ADOJUTELEGAN v. APC & ORS (2021)

ADOJUTELEGAN v. APC & ORS

(2021)LCN/15054(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, February 19, 2021

CA/ABJ/CV/94/2021

RATIO

WHETHER A GROUND OF APPEAL WHICH PARTICULARS OF ERROR ARE ARGUMENTATIVE OR CONCLUSION IS IPSO FACTO INCOMPETENT

A ground of appeal which particulars of error are argumentative or conclusion is not ipso facto incompetent so long as it is not capable of misleading the other party and the Court is satisfied that its meaning can be reasonably elicited. It cannot be considered objectionable. See UWAZURUIKE V NWACHUKWU (2012) LPELR 15353 CA. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.

RELEVANCE OF AFFIDAVIT EVIDENCE WHERE A SUIT IS BY ORIGINATING SUMMONS

It is trite law that where a suit is by originating summons it is fought on the basis of affidavit evidence. This Court in ONUEGBU VS. A. G., IMO STATE & ORS (2012) LPELR-19691 (CA), per Abba Aji, JCA (as she then was) held: “In actions commenced by way of originating summons, facts do not have pride of place in the proceedings. It is the affidavit evidence filed by the respective parties that is considered in the determination of the issues for determination. It is unlike a situation where trial is commenced by writ of summons where the facts are regarded as holding pride of place and the fountain head of the law, in the sense that the facts lead to a legal decision on the matter. That is not the position where facts do not play a central role but an infinitesimal role. An affidavit duly sworn or deposed to before a Court of law is the only documentary evidence available before the Court in determination of the issues raised for determination in the originating summons. See Etim V. Obot (2010) 12 NWLR (Pt 1207) 108 at 171; Inakoju v. Adeleke (2007) ALL FWLR (PT 353) 3 at 75. It is therefore clear that the affidavits filed by parties in actions commenced by originating summons take the place of evidence and any material paragraph of an affidavit not specifically denied is taken as admitted and constitutes unchallenged evidence upon which the Court can act.”
Also, in ABUBAKAR VS. DANGIRI (2015) 2 NWLR (PT. 1442) 124, also reported in the Law Pavilion as DANLADI vs DANGIRI & ORS. (2014) LPELR-24020 (SC) the Supreme Court, per Kekere-Ekun, JSC, expressed thus: “In the instant case, the lower Court found, rightly in my view, that the suit was properly commenced by originating summons. Where a suit is commenced by originating summons it is fought on the basis of affidavit evidence. In the instant case, the conditionalities for the invocation of Section 16 of the Court of Appeal Act were present. Since all the necessary materials were before the Court it ought to have invoked its powers under Section 16 to consider relief 3 on its merits and in order to eliminate further delay. At the worst, the parties could have been ordered to adduce oral evidence or additional documentary evidence in the event of contradictory averments requiring further elucidation.” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.

EFFECT OF A DECISION BY A COURT THAT IT LACKS THE REQUISITE JURISDICTION TO ADJUDICATE OVER OR ENTERTAIN A CASE BEFORE IT

A decision by a Court that it lacks the requisite jurisdiction to adjudicate over or entertain a case before it, is a final decision in law, and for all practical purposes, since there would no longer be pending issues in the case which it can, in spite of the want of jurisdiction, deal with. Such a finding, ruling or decision disposes of the right of the parties finally in the case even if not on the merit and makes the Court functus officio at that stage, for want of jurisdiction to adjudicate over the case. See AKINSANYA v. UBA (1986) 4 NWLR (PT. 35) 273; IGUNBOR V. AFOLABI (2001) FWLR (PT. 59) 1284; ODUTOLA V ODERINDE (2004) ALL FWLR (PT. 217) 615. In the case of ISIDAEHOMEN V. GOV. BENDEL STATE (1986) CAR (PT. 11) 6, it was held that a Court with no jurisdiction should not proceed to hear evidence and that further hearing is a nullity and the proper order to make is to strike out the case. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.

MEANING OF A CAUSE OF ACTION

A cause of action is a fact or a combination of facts which when proved would entitle a Plaintiff or Claimant to a remedy against a Defendant, see OSHOBOJA vs AMUDA (1992) 6 NWLR (PT. 250) 690. We often talk of a reasonable cause of action. The Supreme Court has defined a reasonable cause of action as “a reasonable cause of action is a cause of action which (when only the allegations in the statement of claim are considered) has some chance of success”. See ADIMORA VS AJUFO (1988) 3 NWLR (PT. 80) 1; THOMAS VS OLUFOSOYE (1986) 1 NWLR (PT. 18) 699; OGBIMI VS OLOLO (1993) 7 SCNJ 447; SANDA VS KUKAWA L.G.A (1991) 2 NWLR (PT. 174) 379. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.

WHAT MUST BE CONSIDERED IN DETERMINING WHETHER A CAUSE OF ACTION EXISTS IN A CASE

The law is settled without disputation, that in determining whether a cause of action exists in a case, the Court has to look at the statement of claim filed by the Plaintiff or Claimant on which the claims made are predicated. Put in another way, the only relevant document a Court has to or needs to consider in the determination of whether a cause of action or a reasonable cause of action exists or is shown in a case, is the statement of claim which contains all the facts relied upon by the Plaintiff in making a claim against a Defendant and seeking judicial remedy from the Court. See AYANBOYE VS BALOGUN (1990) 5 NWLR (PT. 151) 392. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.

CIRCUMSTANCE WHERE ORIGINATING SUMMONS MUST BE ADOPTED

It is trite that actions or proceedings may be commenced by originating summons where: (a) the sole issue is one of construction of a written law (e.g the constitution) or instrument made under any written law, or deed, will, contract, or other document, or other question of law; (b) there is unlikely to be any substantial dispute of facts and
(c) the Rules of Court or any statute specifically direct that the action be commenced by it, e.g. Fundamental Rights (Enforcement Procedure) Rules 1979 and certain applications under the Companies Proceedings Rules 1992, (see Order 2 Rule 1 (1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979; DOHERTY VS. DOHERTY (1964) NWLR 14 and BALONWU VS. OBI (2007)5 NWLR (PT. 1028) 489 (CA). Generally, Originating Summons is used for non-contentious actions, i.e those actions whose facts are not likely to be in dispute. Where facts are in dispute or riotously so, an Originating Summons Procedure will not avail a plaintiff and he must come by way of a writ of Summons. In other words, an Originating Summons will not lie in favour of a plaintiff where the proceedings are hostile in the sense of violent dispute. See INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423 (SC) and OSUNBADE VS. OYEWUNMI (2007) ALL FWLR (PT.368) 1004 (SC). It is trite that Originating Summons does not require pleadings and witnesses are not called. Actions commenced by Originating Summons are decided on affidavit evidence. See BALONWU vs OBI (supra). PER IBRAHIM ALI ANDENYANGTSO, J.C.A.

MEANING OF AN AFFIDAVIT

It is elementary that an affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a Court process in writing, deposing to facts within the knowledge of the deponent. Therefore it is a documentary evidence which the Court can admit in the absence of any unchallenged evidence. See AKPOKINIOVO vs. AGAS (2004) 10 NWLR (PT. 881) 894 (CA). It is trite that an affidavit meant for use in Court stands as evidence and must as nearly as possible conform to oral evidence admissible in Court. See LAWAL OSULA vs. U.B.A. PLC (2003) 5 NWLR (Pt. 813) 376 (CA); BAMAIYI VS. STATE (2001) 8 NWLR (PT. 715) 270 (CA). PER IBRAHIM ALI ANDENYANGTSO, J.C.A.

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

NATHANIEL OLUMUYIWA ADOJUTELEGAN APPELANT(S)

And

ALL PROGRESSIVES CONGRESS (APC) 2. AKEREDOLU OLUWAROTIMI ODUNAYO (SAN) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Abuja Division presided over by Hon. Justice Okon E. Abang, J., delivered on the 16th December, 2020 in Suit No. FHC/ABJ/CS/886/2020, wherein the Learned Trial Judge sustained the Preliminary Objections of the 1st and 2nd Respondent and dismissed the Appellant’s suit on the ground that same was statute-barred.

Piqued by the said decision, the Appellant has lodged this appeal against it to this Hon. Court. The judgment is contained at pages 798 – 858 of the Record of Appeal – “the Record” for short. The Notice of Appeal containing 7 grounds filed on 22/12/2020 is at pages 859 – 868 of the Record. The 2nd Respondent also on 18/1/2021 filed a Respondent Notice of Intention to contend that the judgment be affirmed on grounds other than those relied on by the Court below, under Order 9 Rule 2 of the Rules of this Court, 2016. See pages 766 – 769 of the Record.

The brief facts of this case are that the Appellant and the 2nd Respondent were among other contestants who contested the Primary Election for nomination for the

office of Governor of Ondo State in the general election slated for 10/10/2020. In the course of the conduct of the Primary, the Appellant observed the occurrence of what he termed “several irregularities and acts of non-compliance with provisions of the Electoral Act, 2010 (as amended), the Constitution of the 1st Respondent and its Electoral Guidelines for the Primary.” At the end of the primary election, the 2nd Respondent was declared winner with a score of 2,458 votes on 21/7/2020. Aggrieved by the outcome of the primary election, the Appellant appealed to the Appeals Committee of the 1st Respondent on 22/7/2020 and also personally appeared before the Appeals Committee on 24/7/2020, which exercise yielded no result.

The Appellant then commenced this suit on 3/8/2020 by way of Originating Summons, supported by a 58 paragraph affidavit to which 14 Exhibits were attached, marked NAT 1 – 14, seeking the determination of the following questions and seeking the reliefs therein.

