CHUKWUKELU v. APGA & ORS
CITATION: (2023) LPELR-59795(CA)

In the Court of Appeal
In the Awka Judicial Division
Holden at Awka

ON THURSDAY, FEBRUARY 2, 2023
Suit No: CA/AW/388/2022

Before Their Lordships:

JUMMAI HANNATU SANKEY Justice, Court of Appeal
FREDERICK OZIAKPONO OHO Justice, Court of Appeal
PATRICIA AJUMA MAHMOUD Justice, Court of Appeal
Between
ENGR. UGOCHUKWU CHUKWUKELU Appellant(s)
And
1. ALL PROGRESSIVES GRAND ALLIANCE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. BARR. EBUKA IGWE- Respondent(s)

LEADING JUDGMENT DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.
FACTS
This appeal is against the judgment of the Federal High Court, Awka Division, delivered by H.A. Nganjiwa, J.
On May 24, 2022, the 1st respondent conducted its primary election to nominate its candidates for the 2023 general election, and in particular, to elect a candidate for the election of member representing Idemili South Constituency in the Anambra State House of Assembly. The appellant and the 2nd respondent, along with others, contested as aspirants in the primary election. At the close of the election, the 2nd respondent emerged as winner and was declared the candidate of the party.

Dissatisfied with this outcome, the appellant approached the trial Federal High Court reliefs. The 1st and 3rd respondents each filed preliminary objections to the hearing of the suit. The 1st respondent contended that the suit was statute-barred while the 3rd respondent contended that the appellant, as did the other aspirants, signed an undertaking in a sworn affidavit that he would not challenge the outcome of the primary election in Court, and that by so doing, he had waived his right to file this action.

The preliminary objections were heard simultaneously with the substantive case. At the close of trial, the Court upheld the preliminary objections and struck out the case. The Court proceeded to consider the merits of the case. Thereafter, it also held that the appellant failed to prove his case. The suit was therefore dismissed. Aggrieved, appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
Appellant crafted the following issues for determination:
1. Having regard to the peculiar circumstances of this case, was the learned trial Court right when it upheld the 1st respondent’s preliminary objection to the effect that the appellant’s action is statute-barred?
2. Whether the trial Court was right when it upheld the 3rd respondent’s preliminary objection to the effect that the appellant waived his right and is estopped to challenge the outcome of the 1st respondent’s primary election?
3. Whether the trial Court did not breach the appellant’s right to fair hearing when it refused to allow the Appellant to play video evidence in Court in proof of his case?
4. Whether in all the circumstances of this case, the trial Court was justified that the Appellant did not prove his case on a balance of probabilities and proceeded therefrom to dismiss same?

APPELLANT’S SUBMISSIONS
Under issue one, the learned counsel for the appellant argued that the trial Court made an error in upholding the 1st respondent’s preliminary objection regarding the timeliness of the appellant’s suit. According to the counsel, the trial Court relied on previous cases that were decided under specific circumstances and should not be considered as binding precedents. The counsel referred to the decisions in Bello v. Yusuf and Oni v. Fayemi, where the Supreme Court interpreted Section 285(9) of the Constitution.

Although the Supreme Court held that pre-election matters must be filed within 14 days, the counsel argued that the Court excluded the day of the event and started counting from the day after. Therefore, the 14-day period for the appellant’s case should have expired on June 7, 2022, not June 6, 2022 as decided by the trial Court.

Furthermore, the counsel submitted that the Interpretation Act, specifically Section 15(2), should be applied to interpret Section 285(9) of the Constitution. According to this provision, the day of the event should not be included when calculating the time period.

As an alternative argument, the counsel emphasized the unique circumstances of the case, including the sit-at-home order in the South-Eastern part of the country, which prevented the filing of processes on Mondays. Considering this, the Counsel urged the Court to apply Section 15(2) of the Interpretation Act and set aside the trial Court’s decision that the suit was statute-barred.

Under issue two, the learned Counsel for the appellant confirmed that the appellant entered into an undertaking with the 1st respondent. However, he argued that the appellant’s undertaking was not to litigate the decision of the 1st respondent’s NEC on the choice of the party’s candidate, but rather focused on the process and conduct of the primary election itself.

