TIME LIMIT WITHIN WHICH TO APPEAL AGAINST A DECISION IN PRE-ELECTION MATTER; WHETHER TIME CAN BE EXTENDED

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CASE TITLE: APC & ANOR v. AGODA & ANOR (2019) LPELR-47174(CA)

JUDGMENT DATE: 1^ST APRIL, 2019

PRACTICE AREA: ELECTORAL MATTERS

LEAD JUDGMENT: MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on electoral matters.

FACTS

The 1st respondent commenced an action by way of an originating summons in the Federal High Court, Asaba Judicial Division, holden at Asaba. In the said suit, the 1st respondent sought the following reliefs:

“1. A DECLARATION that the Plaintiff is the 1st Defendant’s House of Representatives candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election, the Plaintiff having polled the highest number of votes cast in the 1st Defendant’s House of Representatives Primary Election for Ethiope Federal Constituency of Delta State.

2. A DECLARATION that in view of Section 31(1) and Section 87 (4) (c) (i) and (ii) of the Electoral Act, 2010 (as amended) and Article 14 (ii) of the 1st Defendant’s Guidelines for the Nomination of Candidates for the 2019 General Elections, the 3rd Defendant’s name cannot be forwarded/sent by the 1st Defendant to the 2nd Defendant as the 1st Defendant’s candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election, the 3rd Defendant having not polled the highest number of votes cast in the 1st Defendant’s House of Representatives Primary Election for Ethiope Federal Constituency of Delta State.

​3. A DECLARATION that in view of Section 31(1) and Section 87(4) (c) (i) and (ii) of the Electoral Act, 2010 (As amended) and Article 14 (ii) of the 1st Defendant’s Guidelines for the Nomination of Candidates for the 2019 General Election, 2019, the Plaintiff’s name should have been forwarded/sent by the 1st Defendant to the 2nd Defendant as the 1st Defendant’s House of Representative’s Candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election, the Plaintiff having polled the highest number of votes cast in the 1st Defendant’s House of Representatives Primary Election for Ethiope Federal Constituency of Delta State.

4. AN ORDER that the Plaintiff is the Candidate of the 1st Defendant in the House of Representatives Election for Ethiope Federal Constituency for Delta State in the 2019 General Election.
5. AN ORDER directing the 2nd Defendant to remove the name of the 3rd Defendant in its records as the 1st Defendant’s House of Representatives candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election and replacing the said 3rd Defendant’s name in its records with the name of the Plaintiff.

​6. AN ORDER that the Plaintiff be declared the rightful candidate for Ethiope Federal Constituency of Delta State under the platform of the 1st Defendant and consequently issued a Certificate of Return should the 1st Defendant insist on fielding the 3rd Defendant or any other candidate other than the Plaintiff and the 2nd Defendant accepting such candidature.

7. AN ORDER or perpetual injunction restraining the 2nd Defendant from accepting the name of the 3rd Defendant or any other name, other than the name of the Plaintiff as the 1st Defendant’s candidate for Ethiope Federal Constituency of Delta State for 2019 General Election.”

The 1st respondent’s originating summons was supported with an affidavit of 22 paragraphs. In response to the 1st respondent’s originating summons, the 2nd appellant filed the following processes:

1. A counter affidavit of 16 paragraphs.
2. A notice of preliminary objection in which the Court was urged to strike out the suit for lack of jurisdiction.
3. A motion on notice praying the trial Court to order pleadings because the facts of the case were hostile.

The 1st appellant filed a counter affidavit of 2 paragraphs. The originating summons and the other identified processes filed in the suit were supported with written addresses. After hearing the 2nd appellant’s preliminary objection and the originating summons together, the trial Court overruled the preliminary objection and granted the reliefs sought by the 1st respondent. Appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The issues for determination are:

“1. Whether in view of the evidence before it and the facts and circumstances surrounding the case, the trial Court was not right in law when it held that the 1st Respondent’s suit is not in violation of Section 285 (9) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration 2018).

2. Whether considering the nature of the affidavit and documentary evidence before it, the trial Court was not right in law to have refused to order pleadings.”

DECISION/HELD

In the final analysis, the Court of Appeal dismissed the appeal.

RATIOS:

• ACTION- ORIGINATING SUMMON(S): When the adoption of the originating summons procedure will be inappropriate
• ELECTORAL MATTERS- PRE-ELECTION MATTERS: Time limit within which to appeal against a decision in pre-election matter; whether time can be extended
• EVIDENCE- AFFIDAVIT EVIDENCE: Whether oral evidence must be called to resolve conflict in affidavits; an instance where Court can rely on documentary evidence to resolve such conflicts
• INTERPRETATION OF STATUTE- SECTION 285(9) OF THE 1999 CONSTITUTION (AS AMENDED): Interpretation of Section 285(9) of the 1999 Constitution (as amended) as regards time within which pre-election matters are to be filed and how to determine whether a pre-election matter was filed within time.