The questions and reliefs are:-
QUESTIONS
“1. Whether having regard to the mandatory provisions of Section 87 (1), (2), (4), (7) and (8) of the Electoral Act 2010

(as amended), Article 20 (iii) and (iv) (a), (b), (c) and (d) of the 1st Defendant’s Constitution 2014 (as amended) and Guidelines for the Nomination of Candidates for the 2019 General Elections 2019- Indirect Primaries (hereinafter referred to as “Electoral Guidelines”), indirect primaries for the purpose of nominating a candidate shall be conducted at a designated venue for that purpose, by an Electoral College of delegates democratically elected by members of the party from the various Wards making up the particular constituency.
2. Whether by virtue of Section 87(7) and (8) of the Electoral Act 2010 (as amended), Article 20 (Hi) and (iv) (a), (b), (c) and (d) of the 1st Defendant’s Constitution 2014 (as amended) and Electoral Guidelines, it was lawful and or valid for principal officers of the Ward Executive Committees from Wards in the Ondo State, members of the Local Government Executive Committee from Local Government Areas in Ondo State and members of the Ondo State Executive Committee, none of whom was elected democratically or howsoever for the primary by members of the 1st Defendant from the various wards in Ondo State but politically selected

or appointed officials, to have voted as delegates at the 1st Defendant’s gubernatorial primary election held on 20th July 2020.
3. Whether in view of Article 20 of the 1st Defendant’s Constitution 2014, (as amended) and considering the pendency of Suit No. FHC/AK/CS/10/19 before the Federal High Court, Akure Division against the constitutionality and validity of the Ward, Local government and State Executives selected or appointed in 2018, the 1st Defendant could validly or lawfully proceed to conduct primary election at which the same executives whose constitutionality and or validity is being challenged, voted as delegates or allow the said executives to vote as delegates.
4. Whether having regard to Section 87 (4)(b) and (7) of the Electoral Act 2010 (as amended) and Paragraph 14 (iii) of the Electoral Guidelines, election of candidate by delegates at the governorship primaries of the 1st Defendant must be by secret ballot.
5. Whether in view of the mandatory requirement of secret balloting as provided in Paragraph 14 (iii) of the Electoral Guidelines and given statutory support by Section 87 (4)(b) and (7) of the Electoral Act 2010 (as amended),

the governorship primary election held on 20th July 2020 in Ondo State which was conducted by open ballot whereby there were no polling booth(s) or cubicle(s) and delegates freely and openly took pictures of their ballot papers by phone and showed the ballot papers to each other and to agents of the 1st Defendant while voting, is not unlawful, unconstitutional, null and void and of no effect whatsoever.
6. Whether in view of the provisions of Sections 101 (1) and 126 (1) (b) of the Electoral Act 2010 (as amended) and paragraph 3 (i) of the 1st Defendant’s Electoral Guidelines; the 2nd Defendant is not disqualified from contesting the Ondo State Governorship primary election of the 1st Defendant held on 20th July 2020 or liable to be stripped of any Electoral gains he made at the primary, having published via radio and other electronic media across Ondo State and via his personal Facebook account and Twitter handle and caused his agents and or privies to publish false statements before and during voting at the primary election, alleging or claiming that the Plaintiff had withdrawn from the election to support him (the 2nd Defendant) when he knew

that same was false, thereby manipulating and misleading and or deceiving the Plaintiffs supporters to vote for him (the 1st Defendant) at the primary and denying the Plaintiff of the votes of delegates who were supporting him.
7. Whether in the event that any or all of the above questions are resolved in favour of the Plaintiff, the purported choice and nomination of the 1st Defendant as candidate of the 1st Defendant for the office of Governor of Ondo State in the forthcoming general election slated for 10th October 2020 or any other date is not altogether unlawful, null and void and of no effect whatsoever.
RELIEFS
“1. A DECLARATION that having regard to the mandatory provisions of Section 87 (1), (2), (4), (7) and (8) of the Electoral Act 2010 (as amended), Article 20 (iii) and (iv) (a), (b), (c) and (d) of the 1st Defendant’s Constitution 2014 (as amended) and Guidelines for the Nomination of Candidates for the 2019 General Elections 2019 – Indirect Primaries (“Electoral Guidelines”), indirect primaries for the purpose of nominating a candidate must mandatorily be done or conducted by an Electoral College of delegates democratically

elected by members of the party from the various Wards contained in the particular constituency at congresses.
2. A DECLARATION that by virtue of Section 87(7) and (8) of the Electoral Act 2010 (as amended), Article 20 (iii) and (iv) (a), (b), (c) and (d) of the Defendant’s Constitution 2014 (as amended) and extant Electoral Guidelines, it was unlawful and or invalid for principal officers of the Ward Executive Committees from Wards in the Ondo State, members of the Local Government Executive Committee from Local Government Areas in Ondo State and members of the Ondo State Executive Committee, none of whom was elected democratically or howsoever as delegate for the primary by members of the 1st Defendant from the various wards in Ondo State but politically selected or appointed officials, to have voted as delegates at the 1st Defendant’s gubernatorial primary election held on 20th July 2020.
3. A DECLARATION that in view of Article 20 of the 1st Defendant’s Constitution 2014, (as amended) and considering the pendency of Suit Number FHC/AK/CS/10/19 before the Federal High Court, Akure Division against the constitutionality and validity of the Ward,

Local Government and State Executives selected or appointed in 2018, the 1st Defendant could not validly or lawfully proceed to conduct primary election at which the same executives whose constitutionality and or validity is being challenged, voted as delegates or allow the said executives to vote as delegates.
4. A DECLARATION that having regard to Section 87 (4) (b) and (7) of the Electoral Act 2010 (as amended) and Paragraph 14 (III) of the Electoral Guidelines, election of candidate by delegates at the governorship primaries of the 1st Defendant must be by secret ballot.
5. A DECLARATION that in view of the mandatory requirement of secret balloting as provided in Paragraph 14 (III) of the Electoral Guidelines and given statutory support by Section 87 (4)(b) and (7) of the Electoral Act 2010 (as amended), the governorship primary election held on 2nd July 2020 in Ondo State which was conducted by open ballot whereby there were no polling booth(s) or cubicle(s) and delegates freely and openly took pictures of their ballot papers by phone and showed the ballot papers to each other and to agents of the 1st Defendant while voting, is unlawful

unconstitutional null and void and of no effect whatsoever.
6. A DECLARATION that in view of the provisions of Sections 101 (1) and 126 (1) (b) of the Electoral Act 2010 (as amended) and paragraph 3 (i) of the 1st Defendant’s Electoral Guidelines, the 2nd Defendant is disqualified from contesting the Ondo State Governorship primary election of the 1st Defendant held on 20th July 2020 or liable to be stripped of any Electoral gains he made at the primary, having published via radio and other electronic media across Ondo State and via his personal Facebook account and Twitter handle and caused his agents and or privies to publish false statements before and during voting at the primary election alleging or claiming that the Plaintiff had withdrawn from the election to support him (the 2nd Defendant) when he knew that same was false, thereby manipulating and misleading and or deceiving the Plaintiffs supporters to vote for him (the 2nd Defendant) at the primary and denying the Plaintiff of the votes of delegates who were supporting him.
7. A DECLARATION that the purported choice and nomination of the 2nd Defendant as candidate of the 1st Defendant for

the office of Governor of Ondo State in the forthcoming general election for the seat of Governor of Ondo State slated for 10th October 2020 or any other date is altogether unlawful null and void and of no effect whatsoever.
8. AN ORDER setting aside and or nullifying the purported nomination of the 2nd Defendant as candidate of the 1st Defendant for the office of Governor of Ondo State in the forthcoming 10th October 2020 general election for the seat of Governor of Ondo State as well as any certificate of return already issued to him by the 1st Defendant and any INEC FORM (SUBMISSION OF NAMES OF CANDIDATES BY POLITICAL PARTY) purportedly issued and or submitted by the 1st Defendant to the 3rd Defendant in that regard.
9. AN ORDER directing the 1st Defendant to immediately conduct fresh primary election for the selection, nomination or election of its candidate for the office of Governor of Ondo State in the forthcoming general election for the seat of Governor of Ondo State slated for 10th October 2020 or any other date.
10. AN ORDER disqualifying the 2nd Defendant and or directing the removal of his name as an aspirant at the fresh primary

election of the 1st Defendant to be conducted for the selection, nomination or election of its candidate for the office of Governor of Ondo State in the forthcoming general election for the seat of Governor of Ondo State slated for 10th October 2020 or any other date.
11. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 3rd Defendants/their agents/privies/ servants and assigns or any person howsoever from recognising and or continuing to recognise the 2nd Defendant as the 1st Defendant’s candidate for the office of Governor of Ondo State in the forthcoming general election for the seat of Governor of Ondo State slated for 10th October 2020 or any other date or granting to him any right in relation thereto.
12. AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant from putting himself out or parading himself as candidate of the 1st Defendant for the office of Governor of Ondo State in the forthcoming general election for the seat of Governor of Ondo State slated for 10th October 2020 or any other date.
13. AND FOR SUCH FURTHER OR OTHER ORDERS as the Honourable Court may deem appropriate to grant in the circumstances of this Case.”
(See pages 3 – 398 of the Record)

The Appellant filed his brief of argument, settled by A.I. Aderogba Esq., on 8/2/2021.

On the 16/2/2021, this Court abridged the time within which all the Respondents were to file and serve their Respondents’ briefs of Argument by giving them 24 hours to so do. The 3rd Respondent filed its Respondent’s brief on the said same 16/2/2021, while the 1st and 2nd Respondents filed theirs on the 17/2/2021. The 1st Respondent’s brief was settled by S.O. Ajayi Esq.; that of the 2nd Respondent was settled by Olumide Olujinmi Esq., while that of the 3rd Respondent was settled by Abdulaziz Sani, Esq.

Now, the Grounds of Appeal, shorn of their particulars are as follows:-
“GROUND 1:
The learned trial Judge erred in law when he held that the Appellant’s suit was statute barred.
GROUND 2:
The trial Court misdirected itself in law by holding that the Appellant’s case centres on the choice of indirect primary and that his cause of action arose on 17th July 2020 when 1st Respondent’s Electoral Committee opted for indirect mode of primary election.