The counsel asserted that the main argument presented in the trial Court was that the primary election, which resulted in the selection of the 3rd respondent as the candidate for member Idemili South Constituency in the State House of Assembly, took place outside the Constituency in violation of Section 84(5) (c) of the Electoral Act, 2022. The Counsel denied that the appellant challenged the choice of the 3rd respondent as the candidate by the NEC of the 1st respondent. Therefore, it cannot be claimed that the appellant waived their right to take legal action.

Additionally, the Counsel argued that the appellant does not have the authority to waive strict compliance with the statutory process for the nomination of a political party’s candidate, as stipulated in Section 84(5) (c) (i) of the Electoral Act. Consequently, the counsel submitted that the case of Gana V. SDP, which was relied upon by the trial Court, is not applicable to the present case.

Under issue three, the learned Counsel for the appellant argued that after both parties had filed affidavits in accordance with the direction of the trial Court, the appellant submitted an application seeking permission to present the video evidence attached to his affidavits, referred to as Exhibits ‘Ugo 2’ and ‘Ugo 5’, in open Court. It was claimed that on November 9, 2022, when the case was heard, the trial Court adjourned to November 18, 2022, specifically for the purpose of playing the videos in open Court.

However, despite the presence of parties and counsel on that date, the Court did not convene and instead proceeded to deliver its judgment on November 29, 2022, without viewing the video evidence.

Based on the sequence of events, the counsel asserted that the trial Court’s refusal to allow the playing of the video evidence before the judgment amounted to a denial of the appellant’s right to a fair hearing, as it deprived them of the opportunity to fully present their case. Akaninwo V Nsirim (2008) LPELR-321(SC) and Ndukauba V Kolomo (2005) LPELR-1976(SC) are cited as precedents, with the contention that the proceedings are rendered null and void. Consequently, the Counsel urged the Court to exercise its power under Section 15 of the Court of Appeal Act and decide the case based on its merits.

Under issue four, the learned Counsel for the appellant argued that the trial Court’s finding on the merits of the case is not supported by the weight of the evidence. It was claimed that the trial Judge failed to evaluate or properly evaluate the evidence presented before reaching the decision.

The appellant pointed to specific paragraphs of their affidavits and further affidavits, particularly paragraphs 16 and 17 of the main affidavit and paragraphs 6, 7, and 8 of the further affidavit, which support their allegation that the primary election took place in Awka. To substantiate this claim, the appellant referred to Exhibits ‘Ugo 2’, ‘Ugo 4’, ‘Ugo 5’, ‘Ugo 6’, ‘Ugo 7’, ‘Ugo 8’, and ‘Ugo 9’ as evidence.

Regarding Exhibits ‘Ugo 2’ and ‘Ugo 5’, the counsel adopted the arguments presented in issue three, emphasizing the contention that the trial Court refused to allow the playing of the videos in open Court. Furthermore, it was asserted that the trial Court failed to consider and evaluate Exhibit ‘Ugo 4’, a computer-generated evidence, as well as Exhibits ‘Ugo 6’, ‘Ugo 7’, ‘Ugo 8’, and ‘Ugo 9’, which consist of affidavits from two delegates at the primary election and a report and affidavit from Mr. Anyaegbunam Okoye, the returning officer initially appointed by the 1st Respondent to conduct the primary election.

The counsel argued that the trial Court’s reliance on Exhibit ‘INEC 1’, the INEC Report on the primary election, and its invocation of the presumption of regularity were erroneous. They contend that Section 168(1) of the Evidence Act rebuts this presumption with the abundance of evidence presented by the appellant. Therefore, the counsel invited the Court to assume the role of the trial Court and evaluate the evidence, exercising its power under Section 15 of the Court of Appeal Act, and subsequently render a judgment in favor of the appellant.

RESPONDENTS’ SUBMISSIONS
In response to the appellant under issue one, the learned counsel for the 1st respondent argue that the trial Court correctly determined that the appellant’s suit, filed on June 7, 2022, was statute-barred because the cause of action arose on May 24, 2022, which was within 15 days of filing the suit. This timeframe exceeded the constitutional limitation of 14 days stated in Section 285(9) of the Constitution, as amended. The Counsel relied on the Supreme Court decision in Bello V Yusuf (2019) 15 NWLR (Pt. 1695) 250, 271, D-F to support this argument.

Regarding the appellant’s contention that Section 15 of the Interpretation Act should be applied in calculating the time under Section 285(9) of the Constitution, and the reliance on the decisions in Oni V Fayemi and Bello V Yusuf, the Counsel asserted that these decisions do not support the appellant’s position. It was argued that the Supreme Court in those cases outrightly rejected the application of Section 15 of the Interpretation Act to election-related matters when computing time under Section 285(9) of the Constitution.

