairmen into Local Government Council (different from Area Council), the provisions of Section 19 of the AKISIEC Law have no leg to stand and by this token therefore, cannot make the provisions of Section 285 of the Constitution apply to Local Government pre-election matters. Section 48 of the AKISIEC Law relates to hearing and determination of election petitions arising from Local Government Elections, it is irrelevant and inapplicable to the instant case.
I do not think the Appellant’s suit at the trial Court and consequential appeal to the lower Court fall within the definition of pre-election matters under Section 285(14) of the Constitution. As earlier stated, the Appellant’s suit at the trial Court does not relate to any complaint that there is non-compliance with any of the provisions of the Electoral Act and the 2nd Respondent’s guidelines for conduct of party primaries for the 2020 election into the office of the Chairman of Abak Local Government of Akwa Ibom State. Therefore, without seeking guidance from anywhere else, the only reasonable inference is that the Appellant’s suit, not being a suit envisaged by Section 285(14) of the Constitution, cannot be caught by the prescribed time limit of sixty (60) days under Section 285(12) of the Constitution. The learned Justices of the lower Court certainly erred in law in summarily striking out the Appellant’s appeal.
The sole issue engaged for discourse in this appeal, is hereby resolved in favour of the Appellant.
Nevertheless, before drawing the curtain on this appeal, I must be quick to add that, in view of the factual circumstances of the instant appeal and the state of the law, the question is whether the lower Court has jurisdiction to entertain an appeal against the decision of the trial Court on pre-election matters springing from local Government elections. I believe it will be necessary that this issue be argued, and a definite pronouncement made thereon, especially in view of our recent decision in BARRISTER ILIYA IBN ALIYU V. ALL PROGRESSIVE CONGRESS & ORS. (supra).
I must hold that, the Appellant’s appeal is meritorious, and is hereby allowed. The decision of the lower Court, striking out the Appellant’s appeal is hereby set aside. The Appellants appeal is remitted to the President of the Court of Appeal to constitute another panel to hear and determine this appeal.
Parties shall bear their respective costs.
SC.CV/476/2021