GROUND 3:
The trial Court erred in law when it held that issues raised by the Appellant in his case relate to pre-primary election matters.
GROUND 4:
The learned trial Judge erred in law when he held that the Appellant’s suit is an admixture of causes of action which had become statute-barred and those not statute-barred and that the statute-barred ones have contaminated the rest and render the suit incompetent.
GROUND 5:
The trial Court erred in law when it held that the Appellant’s suit is predicated on lis pendens and that same is not a ground for challenging primary election under Section 87 (9) of the Electoral Act 2010.
GROUND 6:
The learned trial Judge erred in law by failing or refusing to consider the merit of the Appellant’s case.
GROUND 7:
The decision of the trial Court is against the weight of evidence.”
RELEFS SOUGHT FROM THE COURT OF APPEAL:
A) AN ORDER allowing the appeal of the Appellant.
B) AN ORDER setting aside the judgment/decision of the Federal High Court, Abuja delivered on the 16th day of December, 2020 by Hon. Justice Okon Abang in suit NO. FHC/ABJ/CS/886/2020 and all the Orders contained therein.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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C) AN ORDER invoking the general powers of this Honourable Court to hear and determine the Appellant’s originating summons and entering judgment for the Appellant in terms of the reliefs sought in his Originating Summons.
D) SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.”

From the 7 grounds of appeal, the Appellant formulated 3 issues for determination of this appeal.

The appeal was heard on 17/2/2021 and learned counsel for the respective parties adopted their respective Briefs. However, before hearing the learned counsel for the Appellant, the learned counsel for the 2nd Respondent informed the Court that he had given Notice of Preliminary Objection which he argued on pages 4 – 8 of his brief, urging the Court to uphold same and strike out the grounds of appeal on the ground of incompetence.

The learned Appellant’s Counsel, responding on point of law to the preliminary objection, (albeit orally, considering the circumstances of this appeal, vis a vis the order for abridgment of time to file Respondents’ briefs), submitted that this Court should consider the submissions of the

Appellant at the lower Court on pages 706 – 717 and 724 – 739 of the record. I shall now take the Preliminary Objection of the 2nd respondent.

DECISION ON THE PRELIMINARY OBJECTION RAISED BY THE 2ND RESPONDENT.
The 2nd Respondent filed a Notice of Preliminary objection which he incorporated in the body of his Brief of Argument. The Appellant also raised a preliminary point of law to the 2nd Respondent’s Preliminary Objection alleging that the 2nd Respondent breached the provisions of Order 10 Rule 1 of the 2016 Rules of this Court which statutorily required that three clear days Notice be given to the Appellant in respect of the Preliminary Objection. He added that it was brought in bad faith.

It should be recalled that the Appellant filed a Motion on Notice on 8/2/2021 for abridgement of time within which the Respondents shall file their respective Briefs of Argument. The same was heard by this Court on the 16th February, 2021. In the course of hearing the application, this Court was informed by the Appellant’s learned Counsel that the 60 days period within which this Court shall hear and deliver judgment in the appeal as prescribed by the

1999 Constitution of the Federal Republic of Nigeria (as amended), shall lapse on Friday, the 19th February, 2021. In consequence thereof and after considering the exceptional circumstances of the appeal, this Court exercised the discretion bestowed upon it by Order 19 Rule 11 of the 2016 Rules of this Court, granted the application and abridged the time stipulated in the 2016 Rules within which each party shall file his Brief of Argument including the Appellant’s Reply Brief, to 24 hours only which elapsed on the 17th February, 2021 at 11.07am. It is therefore ludicrous that this preliminary point was raised in the first instance by the Appellant in relation to the requirement of three clear days notice under Order 10 Rule 1. It is spurious and in complete disregard for the exercise of discretion already made by this Court to accommodate this appeal. Accordingly, Appellant’s learned Counsel is estopped from hinging his objection on Order 10 Rule 1 having personally benefited from the discretion already exercised in that respect. The preliminary point is hereby overruled.

I will now proceed to the consideration of the grounds of the Preliminary Objection

raised by the 2nd Respondent challenging the competency of this appeal. The first ground of objection is squared on the provisions of Order 7 Rule 2(3) of the Rules of this Court. It is contended that grounds 1, 2 and 5 are arguments and narratives which render the grounds incompetent and liable to be struck out. He relied on MILITARY ADMINISTRATOR, ONDO STATE VS. AJAYI (1998) 3 NWLR (PT. 540) 27 AT 44.

As rightly stated by the 2nd Respondent’s Senior Counsel in the Brief, Order 7 Rule 2(3) of the 2016 Rules of this Court strictly provides that:
“The Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”

Perhaps, it may be prudent to reproduce hereunder the said Grounds 1, 2 and 5 of the Appellant’s Notice of Appeal complained about. They read thus:
“Ground 1
The learned trial Judge erred in law when he held that the Appellant’s suit was statute barred.
Ground 2
The trial Court misdirected itself in law by holding that the Appellant’s case centres on the

choice of indirect primary and that his cause of action arose on 17th July, 2020 when 1st Respondent’s Electoral Committee opted for indirect mode of primary election.
Ground 5
The trial Court erred in law when it held that the Appellant’s suit is predicated on lis pendens and that same is not a ground for challenging primary election under Section 87(9) of the Electoral Act, 2010.”

Now to tackle this, it is pertinent to appreciate the distinction between grounds of appeal complaining of error and particulars of error. The Supreme Court in OGBONNAYA & ORS VS. ADAPALM NIG. LTD. (1993) LPELR- 2288(SC), per Kutigi, JSC, (as he then was) said that:
“A ground of appeal which complains of an error in law is the foundation of the ground of appeal while the particulars of error are merely supportive of the ground of appeal.”
In INAKOJU VS. ADELEKE (2007) 4 NWLR (Part 1025) 423, Tobi, JSC, stated that-
“Grounds of appeal provide the mirror through which the Court takes a peep at the appeal. Although grounds of appeal are not barometers for the initial determination of the strength of the appeal, they provide some useful

information, even if speculatively, on the likely trend or outcome of the appeal. As the first point of contact with the appeal, the grounds of appeal should, at the first sight of the appellate Judges or on their face, show good cause why the appeal should be heard…”
He further said in DAGACI OF DERE VS. DAGACI OF EBWA (2006) 7 NWLR PT. 979 382 that:
“A ground of appeal is the complaint the appellant has on the decision of the lower Court. By the ground of appeal, the appellant tells the appellate Court that he is not satisfied with the judgment of the trial or lower Court and he spells out clearly the specific area he is not satisfied with. An issue raised in an appeal affecting the decision of the lower Court must be backed by a ground of appeal. Where there is no ground of appeal supporting the issue raised, it will be discountenanced or rejected by the appellate Court. Grounds of appeal are the taproots of the case on appeal as they lay the foundation upon which the case grows in the appellate Court to fruition.”

In the instant appeal, the Appellant made straight and clear complaints on the aspect of the ruling he is

challenging. There is nothing in any of the grounds of appeal objected to that was argumentative nor a narrative. They were concise, distinct, pungent, and they clearly complained about errors in law and misdirection in law on the part of the lower Court. They are neither vague nor do they lack precision and clarity. They sufficiently conveyed the issues being canvassed in the appeal to the Respondents. See OLORUNTOBA-OJU VS. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83, where the Supreme Court said that a good ground of appeal must be concise, elegantly drafted and straight to the point so that as soon as it is read, the error and misdirection complained against can be immediately understood and digested. Also, it has been held by this Court that:
“The fact that a ground of appeal is argumentative is not sufficient to deny the appellant his right of appeal when on the face of the ground of appeal, issues arise for consideration by the Court. This is so because the modern approach in adjudication is to avoid technicality in all its ramification and concentrate on the principal duty of Court to do justice. Moreover, where parties to an appeal and the Court

are not misled by the contents of a ground of appeal, complaint about its form, which form does not occasion a miscarriage of justice, becomes a technicality. And Courts now pursue the cause of substantial justice as against placing reliance on the rules of technicality.”
See NIGERIAN REINSURANCE CORP V. CUDJOE (2007) LPELR – 8849 (CA) P. 9-10 paras E – C.
In the instant case, the plaintiffs’ preliminary objection challenging the form of defendants’ grounds of appeal was struck out as the grounds of appeal were not rendered incompetent by its form.
There is nothing in the grounds complained of to suggest that the respondents were misled, in any way, more so as this Court finds the said grounds concise enough. A ground of appeal which particulars of error are argumentative or conclusion is not ipso facto incompetent so long as it is not capable of misleading the other party and the Court is satisfied that its meaning can be reasonably elicited. It cannot be considered objectionable. See UWAZURUIKE V NWACHUKWU (2012) LPELR 15353 CA. In the light of the above, ground one is hereby overruled. Regarding ground 2 of the objection which says that

ground 7 of the grounds of appeal which alleges that the decision of the trial Court is against the weight of evidence is misconceived and incompetent. It is trite law that where a suit is by originating summons it is fought on the basis of affidavit evidence. This Court in ONUEGBU VS. A. G., IMO STATE & ORS (2012) LPELR-19691 (CA), per Abba Aji, JCA (as she then was) held:
“In actions commenced by way of originating summons, facts do not have pride of place in the proceedings. It is the affidavit evidence filed by the respective parties that is considered in the determination of the issues for determination. It is unlike a situation where trial is commenced by writ of summons where the facts are regarded as holding pride of place and the fountain head of the law, in the sense that the facts lead to a legal decision on the matter. That is not the position where facts do not play a central role but an infinitesimal role. An affidavit duly sworn or deposed to before a Court of law is the only documentary evidence available before the Court in determination of the issues raised for determination in the originating summons. See Etim V. Obot (2010) 12 NWLR

(Pt 1207) 108 at 171; Inakoju v. Adeleke (2007) ALL FWLR (PT 353) 3 at 75. It is therefore clear that the affidavits filed by parties in actions commenced by originating summons take the place of evidence and any material paragraph of an affidavit not specifically denied is taken as admitted and constitutes unchallenged evidence upon which the Court can act.”
Also, in ABUBAKAR VS. DANGIRI (2015) 2 NWLR (PT. 1442) 124, also reported in the Law Pavilion as DANLADI vs DANGIRI & ORS. (2014) LPELR-24020 (SC) the Supreme Court, per Kekere-Ekun, JSC, expressed thus:
“In the instant case, the lower Court found, rightly in my view, that the suit was properly commenced by originating summons. Where a suit is commenced by originating summons it is fought on the basis of affidavit evidence. In the instant case, the conditionalities for the invocation of Section 16 of the Court of Appeal Act were present. Since all the necessary materials were before the Court it ought to have invoked its powers under Section 16 to consider relief 3 on its merits and in order to eliminate further delay. At the worst, the parties could have been ordered to adduce oral

evidence or additional documentary evidence in the event of contradictory averments requiring further elucidation.”