Regarding the alternative argument of the appellant that they were unable to file the suit on June 6, 2022, due to a sit-at-home order, the counsel contended that the claim was unfounded as it was raised for the first time in the appellant’s brief of argument in the Court of Appeal. It was argued that this issue was not presented before the trial Court, and no evidence was provided to substantiate the assertion. The counsel asserted that a party must maintain consistency in presenting their case at any level and should not be allowed to change their stance as they progress through the judicial hierarchy. The case of Uba V Ozigbo was relied on.

Finally, the counsel argued that no Court has the authority to extend the constitutionally stipulated time under Section 285 of the Constitution, as amended. The case of Ugba V Suswam was relied on. Therefore, the counsel urged the Court to decide this issue in favour of their favour.

In response to the appellant’s argument under issue two, the learned Counsel for the 1st respondent argued that the appellant’s suit constituted an abuse of Court process because the appellant had voluntarily undertaken not to challenge the choice of the 1st respondent’s candidate for Idemilil South State Constituency. He submitted that the trial Judge was correct in declining jurisdiction based on this undertaking, citing the case of Professor Jerry Gana, CON V Social Democratic Party (2019) LPELR-47153(SC) 18-23, A-A, per Eko, JSC. The counsel contended that the appellant’s challenge to the choice of the 3rd respondent as the party’s candidate can be inferred from the reliefs sought in the Writ of summons.

Regarding the appellant’s argument that the case was focused on the process that produced the candidate and not the choice of the party’s candidate, the counsel referred to the reliefs sought by the Appellant to argue that the suit is essentially targeted at the 3rd Respondent as the party’s chosen candidate for the forthcoming general elections.

In response to the argument of the appellant as regards issues three and four, the learned counsel for the 1st respondent argued that the appellant failed to provide credible evidence to support the allegation that the primary election was held in Awka. He posited that the affidavit evidence and attached exhibits provided by the appellant were insufficient, unreliable, feeble, and empty.

The counsel relied on counter affidavits filed by the respondents, which denied the allegation and presented exhibits and affidavits showing that the primary election took place in Idemili South State Constituency. It was argued that the trial Court properly used the INEC Report and documentary evidence to resolve the conflict in the parties’ affidavit evidence. He cited Bello V Idris (2022) LPELR-56730(CA) and Odutola V Mabogunje (2013) LPELR-19909(SC) to support the argument.

The Counsel also rejects the appellant’s claim that the trial Court denied him the right to fair hearing by refusing to consider a motion on notice, stating that the appellant failed to bring the motion to the attention of the trial Court.

In response to issue four, the counsel argued that the ground and issue are incompetent, as they did not arise from the judgment of the trial Court. He requested the Court to strike out ground four and issue four. However, on the merits, it was contended that the trial Judge properly evaluated and assessed the evidence regarding the venue of the primary election, and the appellant failed to demonstrate that the findings were unsupported or perverse.

Regarding the appellant’s invitation to invoke Section 15 of the Court of Appeal Act to evaluate the evidence, the counsel argued that it is untenable due to the expiration of the 180-day period prescribed by Section 285(10) of the Constitution. Counsel relied on Ezeh V Nnamani (2019) LPELR-48157(CA) and Ezenwankwo V APGA (2022) LPELR-57884(SC) to support this argument.

RESOLUTION OF ISSUES
In resolving issue one, the Court defined the term ‘statute-barred’ as being blocked, or stripped by a statute. It signifies a time limitation imposed by a statute, beyond which legal action cannot be taken. Any action taken outside the specified time limit is considered invalid and has no legal effect. The Court emphasized that the bar can only be lifted or the time limit extended if the statute allows it.

The purpose of imposing a time limit on legal actions is to bring an end to litigation promptly, ensuring that valid claims are pursued before evidence fades or witnesses become untraceable. If an action is statute-barred, the plaintiff loses the right to enforce their cause of action through legal means because the statutory time limit has expired. Initiating legal proceedings after the prescribed period is not permissible, and such actions are considered incompetent and outside the Court’s jurisdiction.

