Proper Time to File an Interlocutory Appeal in a Pre-Election Matter

CASE TITLE:  TUKUR v. MAGAJI & ORS (2022) LPELR-58847(CA)

JUDGMENT DATE:  11TH NOVEMBER, 2022

JUSTICES:  MOHAMMED AMBI-USI DANJUMA, JCA

BIOBELE ABRAHAM GEORGEWILL, JCA

IBRAHIM WAKILI JAURO, JCA

COURT DIVISION:  ABUJA

PRACTICE AREA:  ELECTORAL MATTERS

FACTS:

Following the outcome of Nasarawa West Senatorial District All Progressives Congress (APC) Primary Election conducted by the 2nd Respondent on 4/6/2022, the 1st Respondent alleged that there was a contravention of the provisions of the Constitution of Nigeria 1999 (as amended), the Electoral Act 2022 and the 2nd Respondent’s Constitution and Guidelines for the Nomination of candidate for the 2023 General election and complained against the resultant declaration of the Appellant by the 10th and 11th Respondent as the winner of the said Senatorial Primary Election. Consequent to the above, the 1st Respondent, who was a candidate in the said Senatorial primary Election and who was dissatisfied with the outcome of the said Senatorial Primary Election approached the trial Court by way of Originating Summons to challenge the outcome of the said Senatorial Primary Election.

The Appellant filed a Memorandum of Conditional Appearance and a Preliminary Objection challenging the jurisdiction of the trial Court to hear and determine the 1st Respondent’s suit and praying for an Order of the trial Court striking out/Dismissing the 1st Respondent as Claimant’s suit for want of jurisdiction on the grounds inter alia that: the trial Court lacks the jurisdiction to take cognizance of, countenance and determine this suit being a matter within the internal affairs of the 2nd Respondent; that the 1st Respondent’s suit was filed outside of the 14 days mandatorily prescribed period for filing a Pre-Election matter under the provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); or alternatively: that the 1st Respondent’s case was premature as the 1st Respondent did not explore the internal mechanisms contained in the Guidelines for Ward Congress issued by the 2nd Respondent before resorting to lower Court, and that the 1st Respondent’s suit does not disclose any reasonable cause of action against the Appellant.

In a similar vein, the 2nd Respondent also filed a Preliminary Objection challenging the jurisdiction of the lower Court to hear and determine the 1st Respondent’s suit.

​However, on 7/9/2022 the Appellant was served with a “subpoena duces tecum ad testificandum” issued on 3/8/2022 by the trial Court to enable the 1st Respondent call one, Omale Samuel, a staff of the 3rd Respondent to produce some documents and also to testify. The learned counsel to the Appellant then objected to the calling of the said witness by the 1st Respondent in view of the pendency of his Notice of Preliminary Objection challenging the competence of the 1st Respondent’s suit.

Also, the learned counsel for the 2nd Respondent also objected to the calling of the witness by the 1st Respondent in view of the pendency of its Notice of Preliminary Objection challenging the competence of the 1st Respondent’s suit.

In response, the learned counsel to the 1st Respondent informed the trial Court that they had their subpoenaed witness who was already present in the trial Court and was ready to testify and that his testimony should be taken first.

In its brief bench ruling, the trial Court overruled the objections by the Appellant and the 2nd Respondent and proceeded to call the subpoenaed witness.

The Appellant was dissatisfied by the procedure and the ruling of the trial, hence he appealed to the Court of Appeal.

By a Notice of Preliminary Objection, the 1st Respondent challenged the competence of the Appellant’s Notice of Appeal and prayed the Court of Appeal to strike it out.

ISSUES FOR DETERMINATION

The Court of Appeal determined the 1st respondent’s preliminary objection based on the following issue:

“Whether this Honorable Court has the requisite jurisdiction to entertain this appeal having regard to the grounds as contained in the 1st Respondent Notice of preliminary objection herein?

The Court of Appeal also considered the merit of the main appeal based on the following issues:

1. Whether the trial Court was not wrong when it issued Subpoena Duces Tecum Ad Testificandum and took the testimony of subpoenaed witness while the Application challenging its jurisdiction was still pending?
2. Whether the trial Court was not in error when it allowed the oral testimony of the subpoenaed witness in an action commenced by Originating Summons?