It is clear in the above decisions that ground 2 of the 2nd Respondent’s Preliminary Objection fails. It is hereby overruled. With respect to grounds 3 and 4 of the Preliminary Objection, and without further ado, the same are hereby overruled given the decisions on grounds 1 and 2 above. Issue 1 postulated by the Appellant in this appeal is valid before this Court. In relation to ground 5 of the Preliminary Objection which complained about ground 6 of the Appellant’s Notice of Appeal that says:
“The learned trial Judge erred in law by failing or refusing to consider the merit of the Appellant’s case”.
I find quite apposite the analysis made by Garba, JCA (as he then was) in UDO vs. AKPABIO (2013) LPELR-22119, where he stated thus:
“For instance, in the above case of Dangana v. Usman, the intrinsic nature of the jurisdiction of a Court in respect of a matter brought before it was put thus:-
“Jurisdiction has always been a threshold issue. It must be decided once it is raised and quickly too. A trial or a hearing

conducted without jurisdiction amounts to a wasted effort, a complete nullity no matter how well the matter was decided. That explains why the issue of jurisdiction can be raised at any time, in the trial Court, in appeal, or in the Supreme Court, for the first time. Jurisdiction is the life blood of any adjudication because a Court or Tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision by a Court or Tribunal without requisite jurisdiction is a nullity, dead and of no legal effect whatsoever. That is why an issue of jurisdiction is crucial and fundamental in adjudication and has to be dealt with first and foremost.” See pages 190 and 183 of the report, respectively.”
It would appear therefore that since the Federal High Court had made a finding that it lacks the requisite jurisdiction to adjudicate or entertain the Appellant’s case on the ground that it related to or arose from the pre-primary election matters of the 2nd Respondent and so its domestic affairs, which are not justiciable, the only proper order it was entitled and had the power to make in the case, was to strike out the case in line with the

above position of the law. After the finding that it lacks the jurisdiction to adjudicate over the case, its judicial authority and power over or in the case had become extinguished or expired since it is bound by that finding as a final decision made by it in the case. A decision by a Court that it lacks the requisite jurisdiction to adjudicate over or entertain a case before it, is a final decision in law, and for all practical purposes, since there would no longer be pending issues in the case which it can, in spite of the want of jurisdiction, deal with. Such a finding, ruling or decision disposes of the right of the parties finally in the case even if not on the merit and makes the Court functus officio at that stage, for want of jurisdiction to adjudicate over the case. See AKINSANYA v. UBA (1986) 4 NWLR (PT. 35) 273; IGUNBOR V. AFOLABI (2001) FWLR (PT. 59) 1284; ODUTOLA V ODERINDE (2004) ALL FWLR (PT. 217) 615. In the case of ISIDAEHOMEN V. GOV. BENDEL STATE (1986) CAR (PT. 11) 6, it was held that a Court with no jurisdiction should not proceed to hear evidence and that further hearing is a nullity and the proper order to make is to strike out the case.

With respect to the learned SAN for the Appellant, the case of ELELU-HABEEB V. A.G.F. (2012) LPELR 15515, did not lay the principle that where a trial Court decides that it lacks the requisite jurisdiction to entertain a matter before it, it was required in law and so had the duty, to still proceed to determine the case on its merit. The decision by the apex Court in the case is that this Court was right to have considered the issues raised in the appeal before it after finding that the High Court had no jurisdiction to entertain the case before it from which the appeal emanated. The jurisdiction of this Court to entertain the appeal before it was not raised before the Court and so the Court did not find that it had no jurisdiction to entertain the appeal and still went ahead to decide the merit of the said appeal. The objection to the jurisdiction of the Federal High Court in that case, was overruled by it and so it proceeded to decide the case on the merit from which an appeal was brought to this Court which made a finding that the Federal High Court lacked jurisdiction to entertain the case and went ahead to deal with the issues raised before it in the

appeal. That was the step commanded by the apex Court in the statement quoted by the learned SAN for the Appellant in his Reply Brief. The situation in that case is clearly quite different from the Appellant’s case where the objection to the jurisdiction of the Federal High Court to adjudicate over the appellant’s case, was upheld by that Court and in line with the law in the above authorities, struck out the case. In my respectful view, a finding by a trial Court that it lacks the requisite jurisdiction on any valid and recognised ground in law, to adjudicate over or entertain a case before it, is a decision by that Court that it has no legal and judicial authority and power to look into or consider the merit of a dispute it is called upon to decide by the parties. Even though it is a Court of first instance whose decision is subject to an appeal to this Court under the Constitution, it lacks the vires under the same Constitution to in effect, vary the final decision that it lacks jurisdiction to adjudicate over the case by proceeding to decide the issues raised in the case on the merit either by hearing evidence or as in the Appellant’s case, consideration

and evaluation of the affidavit evidence setting out the facts on which the case was premised. That procedure would be to encourage or make that Court to sit on appeal over its decision and take a procedural step which is in direct, irreconcilable conflict with its earlier decision. Once again, the moment a trial Court decides that it lacks jurisdiction to adjudicate over or entertain a case before it, that would end its authority over the case and the only proper order it can make in the case, is the consequential one of formally terminating the case; the order is to strike out the case from its cause list. The above position would appear to be an exception to the general principle of law that a Court, trial or appellate, has a duty to consider all the issues placed before it by the parties in a case, as stated and restated in the cases of inter alia, CHUKWU V. SOLEHBONEH AND IROLO V. UKA (both supra). The Court must have decided that it is vested with or seized of the requisite jurisdiction to adjudicate over or entertain a case before its duty to consider any or all the issues raised therein by the parties can properly arise in the case. Where a Court

decides that it lacks the jurisdiction to adjudicate over a case, its primary legal and judicial duty ends in the case with that decision, at its stage. In the above premises, the submissions by the learned SAN for the Appellant that the Federal High Court had the duty to evaluate the evidence of the parties would have applied only if the objection to its jurisdiction had been overruled and dismissed and that Court had found that it had the requisite jurisdiction to entertain the Appellant’s case. The cases cited by him on the duty to and factors to be considered in the evaluation of evidence by a trial Court, do not avail the Appellant in this appeal. The Appellant’s case is not one in which the Federal High Court failed to evaluate the evidence adduced before it by the parties, but one of lack of jurisdiction on the part of that Court, which is the crucial condition precedent to existence of the duty to embark on or engage in the evaluation of such evidence. In the result, my resolution of the Appellant’s issue is that the Federal High Court was right to have struck out the Appellant’s case after a finding that it lacks the requisite jurisdiction to

adjudicate over it. After such finding, that Court had no power and duty to embark on determining the case on the merit over which it lacks jurisdiction to adjudicate.

Be that as it may, it should be observed that since by Order 7 Rule 2(1) of the Rules of this Court all appeals shall be by way of rehearing, so the holding on this ground notwithstanding, an appeal to the Court of Appeal is like a complaint against the decision of the trial Court. In IWEKA VS. SCOA (NIG.) LTD (2000) LPELR 1536 (SC), per Onu, JSC, the Supreme Court held that an appeal is an invitation to a Higher Court to find out whether on proper consideration of the facts placed before it and the applicable law that Court arrived at a correct decision. The Black’s Law Dictionary, Sixth Edition page 96 defines the word “Appeal” as:
“Resort to a superior (i.e. appellate) Court to review the decision of an inferior (i.e. trial) Court or administrative agency, A complaint to a higher tribunal of an error or injustice sought to be corrected or reversed.”

It is in the light of the foregoing that this Court overrules the Preliminary Objection of the 2nd Respondent.

Now, the Appellant argued this appeal based on the issues formulated as follows:
“1. Whether the trial Court was not wrong in dismissing the Appellant’s case on ground that same is statute-barred. (Grounds 1, 2, 4 and 7 of the Notice of Appeal).”

Learned Appellant’s Counsel submitted that the decision of the trial Court sustaining the preliminary objection of the 1st and 2nd Respondents was wrong for the reason that it was based on the misconception of the trial Court that the suit was a challenge to the emergence of delegates at the 2018 congress(es) of the 1st Respondent and it relates to the 1st respondent’s choice of indirect primary for the conduct of the primary election and that the suit is founded on the application of the principle of lis pendens, thus making the case a pre-primary matter, while the Appellant did not challenge the 1st Respondent’s choice of indirect primary or validity of the congress or congresses that produced the delegates, otherwise the Appellant would have sought reliefs seeking to invalidate the choice of that mode and or the congress or congresses; that the Appellant never did so and no question or relief contained in the

Originating Summons sought to fault that choice or the said congresses; that the fulcrum of the Appellant’s case however is that since the 1st Respondent had elected or opted to conduct the primary by indirect mode, it was bound to comply with the extant provisions of its own constitution and Electoral Guidelines and the provisions of the Electoral Act in that regard, rather than failing to comply with all the requirements in conducting the primary election on 21/7/2020 fundamentally flawed or affected, referring to paragraph 7 of the questions for determination as the main issue. This Court was invited to hold that the Appellant never challenged the choice of the mode of primary election nor the congress(es) which produced the delegates, nor on the doctrine of lis pendens.

Furthermore, it was submitted that the trial Court was wrong in fixing the date of accrual of the Appellant’s cause of action to 17/7/2020 or to any date prior to 21/7/2020; that by so holding the lower Court had unwittingly admitted that:-
(a) The suit is purely a pre-election matter
(b). The subject matter in this suit is a pre-election matter which was governed by both

Section 285(9) and (14) of the Constitution (as amended) and Section 87(9) of the Electoral Act, 2010 (as amended).
(c) The suit relates to or is about (what) happened during and after the primary election of 20/7/2020.