The Court stated that the case in question involved a pre-election matter regulated by Section 285(9) of the 1999 Constitution (4th Alteration). According to this provision, pre-election matters must be filed within 14 days from the date of the event, decision, or action complained of. The Court clarified that the 14-day period includes the day on which the cause of action accrued. Failure to comply with this time limit is fatal to pre-election matters, and no extension of time is granted.

The Court rejected the argument that the Interpretation Act’s provisions on the computation of time should apply in pre-election matters. It emphasized that the Interpretation Act’s provisions are inapplicable to election-related matters as time begins to count from the day of the event, decision, or action complained of, inclusive of that date. Sundays and public holidays are also included in the calculation of time.

Regarding a claim of impossibility to file the action within the prescribed time, due to a peculiar circumstance such as a ‘sit-at-home’ order, the Court found that the appellant failed to raise this issue before the trial Court. Introducing a new issue on appeal without prior leave of the Court is inappropriate, especially when it pertains to factual questions. The Court emphasized that the appellant should have sought the Court’s permission to raise the new issue and provide evidence to support it.

In conclusion, the Court held that the appellant’s action was statute-barred as it was filed outside the 14-day period prescribed by Section 285(9) of the Constitution (4th Alteration). The Court emphasized that the 14-day time limit is immovable, and failure to comply with it deprives the Court of jurisdiction to entertain the suit. The Court upheld the trial Court’s decision and dismissed the appeal.

In resolving issue two, the Court stated that the second preliminary objection raised by the 3rd respondent was based on the appellant’s voluntary undertaking in a sworn affidavit. The appellant had clearly stated that he would not contest or litigate the outcome of the primary election.

The Court emphasized that a person is bound by the contents of a document voluntarily signed by them, and extrinsic evidence cannot be used to alter those contents. Despite this undertaking, the appellant challenged the effectiveness of his sworn affidavit, claiming that it did not extend to challenging the process that produced the candidate.

However, the Court found this argument to be contrived and emphasized that the suit was directed at the candidate chosen by the party. The Court referred to a similar case where the Supreme Court made important pronouncements, stating that a party who benefits from an agreement cannot renege on their undertaking. The Court held that the appellant’s undertaking waived his right to litigate the primary election’s outcome and estopped him from maintaining the action. The Court concluded that the appellant’s conduct constituted an abuse of the Court process, and in line with the Supreme Court’s decision, resolved the issue against the appellant.

In resolving issues three and four, the Court stated that the first issue addressed by learned counsel for the 1st respondent is the argument that the trial Court’s failure to allow the appellant to play video evidence breached his right to fair hearing and resulted in a miscarriage of justice. This issue was not raised in the trial Court and would usually require the leave of Court to be raised. However, it is permissible to raise a new issue touching on the jurisdiction of the Court without seeking leave.

The appellant claims that the trial Court did not permit him to play the video evidence in open Court, but the record of appeal shows that the video evidence was attached to the appellant’s affidavits and a motion was filed to play the videos. The case was heard, written addresses were adopted, and the Court adjourned for judgment.

There is no mention of the pending motion or any request to move it before judgment was delivered. The trial Court scheduled a date for the videos to be played but there is no record of what transpired on that date. The appellant failed to draw the Court’s attention to the motion or to follow up on the order to play the videos. It can be inferred that the appellant had second thoughts about the motion and abandoned it. Therefore, the appellant was given the opportunity to present his case without hindrance.

The trial Court concluded that the appellant failed to prove his case on a balance of probabilities. The appellant presented his evidence through affidavits, exhibits, and videos, while the respondents countered with their own affidavits, exhibits, and an INEC report. The trial Court held that the primary election took place at the Idemili South Secretariat, as supported by the evidence presented by the respondents. The trial Court’s assessment of the evidence was upheld, as the appellant failed to discharge the burden of proof.

The trial Court’s findings were not shown to be perverse or based on wrong principles of law. The request for the Court of Appeal to evaluate the evidence, particularly the video evidence, was deemed irrelevant as the time limit for the trial Court to hear and determine the case had already expired.
HELD
Having resolved all four issues against the appellant, the Court found the appeal lacking in merits, and dismissed it.
APPEARANCES:
Okechukwu Otuku, Esq. with him, N. E. Ifuma – For Appellant(s)

C. O. Igboamuzue, Esq. – for 1st Respondent
Clement Ezika, Esq. – for 2nd Respondent – For Respondent(s)
K. M. Nomeli, Esq. – for 3rd Respondent