COUNSEL SUBMISSIONS

Learned Counsel for the Respondent argued that an interlocutory appeal in a pre-election matter cannot be filed during the pendency of the substantive suit before trial Court but can only be filed within 14 days of the delivery of the final Judgment in the substantive suit and contended that the Appellant’s Notice of Appeal against the interlocutory decision of the trial Court is therefore, rendered incompetent by reason of the contravention of the prescription of the law.

In response, Learned Counsel for the Appellant submitted that in law, appeals will lie to the Court of Appeal from the decision of the trial Court on Pre-Election and or Election Matters whether interlocutory or final judgment and contended that it being within the 14 days as prescribed by law, is not premature and therefore, competent to be heard and determined by the Court, and urged the Court to dismiss the preliminary objection for lacking in merit.

DECISION/HELD

In the final analysis, the Court upheld the preliminary objection. On the merit of the main appeal, the Court of Appeal held that it had merit and ought to be allowed but for the upheld preliminary objection.

RATIO

1. ELECTORAL MATTERS – PRE-ELECTION MATTERS: Proper time to file an interlocutory appeal in a pre-election matter

“Now, the provisions of Section 285 (11) of the Constitution of Nigeria 1999 (as amended) has been fairly interpreted to mean any interlocutory appeal in a Pre-Election Matter must await the final determination of the suit by the trial Court and must be filed 14 days after the delivery of the judgment. It follows therefore, in law an interlocutory appeal, which is against any interlocutory decision of the trial Court in a Pre-Election Matter if filed at any time before the final determination of the substantive suit by the trial Court is premature and must therefore, be made to await the final determination of the substantive matter. I agree with the earlier decision of this Court on the interpretation of Section 285 (11) of the Constitution of Nigeria 1999 (as amended). See Akeredolu v. Abraham & Ors (2019) LPELR – 46670 (CA) per Adamu Jauro, JCA (as he then was but now JSC). See also the unreported judgment of this Court in Appeal No. CA/OW/556/2018: Chief Emeka Ihedioha v. PDP & Ors delivered on 29/12/2018 per Emmanuel Agim JCA (as he then was but now JSC). Again, by Paragraph 6 (2) of the Election Judicial Proceedings Practice Directions 2022, it is provided as follows:

“2. In Pre-Election matter, the Appellant shall file in the Registry of the lower Court his notice of appeal within fourteen (14) days from the date of delivery of judgment appeal against.”

Thus, by Paragraph 6 (2) of the Election Judicial Proceedings Practice Directions 2022, which deals specifically and specially with Pre-Election Matters and is in line with the provisions of Section 285 (11) of the Constitution of Nigeria 1999 (as amended), an interlocutory appeal in pre-election matters must await the delivery of the judgment in the substantive suit and must thereafter be filed within 14 days from the date of delivery of the judgment.

From both provisions above, which are very unambiguous in the language used therein, are clear demonstration of and underscore the real essence and place of time in pre-election matters. Time is of essence. Thus, in pre-election matters, trial Courts are enjoined and admonished to hear and determine both the substantive suit, usually commenced by means of Originating Summons, and all or any preliminary objection together and express their opinions and give their decisions on both the preliminary objection and the substantive suit in their final judgment. This saves a lot of time!” Per GEORGEWILL, J.C.A.

• ELECTORAL MATTERS – PRE-ELECTION MATTERS: Time limit for filing an appeal against interlocutory decision in a pre-election matter

“…It is in this wise that our electoral jurisprudence enjoins the hearing of certain interlocutory objections or applications/motions and their determinations alongside the hearing and determination of the substantive case (appeal).

Specifically, Section 285(11) of the Constitution of Nigeria 1999 (as amended) and paragraph 6(2) of the Election Judicial Proceeding Practice Directions, 2022 enjoins that an appeal against an interlocutory decision as herein purportedly done can only be done within 14 days after the judgment complained of.
Clearly, therefore, the instant appeal is not only pre-mature but incompetent and deserves to be struck out.
The condition precedent for its consummation has not occurred. See NKEMDILIM’S CASE – 1962/ALL NLR 581, AKEREDOLU VS ABRAHAM & ORS (2019) LPELR 46670 (CA) and CA/A/OW/556/2018 – CHIEF EMEKA IHEDIOHA VS PDP & others delivered on 29/12/2018.” Per DANJUMA, J.C.A.