Learned Counsel then submitted that having so admitted all the above issues, it was no longer open to the trial Court to turn round to declare that the suit is a pre-primary matter as it did in its judgment. He then urged us to so hold that the suit is purely a pre-election matter; that a combined reading of Section 285(9) and (14) of the Constitution (as amended) and Section 87(9) of the Electoral Act 2010 (as amended) shows that a pre-election action or matter challenging the validity of what transpired at a primary election pursuant to Section 87(10) of the Electoral Act 2010 (as amended) need be filed within 14 days from the date or time of accrual of the Appellant’s cause of action, otherwise it will be incompetent and or statute-barred, referring to INDUSTRIAL TRAINING FUND vs. N.R.C. (2007) 3 NWLR (PT. 1020) 28 at 62 paras B – C; CONGRESS FOR PROGRESSIVE CHANGE VS. YUGUDA (2012) ALL FWLR (PT. 651) 1466 at 1471 para C;

EGBE VS. YUSUF (1992) 6 NWLR (PT. 245) 1 at 11 – 12 paras F – F; EBOIGBE VS. GONI (2012) 7 NWLR (PT. 1298) 147; DANIEL VS. AYALA (2019) 18 NWLR (PT. 1703) 25 at 39 – 40 paras H – C.

Learned Counsel then raised the following questions for consideration as they relate to cause of action:-
(a) What is a cause of action?
(b) What Court process must be examined to ascertain when a cause of action arose and when time began to run for the purpose of limitation statute or provision.
(c) When did the Appellant’s cause of action accrue in this case?
(d) Was this action commenced within 14 days from the date of accrual of cause of action?

Learned Counsel then referred to a number of Supreme Court and this Court’s decisions dealing with definitions of cause of action amongst which are CHIEF DR. IRENE THOMAS VS MOST REVERED TIMOTHY OMOTAYO OLUFOSOYE (1986) LPELR SC 245; BARR. J.C. UWAZURUONYE VS. THE GOVERNOR OF IMO STATE & ORS. (2012) LPELR-20604 (SC); ALLIED ENERGY PLC VS. MR EGANIOSI AYENUBERU & ORS (2015) LPELR – 25798), IBRAHIM VS. OSIM (1987) 4 NWLR (PT. 67) 965; EGBE VS. ADEFARASIN (NO. 2) (1987) 1 NWLR (PT. 47) 1;

N. UDOH TRADING COMPANY LTD VS ABERE (2001) 11 NWLR (PT. 723) 113.Counsel noted that fundamentally therefore, cause of action consists of two elements, namely:
(a) The complaint; and
(b) The resultant damage or injury.
relying on IBRAHIM VS OSIM (supra) and SAVAGE VS UWECHIA (1972) 3 SC 214 at 221, to the effect that the facts grounding the complaints of a plaintiff are one element while the resultant injury suffered by the plaintiff as a result of those facts, is another thing but both must be present to make the cause of action complete, and in addition a cause of action is said to arise when all the facts necessary to give the plaintiff or claimant a right of action have occurred and when it can be said that there exists in the person who can sue, all the facts that have happened which are essential to prove that the plaintiff or claimant is entitled to judgment, relying on IKINE VS. EDJERODE (2001) 12 SC PT. 11 94; IRAGUNIMA & ANOR VS. IGAH (2011) LPELR – 3862 (CA) and AMEDE VS UBA (2007) LPELR – 9043 (CA); that it is the statement of claim or originating summons of a plaintiff which is normally considered in determining whether there

is cause of action and when it can arise, referring to ASABORO vs. PAN OCEAN OIL CORP. (NIG) LTD (2017) 7 NWLR (PT. 1563) 42 at 67 – 68 paras H-B and EMEKA VS. CHUBA – IKPEAZU (2017) 15 NWLR (pt. 1589) 345; that same principle of law applies when a limitation statute applies, vide KASANDUBU VS. ULTIMATE PETROLEUM LTD (2008) 7 NWLR (PT. 1086) 274 at 297 – 298 paras F – A.

Counsel emphatically stated that neither the provision of Section 285(9) of the Constitution (as amended) nor that of Section 87(9) of the Electoral Act makes use of the phrase “cause of action” but that the operative words used in Section 285(9) of the Constitution (as amended) were “not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit”, thus specifying the determinant of the date of accrual of cause of action. He further submitted that the words “event, decision or action, must be interpreted disjunctively to enable an aspirant to situate his claim within the narrow compass of either of the three indices prescribed therein; that in this case, the Appellant’s aggregation of facts made out in his Originating Summons comprised

of the following:-
(1) The 1st Respondent fixed a date for primary to be held on 20th July, 2020;
(2) Between the choice of a direct and indirect primary, the 1st Respondent opted for indirect primary;
(3) With particular reference to election into the office of Governor of a State, Section 87(2), (3), (4)(c)(i) and (ii), (6) and (7) of the Electoral Act 2010 (as amended) required certain things to be adopted which learned counsel enumerated which were contained or provided in Article 20 (iii) and (iv) (a), (b), (c) and (d) of the Constitution of the 1st Respondent.

He also referred to paragraph 14 (iii) of the Guidelines for the nomination of candidates for the 2019 General Election 2019 – Indirect Primaries which made provision for the method of conducting primaries for Governorship Primaries, which the 1st Respondent failed to comply with in the conduct of its primary election of 20/7/2020 in flagrant disobedience of the Electoral Act 2010 (as amended) and 1st Respondent’s Constitution and Electoral Guidelines by:
(i) Allowing 3,161 delegates that were not democratically elected from their various wards and whose validity and

entitlement to vote were disputed and subject of a pending suit No. FHC/AK/CS/10/19 to vote as delegates in contravention of Article 20 (iv);
(ii) Disregarding the mandatory requirement that delegates must vote by secret ballot and installing instead, an open ballot system;
(iii) If secret balloting had been used, the 2nd Defendant would not have emerged winner of the election when the election results were announced on 21/7/2020.

Learned Counsel also complained of the publishing or advertising or circulation of any material for the purpose of promoting or opposing a particular political party or election of a particular candidate over the radio, television, newspaper, magazine, handbill, or any print or electronic media and also publishing any statement of withdrawal of a candidate at such election knowing that it is false or reckless as to its truth or falsity. Counsel further listed a number of complaints against the conduct of the election, his appeal to the Appeals Committee of the 1st Respondent and then submitted that the said facts and consequent damage/injury well made out in the Appellant’s Originating Summons and affidavit in

support, constituted the Appellant’s cause of action and urged us to so hold that the declaration of the 2nd Respondent as winner of the election in spite of all the acts of non-compliance that pervaded the primary and the refusal of the 1st Respondent’s Appeals Committee to rectify the situation, constituted the cause of action of the Appellant which, put together enured in his favour not earlier than the 21/7/2020 i.e. that the cause of action of the Appellant occurred at the earliest on 21/7/2020 when the decision or action complained of in the suit, which was clearly filed within the period of the 14 days provided for the filing of the suit by law; that there were series of events which commenced before 21/7/2020 but that it was declaration of the result of the primary and not earlier that situated his cause of action. He referred to UBN PLC VS. UMEODUAGU (2004) 13 NWLR (PT. 890) 352 and BELLO VS. YUSUF & ORS (2019) 5 NWLR (PT. 1695) 250 at 282 – 283 paras F-A on a series of events that can culminate in the cause of action. On the 21/7/2020 being the earliest date of the accrual of the cause of action, Learned Counsel referred as to

MOHAMMED ABDULLAHI ADAMU VS. ABDULLAHI SHABA GBARA & 2 ORS in SC/659/2019 delivered on 16/7/2019 affirming the decision of the Court of Appeal in ABDULLAHI SHABA VS MOHAMMED ABDULLAHI ADAMU & 2 ORS in CA/A/308/2019; he submitted that the cause of action in this case will only arise after the conduct of the primary and the declaration of result thereof, citing GWEDE VS. INEC (2014) 18 NWLR (PT. 1430) 56 or in the alternative the cause of action will also arise after the refusal of the Appeals Committee to address the complaints made by the Appellant after he appeared before the Committee on 24/7/2020, and further that the date of accrual of the cause of action is very elastic in view of the operative words “not later than 14 days from the date of the occurrence of event, decision or action complained of in the suit”; that whichever of the two dates i.e. 21/7/2020 or 24/7/2020 when the result was declared and the Appellant appeared before the Appeal Committee respectively, the appellant by filing his suit on 3/8/2020 was within time i.e. 14 days prescribed by law. Counsel then urged us to resolve issue 1 in favour of the Appellant and against the Respondents.

