CASE TITLE: OJO v. APC & ORS (2022) LPELR-58723(CA)
JUDGMENT DATE: 7TH OCTOBER, 2022
PRACTICE AREA: ELECTORAL MATTERS
LEAD JUDGMENT: MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
SUMMARY OF JUDGMENT:
INTRODUCTION:
The appeal borders on pre-election matters.
FACTS:
This appeal is against the judgment of the Federal High Court, Ado-Ekiti Division, holden at Ado-Ekiti delivered on the 4th day of August 2022 by Hon Justice Babs O. Kuewumi in Suit No. FHC/ABJ/CS/151/2022.
It was the case of the Appellant that he was an aspirant who contested the gubernatorial primary election in Ekiti State conducted by the 1st Respondent on the 27th day of January 2022. That he and the 2nd Respondent and other 8 (eight) aspirants contested the said primary election and at the close thereof, the 2nd Respondent was declared the winner. Dissatisfied with the results declared by the 1st Respondent, the Appellant as Plaintiff instituted a suit via a writ of summons in the Federal High Court, holden at Abuja seeking a declaration that the 1st Defendant’s gubernatorial primaries for 27th January 2022 is vitiated by gross irregularities and fundamental non-compliance with the 1st Defendant’s party guidelines regulating the conduct of the said party primaries, the Electoral Act and the Constitution of the Federal Republic of Nigeria 1999 (as amended) and therefore void and of no effect whatsoever amongst other reliefs.
The Appellant’s case was eventually transferred to Ado-Ekiti Division of the Federal High Court, holden at Ado-Ekiti, which delivered a reserved judgment after hearing some applications, preliminary objections, the evidence of the Appellant and his witness and the addresses of the learned counsel for the contending parties. In the judgment, the preliminary objection of the 1st Respondent was upheld and the Appellant’s case was struck out for want of jurisdiction. Dissatisfied, the Appellant lodged an appeal at the Court of Appeal.
At the Court of Appeal, the 1st and 2nd Respondents filed preliminary objections against the appeal. The 1st and 2nd Respondents prayed that the appeal is dismissed/struck out for being incompetent the subject matter of the appeal being mere academic exercise and for want of diligent prosecution. The 1st Respondent premised his objection on various grounds one of which was that the Appellant’s brief of argument was not filed within time. The 2nd Respondent’s objection was also premised on similar grounds to that of the 1st Respondent.
ISSUES FOR DETERMINATION:
The Court of Appeal considered the merits of the 1st Respondent’s preliminary objection but struck out that of the 2nd Respondent for being premature.
On the merits of the appeal, the Court of Appeal considered the following issues thus:
1. Whether or not the trial Court was right in not ruling on the competency of the 1st Respondent’s preliminary objection before delving into its merits.
2. Whether or not the trial Court was right in striking out the appellant’s suit on the ground of lack of the identity of Counsel who signed the statement of claim.
3. Whether or not the trial Court was right in striking out the Appellant’s suit without going into the merits thereof, having regard to the provisions of Section 285(8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).”
DECISION/HELD:
On the whole, the preliminary objection of the 1st Respondent was upheld. Thus, the appeal was dismissed for lack of diligent prosecution. However, the Court went ahead to consider the merits of the appeal and struck same out for want of jurisdiction holding that the Appellant’s suit at the trial Court has become statute-barred by effluxion of time and the appeal has become academic.
RATIOS:
- PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION – Whether a preliminary objection raised on appeal must be resolved before hearing the substantive appeal
- PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION – Instance where an objection to the hearing of an appeal can be raised by motion on notice
- ELECTORAL MATTERS – PRE-ELECTION MATTERS – Time for filing brief of argument at the Court of Appeal against an appeal bordering on a pre-election matter; effect of filing appellant brief out of time and without leave of Court extending the time to file same
- CASE LAW – JUDICIAL PRECEDENT/STARE DECISIS – Whether a case is solely an authority for what it decides
- PRACTICE AND PROCEDURE – SIGNING OF COURT PROCESS(ES) – Position of the law where a writ of summons is said to have been properly signed by a legal practitioner but the statement of claim is signed by an unknown person
- ELECTORAL MATTERS – PRE-ELECTION MATTERS – Whether the Court of Appeal can re-hear a pre-election matter where the trial Court fails to deliver judgment within the statutorily stipulated period of 180 days
- PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION – Whether there can be a preliminary objection to a preliminary objection
- INTERPRETATION OF STATUTE – PARAGRAPH 10 OF THE ELECTION JUDICIAL PROCEEDINGS PRACTICE DIRECTION, 2022 – Interpretation of Paragraph 10 of the Election Judicial Proceedings Practice Directions, 2022 as regards filing appellant brief of argument