ISSUE 2
“Whether the trial Court was right in holding that the Appellant’s suit relates to pre-primary matters and is predicated on lis pendens which is not a ground for challenging primary election under Section 87(9) of the Electoral Act 2010.” (Grounds 3 and 5 of the Grounds of Appeal)
Learned Counsel submitted that one of the reasons why the trial Court declined jurisdiction to entertain this suit was that it was a pre-primary matter which predicated on the doctrine of lis pendens, referring to pages 849 and 455 – 456 of the Record and submitted that the pronouncement of the trial Court therein contained was misconceived and constitutes gross misdirection. Learned Counsel reiterated his submissions under issue 1 and added that there was no doubt that the Appellant made reference to the delegates whose validity or constitutionality was being challenged and therefore their participation in the primary ought not to have been allowed by the 1st Respondent (referring us to pages 37 – 45 of the Record) and urging the Court to invoke the doctrine of lis pendens to invalidate the participation of the said disputed delegates, that is to say the reference to the

said suit No. FHC/AK/CS/10/2019 and the doctrine of lis pendens was only to drive home or support the fact that a substantial number of those delegates who voted at the primary on 20/7/2020 ought not to have been allowed to vote as they were ineligible to do so and given that the validity of their status as executive committee members was disputed and subject of a contest in the said suit; that the reference was merely to strengthen the case of the Appellant against the participation of the said ineligible delegates in the primary on 20/7/2020; that the crux of the Appellant’s complain was that a special congress ought to have been conducted in 2020 to elect delegates for the primary election, referring to paragraph 21 of the Appellant’s supporting affidavit of the Originating Summons; that it is not correct to say that the Appellant’s case was a pre-primary matter or suit predicated on the doctrine of lis pendens or a challenge to the process through which the delegates emerged at congresses, that is to say that reference to the suit and the doctrine of lis pendens could not have had the effect of rendering the Appellant’s suit a pre-primary matter or a

matter founded or predicated on doctrine of lis pendens as found by the trial Court. He then urged us to so hold and also to hold that the finding of the lower Court in this respect has resulted in a gross miscarriage of justice, referring to OGUNTAYO VS. ADELAJA (2009) 6 – 7 SC (PT. 111) 91 at 127; DEVI VS. ROY (1946) A.C. 508; ONAGORUWA VS. STATE (1993) 7 NWLR (PT. 303) 49; GBADAMOSI VS. DAIRO (2007) 1 SC (PT. 11) 151 at 171; OJO VS. ANIBIRE (2004) 5 SC (PT. 1) 1; OKONKWO VS. UDOH (1997) 8 NWLR (PT. 519) 16; IROLO VS. UKA (2002) 7 SC (PT. 11) 77; PAM VS. MOHAMMED (2008) 5-6 SC (PT. 1) 83.

Learned Appellant’s counsel then urged us to resolve this issue in the negative in favour of the Appellant and against the Respondents.
ISSUE 3
“Whether the trial Court was right in failing or refusing to consider the merit of the Appellant’s case and if no, whether this Honourable Court ought to exercise its general powers to hear and determine the substantive suit on its merits”. (Ground 6 of the Notice of Appeal).

This issue is a complaint against the failure or refusal of the trial Court to consider and decide on other issues especially those

raised by the appellant in his originating summons. The Learned Appellant’s Counsel has submitted, after citing the judgment of the trial Court at pages 856 -857 of the Record, that the trial Court overlooked the fact that it was delivering judgment on the entire case and not a ruling on the objection; that the trial Court failed to realize or remember that it had a duty to consider the issues put before it by the parties, as demanded or required by law vide OVUNWO VS. WOKO (2011) 6 SCNJ 124 at 136 – 137; IKPEAZU VS. OTTI & ORS (2016) LPELR (SC); HONEYWELL FLOUR MILLS PLC VS. ECOBANK (2018) LPELR – 45127 (SC); OKONJI & 2 ORS VS. GEORGE NJOKANMA & 2 ORS. (1999) 14 NWLR (PT. 638) 250 at 270 paras E-F; OKONJI VS. NJOKANMA (1991) 7 NWLR (PT. 202) SC 137 at 145 – 146; EGHAREVBA VS. OSAGIE (2009) 18 NWLR (PT. 1173) 299 at 310 – 311 paras H – A; IROLO VS. UKA (supra) 225 paras D – H; EFCC VS AKINGBOLA (2015) 11 NWLR (PT. 1470) 249 at 301 paras C – D.

Learned Appellant’s Counsel submitted further that the lower Court ought to have considered all the issues before it because it is a Court of first instance and not an appellate Court, relying on

BRAWAL SHIPPING (NIG) LTD VS. ONWADIKE CO. LTD (2000) 6 SCNJ 508 at 512; that the failure of the trial Court to consider all the issues or determine all the questions raised in his Originating Summons has constituted a violation of the Appellant’s right to fair hearing, relying on OVUNWO VS. WOKO (supra) and BRAWAL SHIPPING (NIG.) LTD VS. ONWADIKE CO. LTD (supra); that the effect of the stance of the trial Court is that it renders the proceedings and judgment of the trial Court a nullity and liable to be set aside, relying on OBIESIE vs. OBIESIE (2007) 16 NWLR (PT. 1060) 223 at 232; ABAH VS. MONDAY (2015) 14 NWLR (PT. 1480) 569 AT 595 PARAS G – H; IKA LOCAL GOVERNMENT AREA VS. MBA (2007) 12 NWLR (PT. 1049) at 702 paras E – F. Counsel urged us to so hold and set aside the judgment of the trial Court and exercise our general powers under Section 16 of the Court of Appeal Act to hear the matter and determine same on its merit, in view of the fact that there are no witnesses except affidavit evidence of the appellant and Respondents.

On the whole, learned Appellant’s Counsel urged us to allow the Appeal, set aside the judgment of the lower Court and enter

judgment for the Appellant on the grounds:
“1. that the trial Court was absolutely wrong in dismissing the Appellant’s case on ground that same is statute-barred.
2. On the contrary, the Appellant’s suit was filed within the time constitutionally prescribed as his cause of action accrued not earlier than 21st July, 2020.
3. The trial Court was very wrong in holding that the Appellant’s suit relates to pre-primary matters. It was also wrong in holding that the suit is or was predicated on lis pendens.
4. The trial Court was wrong in failing or refusing to consider the merit of the Appellant’s case and thereby flagrantly breached the Appellant’s right to fair hearing and this renders the entire proceedings and judgment of the lower Court a nullity and ought to be set aside.
5. This is an appropriate case in which this Honourable Court ought to exercise its general powers to hear and determine the substantive suit on its merit. Having regard to the case made out by the Appellant in his Originating Summons, your Lordships ought to find for the Appellant by entering judgment for him in terms sought in his Originating Summons.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned Counsel concluded by urging this Court to allow the appeal, set aside the judgment of the trial Court and instead enter judgment for the Appellant as per the reliefs in his Originating Summons.

1st Respondent in his Brief of Argument donated 5 issues for determination and argued same based on the grounds of Appeal thus:
“ISSUES
(1) HAVING REGARD TO THE CIRCUMSTANCES OF THIS CASE, WHETHER THE TRIAL COURT WAS NOT RIGHT WHEN IT HELD THAT APPELLANT’S CASE CENTRES AROUND THE ISSUES CONCERNING THE ADOPTION OF INDIRECT MODE OF PRIMARY ELECTION AND THE CAUSE OF ACTION ON THE 17TH JULY, 2020 WHEN THE 1ST RESPONDENT ELECTORAL COMMITTEE OPTED FOR INDIRECT MODE OF PRIMARY ELECTION? DISTILLED FROM GROUND 7 OF THE NOTICE OF APPEAL;
(2) HAVING REGARD TO THE CIRCUMSTANCES OF THIS CASE, WHETHER THE TRIAL COURT WAS NOT RIGHT WHEN IT HELD THAT THE APPELLANT’S SUIT WAS STATUTE BARRED? CULLED FROM GROUNDS 1 AND 4 OF THE NOTICE OF APPEAL;
(3) HAVING REGARD TO THE CIRCUMSTANCES OF THIS CASE, WHETHER THE TRIAL COURT WAS NOT RIGHT WHEN IT HELD THAT THE ISSUES RAISED BY THE APPELLANT RELATE TO PRE-PRIMARY ELECTION? CULLED FROM GROUND 3 OF THE

NOTICE OF APPEAL;
(4) HAVING REGARD TO THE CIRCUMSTANCES OF THIS CASE, WHETHER THERE WAS NO AMBIT OF THE APPELLANT’S CASE THAT WAS PREDICATED ON LIS PENDENS AND WHETHER THE TRIAL COURT WAS NOT RIGHT TO HOLD THAT LIS PENDENS IS NOT A GROUND FOR CHALLENGING PRIMARY ELECTION UNDER SECTION 87 (9) OF THE ELECTORAL ACT (AS AMENDED) DISTILLED FROM GROUND 5 OF THE NOTICE OF APPEAL; AND
(5) HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, WHETHER THE TRIAL COURT FAILED OR REFUSED TO CONSIDER THE MERIT OF THE APPELLANT’S CASE OR WHETHER THIS HONOURABLE COURT CAN INVOKE ITS POWER UNDER SECTION 15 OF THE COURT OF APPEAL ACT, 2004? DISTILLED FROM GROUND 6 OF THE NOTICE OF APPEAL.”

The submissions of Learned Counsel can be summarised thus:
On issue 1:
(1) That the trial Court was right when it held that the Appellant’s case centres on the 1st Respondent’s choice of indirect primary and that his cause of action accrued on the 17/2/2020 when the 1st Respondent’s Electoral Committee opted for indirect mode of primary election, because the first complaint of the Appellant before the trial Court was about the decision of the Electoral Committee of

the 1st Respondent’s mode/procedure – “indirect” as apposed to “direct” primaries, as contained in paragraphs 12, 13, 18, 19, 21, 22, 24, 33, 35, 36 and 55 of the Affidavit in support of the Originating Summons, questions 1, 2, 3, 4, 7 and 8 for determination and reliefs 1 2 3 4 7 and 8 therein (see pages 4 – 20 of the Record).
(2) That it is evidently clear from the Record that the Appellant’s Originating Summons together with the supporting affidavit and exhibits reveal unequivocally that at the best to the Appellant and at the worst to the Respondents, the cause of action on the procedure or method adopted occurred on 17/7/2020 when the Chairman of the 1st Respondent’s Election Committee announced to the public including all the aspirants, the Appellant inclusive, that the system of indirect primary election would be adopted for the 1st Respondent in Ondo State Governorship primary election, referring to paragraphs 18 and 19 of the affidavit in support of the Originating Summons on pages 3 – 14 of the Record;
(3) That the decision of the Election Committee announced to the public was the culmination of the decision of the Committee on the

various supplication of the 11 aspirants (including the Appellant) made to the Election Committee some 9 days earlier, referring to paragraphs 15 and 18 of the Supporting Affidavit of the Appellant on the mode of election;
(4) That under Section 285(9) of the Constitution of Nigeria 1999 (as amended), the event, decision and action regarding the mode of election was taken or crysterlized on 17/7/2020, the date of the announcement of the decision of the Election Committee to conduct the Primary election by indirect system, rendering reliefs 1 and 2 of the Appellant statute-barred, citing IDIAGBON VS APC (2019) 18 NWLR (PT. 1703) 102 at 119 paras E – H and paragraphs 13, 18, 19, 22, 23, 24 and 28 of the affidavit in support of the Originating Summons at pages 12 – 15 of the Record.

Learned 1st Respondent’s Counsel urged us to affirm the findings of the trial Court and dismiss the appeal with substantive cost.

On issue 2, Learned Counsel adopted his submissions under issue 1 and then added that the trial Court was right in holding that the suit of the Appellant was statute-barred and that the submissions of the Appellant were misconceived as it

is the various dates that the decision, action and event viz a viz the date of filing the suit that determine whether or not the suit is statute-barred; that in this case it is clear that the suit was filed outside the 14 days period prescribed by law, referring to paragraphs 12 – 13, 18 – 19, 21 – 22, 24, 33, 35 – 36 and 55 of the supporting affidavit of the Appellant, and questions 1 – 4 and 7 – 8 for determination at pages 4 – 5, 13 – 20 of the Record; that the event of 20/7/2020 generated the questions 2, 5 and 6 on pages 4 – 5 of the Record and urged us to so hold and uphold the judgment of the trial Court at page 848 of the Record and the case of GARBA vs. APC (2020) 2 NWLR (PT. 1708) 345 as it supported the decision on lis pendens which is situated on the pending suit before the Federal High Court, Akure in Suit No. FHC/AK/CS/10/2009.

Learned Counsel sought leave of Court and argued issues 3 and 4 together as they are interrelated and for convenience and proper analysis. He submitted that the trial Court was right in holding that the suit of the Appellant qualified as a pre-primary election thereby ousting the jurisdiction of the trial Court to

entertain and determine same, relying on PDP vs. SYLVA (2013) 13 NWLR (PT. 1316) 85 at 138 – 139; that the Appellant’s suit is completely outside the purview of Section 87 of the Electoral Act 2010 (as amended).

Counsel noted that out of the 13 reliefs sought by the Appellant, 7 are declaratory, principal among which are reliefs 1 – 3 which are predicated on the doctrine of lis pendens having been predicated on pending suit before the Federal High Court Akure in Suit No. FHC/AK/CS/10/2009 while all the other reliefs are clearly related to and/or connected with pre-primary affairs (being internal affairs) of the 1st Respondent, as it generated the emergence of the delegates in 2018 who voted in the primary election of 20/7/2020, thereby ousting the jurisdiction of the trial Court and therefore any attempt by the trial Court to entertain and determine the suit, granting the reliefs set out in the Originating Summons could have amounted to expanding the jurisdiction of the trial Court, which would be outside its power to do, citing COURT OF APPEAL (sic) EDO STATE VS. AGUELE (2018) 3 NWLR (PT. 1607) 369; APC VS. NDUUL (2018) 2 NWLR (PT. 1602) 1 since

jurisdiction cannot be determined in vacuo but in relation to the claims of the Appellant, relying on PORTS AND CARGO HANDLINGS SERVICES LTD VS. MIGFO NIG. LTD (2012) LPELR – 6725 (SC); AFRICAN NEWSPAPER VS. NIGERIA (1985) 2 NWLR (PT. 6) 137 at 159 – 160 paras F – B; LADOJA VS. INEC (2007) 12 NWLR (PT. 1047) 19; OHAKIM VS. AGBASO (2010) 19 NWLR (PT. 1226) 172.

Learned Counsel emphasised that the Appellant’s claim at the trial Court were predicated on lis pendens which is not a ground that can be accommodated by the express provision of Section 87 of the Electoral Act, 2010 (as amended) by any stretch of interpretation, otherwise the trial Court would be going outside its jurisdiction; that questions 1, 2 and 3 for determination and the corresponding reliefs 1, 2 and 3 in the Originating Summon relate to the pendency of suit No. FHC/AK/CS/10/2009 as basis for determining the Appellant’s suit whereas Section 87 of the Electoral Act 2010 (as amended) and Sections 251 and 285 (14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are clearly circumscribed as to what constitutes pre-election matters, which does not include the

Appellant’s suit.

That the Appellant’s claim cannot be accommodated by the Court under Section 251(1) and 285 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or Section 87 of the Electoral Act, 2010 (as amended) in invoking the jurisdiction of the Court, considering the questions 1, 2 and 4 for determination and therefore the trial Court was right in holding as it did on pages 854 -856 of the Record and that we should so affirm that decision, and resolve issues 3 and 4 in favour of the Respondents and against the Appellant, citing OGUNTAYO VS. ADELAJA (2009) 6 – 7 SC (PT. 111) 91; DEVI VS. ROY (1946) A.C 508; ONAGORUWA VS. STATE (1993) 7 NWLR (PT. 11) 151 as relied upon by the Appellant to be unhelpful to his case.

On issue 5 dealing with the invitation by the Appellant to this Court to exercise its general powers under Section 15 of the Court of Appeal Act under Ground 6 of the Appellant’s Notice of Appeal, learned Counsel submitted that invitation cannot be entertained and granted as the ground 6 is incompetent, citing AGBAKOBA VS. I.N.E.C (2008) 18 NWLR (PT. 1119) 489; ODEDO VS. INEC (2008) 17 NWLR (PT. 1117) 554.

Counsel therefore urged us to discountenance issue 5 in the Appellant’s brief as it is based on an incompetent Ground of Appeal which is Ground 6. Furthermore, that the invocation of Section 15 of the Court of Appeal Act, 2004 cannot avail the Appellant since the trial Court no longer has the jurisdiction to deal with the suit, citing ALL PROGRESSIVE CONGRESS & ANOR VS. JOHN UPAN ODEY & ANOR (2019) LPELR – 47702; USMAN ABUBAKAR TUGGAR VS. ADAMU MUHAMMAD BULKACHUWA & ORS (2019) LPELR-47883; IHEDIOHA VS. OKOROCHA (2016) 1 NWLR (PT. 1492) 147 Ratio 17; METUH VS. FRN (2017) 11 NWLR (PT. 1575) (in complete citation), UGBA VS. SUSWAM (2013) 4 NWLR (PT. 1345) 427 at B477 (sic) paras B – D. Learned Counsel submitted further that by exflusion of time the period stipulated by law is 180 days which lapsed on the 3rd day of February 2021 and therefore this Court cannot exercise its powers under Section 15 of the Court of Appeal Act, 2004; that in the most unlikely event that this Court invokes its power as aforesaid, this Court should peruse and scrutinize the counter affidavit of the 1st Respondent and written address in opposition to the claims of the Appellant

at the lower Court as contained on pages 433 – 505 of the Record, urging this Court to refuse the grant of the Appellant’s reliefs contained in paragraph 27, pages 6 – 8 of his Brief; that the trial Court considered the case of the parties on the merit and determined same without the necessity of treating the questions submitted for determination since they have been subsumed in the issues decided in the Preliminary Objection, relying on ADEPOJU VS. JOSEPH OLU OJO (2012) 10 NWLR (PT. 1309) 552 at 576; that the cases relied upon by the Appellant are unhelpful to his case and urged us to so hold and dismiss the suit of the Appellant. These cases are:
(1) OVUNWO VS. WOKO (2011) 6 SCNJ 124 (PT. 136 – 137)
(2) IKPEAZU VS. OTTI & ORS (2016) LPELR (SC)
(3) HONEYWELL FLOUR MILLS PLC VS. ECOBANK (2018) LPELR – 45127 (SC)
(4) OKONJI VS. NJOKANMA (no citation);
(5) BRAWAL SHIPPING (NIG) LTD. VS. ONWADIKE CO. LTD. (2000) 6 SCNJ 508.
(6) OBIESIE VS. OBIESIE (2007) 16 NWLR (PT. 1060) 223;
(7) ABAH VS MONDAY (2015) 14 NWLR (PT. 1450) 569;
(8) IKA LOCAL GOVERNMENT AREA VS. MBA (2007) 12 NWLR (PT. 1049) 676.

Learned Counsel then urged us to hold that the claim of the Appellant before the trial Court was statute-barred and that Court has no obligation to delve into the merit of the case and so was correct as it so held, relying on INEC VS. OGBADIBO LOCAL GOVERNMENT (2016) 3 NWLR (PT. 1498) 167 at 193 – 194, and uphold the submissions of the 1st Respondent and dismiss the appeal with substantial cost against the Appellant.

The 2nd Respondent formulated 3 issues for the determination of this appeal as follows:-
“(i) Whether on the materials before the lower Court, the learned trial judge was not right in finding that appellant’s suit was statute barred at the time it was filed – covers grounds 1, 2, 4.
(ii) Whether the trial Court was wrong in finding that the issues connected with the adoption of indirect primary was a domestic affair of the 1st Respondent, in other words, a pre-primary matter – covers grounds 3 and 5.
(iii) Whether having resolved the preliminary objection challenging the competence of the Appellant’s suit in favour of the respondents, the learned trial judge was wrong not to have proceeded to consider the case an its merit”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On issue (i), Learned Counsel for the 2nd Respondent observed that this issue is the same as issue 1 of the Appellant. He then reviewed the findings of the trial Court to the effect that considering the claims of the Appellants i.e the questions raised for determination, the reliefs sought, the affidavit in support of the Originating Summons together with the exhibits there-to attached, the cause of action accrued on 17/7/2020 while the suit was filed on 3/8/2020- clearly outside the statutory period of 14 days provided by the law, and then submitted that the Appellant’s questions 1, 2 and 3 based on paragraphs 13, 18, 19, 22-24 and 28 of the supporting affidavit, are clearly based on the indirect mode of the primary election which event occurred as far back as 17/7/2020 to the knowledge of the Appellant; that this suit was instituted outside the period of 14 days provided by law and is therefore statute barred, relying on GARBA VS. APC (2020) 2 NWLR (PT.1708) 345 AT 366 G – H; BIEM VS. SDP (2019) 12 NWLR (PT.1687) 377 AT 407 C-F AND SAKI VS. APC (2020)1 NWLR (PT.1706) 515 at 543 F-C; further that even if the Appellant contends that cause of action was argued on

20/7/2020 the suit was filed outside the period of 14 days as it was filed on 3/8/2020 and by paragraphs 10, 15, 27, 39, 40 and 41 of the supporting affidavit of the Appellant, reliefs 2, 5 and 6 and questions 2, 5 and 6, for determination and the authorities of EDEBIRI vs EDEBIRI (1997) 4 NWLR (PT. 498) 165 AT 174 and OREDOYIN VS AROWOLO (1989) 4 NWLR (PT. 114) 172, the date stated by the Appellant for the conduct of the primary election was 20/7/2020 and the Appellant must be pinned to that date, from which the time to file the suit started to run, which put the suit beyond 14 days as at 3/8/2020 when the suit was filed.

Learned Counsel added that by the operation of the Interpretation Act regarding holidays, which include Sundays, the Appellant fell into error by extending the 14 days by one day, relying on UGWU VS IGWE (1999) 4 NWLR (PT. 600) 649 AT 659; APC VS UMAR (2019) 8 NWLR (PT. 1675) 564 AT 575 A; ANPP VS GONI (2012) 17 NWLR (PT. 1289) 147 and the unreported case of ABDULLAHI SHABA GARBA & ORS VS ADAMU & 2 ORS delivered on 24/5/2019 cited by the Appellant at paragraph 4.1.21 of his brief.

On the contention of the Appellant that

cause of action accrued either on 21/7/2020 or 24/7/2020, learned Counsel submitted that the issue was raised and considered at the lower Court which dismissed same at page 848 of the Record and there is no appeal against that finding and so same cannot be raised at this stage, relying on AKERE VS GOVERNOR OF OYO STATE (2012) 12 NWLR (PT. 1314) 240 AT 269 and SCC NIG. LTD VS ANYA (2012) 9 NWLR (PT. 1305) 213 AT 222 G – H.

Learned Counsel then urged us to resolve this issue in favour of the 2nd Respondent and dismiss the appeal.

On issue (ii) Learned Counsel referred to the questions raised by the Appellant and page 850 lines 3 – 12 of the Record and submitted that the trial Court was right to have held that the Appellant’s suit qualified as a pre-primary election because the Appellant did not challenge what transpired on the day of the primary election but the events prior to the conduct of the primary election, judging from the questions raised for determination, the reliefs claimed, the averments in the affidavit in support of the Originating Summon, especially questions 1, 2 and 3, reliefs 1, 2 and 3 which challenge the way and manner the

delegates were elected in 2018, rendering the suit statute barred as found and held by the trial Court, despite the classification of the cause of action as pre-election matter which has no remedy to the suit of the Appellant, relying on APC VS UMAR (2019) 8 NWLR (PT. 1675) 564 AT 575 G – H. It is further submitted that the issue of what form of primary election to adopt, and election of delegates and determination of who qualifies as a delegate fall within the domestic affairs of a registered political party in respect of which the Court will not interfere, referring to:-
i. AGI VS PDP & ORS (2017) 17 NWLR (PT. 1595) 386 AT 475B -C;
ii. ONUOHA VS OKAFOR (1983) 2 SCNLR 244;
iii. EMEKA VS OKADIGBO (2012) 18 NWLR (PT. 1331) 55;
iv. ABUBAKAR VS TANKO (2019) 3 NWLR (PT. 1658) 1 AT 19 D-G.
He then urged us to resolve issue (ii) in favour of the 2nd Respondent and dismiss the appeal.

On issue (iii) which is a query on the trial Court not considering and determining the suit on its merit, Learned Counsel submitted that having upheld the preliminary objection raised by the 1st and 2nd Respondents, there was no obligation on the

trial Court to proceed any further to consider the merit of the case as to do so could have been assuming jurisdiction where there was none. He submitted that all the cases cited by the Appellant in respect of denial of fair hearing were not supportive of his case since the trial Court has upheld the preliminary objection that it has no jurisdiction to entertain and determine the suit, relying on INAKOJU VS ADELEKE (2007) 4 NWLR (PT. 1025) 423 AT 613, OLUTOLA VS UNIVERSITY OF ILORIN (2004) 18 NWLR (PT. 905) (incomplete citation); UBN VS SOGUNRO (2006) 16 NWLR (PT. 1006) 564 17 NWLR (PT. 1009) 503 AT 520 C- F. Learned Counsel noted that all the cases cited by the Appellant were those in which no preliminary objections were successfully raised and upheld. He then urged us to resolve this issue in favour of the 2nd Respondent and dismiss the appeal.

Learned Counsel then took on his NOTICE OF INTENTION TO AFFIRM which we shall treat later in the resolution of the issues.

On his part, the 3rd Respondent adopted the 3 issues formulated by the Appellant and submitted as follows:-
ISSUE 1
Learned 3rd Respondent’s Counsel referred to

Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), ABUBAKAR VS NASAMU (2012) 17 NWLR (PT. 1330) 459, OKEREKE VS YAR’ADUA (2008) ALL FWLR (PT. 430) 636 and submitted that the case of the Appellant is anchored on pre-election matter in which if there is any challenge, same should be filed within 14 days from the occurrence of the event but that the Appellant filed his suit beyond the statutory period of 14 days.

Learned Counsel submitted that the case being statute-barred can be better appreciated when looked at from two perspectives:
1. As a pre-primary election matter on the Congress of 17/7/2020 held by the Executive Committee of the 1st Respondent then it is the law that that choice of aspirants is not justiceable and so the learned trial Judge was right in his findings and holding as contained at pages 849 and 856 of the Record.
2. The above position was further affirmed by the holding of the trial Judge at page 850 of the Record.

Learned Counsel relied on APC VS LERE (2020) 1 NWLR (PT. 1705) 205 AT 284 PARAS. B – C; PDP VS SYLVA (2012) 13 NWLR (PT. 1316) 85 AT 138 – 139; ZAILANI VS GUMAU (2020) 2 NWLR

(PT. 1709) 452 AT 466 PARAS. C – F; SAKI VS APC (2020) 1 NWLR (PT. 1706) 515 AT 543 PARAS F – G.

Learned Counsel then submitted that considering the period from 20/7/2020 to 3/8/2020 the suit was filed after 14 days and that the contention of the Appellant that his cause of action accrued on 21/7/2020 when the result of the primary election was announced, was erroneous, citing INEC vs OGBADIBO (2016) 3 NWLR (PT. 1498) 167 AT 205 PARAS D – G and APC VS LERE (SUPRA); APC VS WALI (2020) 16 NWLR (PT. 1749) 82 AT 99 PARAS B – D; GBENGA VS APC (2020) 14 NWLR (PT 1744) 248 AT 267 PARAS C – E. Counsel further submitted that the case of the Appellant was caught by statute of limitation since the cause of action arose on 20/7/2020, when the election complained of was held, relying on BELLO VS YUSUF (2019) 15 NWLR (PT. 1695) 250 AT 288 and that time began to run from the said 20/7/2020 relying on HASSAN VS ALIYU (2010) 17 NWLR (PT. 1223) 599 PARAS B – D; SALIM VS CPC (2013) 6 NWLR (PT. 1351) 501 AT 524 – 525 PARAS H – C; UMERIEH VS APGA (2020) 4 NWLR (PT. 1713) 16 – 17 PARAS E – G. Counsel further submitted that the contention of the Appellant in his submission in

paragraph 4.1.22 at page 24 of his Brief that his cause of action arose alternatively after the Appeal Committee of the 1st Respondent refused to address his complaint on 24/7/2020 is erroneous as resort to party mechanism is only an option that does not derogate from the powers of the Courts and does not stop time from running, citing in support GBILEVE vs ADDINGI (2014) 16 NWLR (PT. 1433); GBENGA VS APC (SUPRA); APC VS UDUJI (2020) 2 NWLR (PT. 1709) 541 AT 566 PARA E; GARBA VS APC (2020) 2 NWLR (PT. 1708) 345 AT 360 PARAS D – E; TOYIN VS PDP (2019) 9 NWLR (PT. 1676) 60; AMADI VS INEC (2013) 4 NWLR (PT. 1345) 595 and GARBA VS TSOIDA (2020) 5 NWLR (PT. 1716) 1. Consequently, Counsel submitted that the trial Court was on sound footing by holding that the case of the Appellant was statute-barred, and urged us to resolve this issue against the Appellant.

ISSUE 2
Learned Counsel referred to the questions for determination and reliefs and contended that the Appellant’s case is a challenge to the constitutionality and validity of the Ward, Local Government and State Executives selected or appointed in 2018 and then submitted that the law is clear that

internal wrangling of a political party such as validity of elected executives of a party cannot be accommodated under Section 87 of the Electoral Act, 2010 (as amended), relying on HENEIKEN LOKPOBIRI VS OGOLA (2016) (PART 1499) (incomplete citation); that Section 87(9) of the Electoral Act 2010 (as amended) does not permit suits such as the present one filed by the Appellant, relying on UFOMBA vs INEC (2017) 13 NWLR (PT. 1331) 207 PARA E. Counsel again submitted that the decision of the trial Court in respect of the incompetency of the suit of the Appellant is correct, relying on EGWU OYIBO OKOYE VS INEC & ORS (2010) LPELR (CA); GOVERNOR OF LAGOS STATE VS OJUKWU (1986) 1 NWLR (PT. 68) 621; CHIEF OKOYE & ORS VS SANTILLI & ORS (1991) 7 NWLR (PT. 206) 753; UBN NIG. PLC VS ALHAJI ADAMS AJABULE & ANOR (2011) LPELR – 8239 (SC); ABIODUN VS CJ KWARA (2007) 18 NWLR (PT. 1065) 109.

Learned Counsel then urged us to resolve this issue in favour of the Respondents and against the Appellant.

ISSUE 3
On the position taken by the Appellant that the trial Court did not consider his case on the merit after delivering a Ruling on the two

preliminary objections of the 1st and 2nd Respondents, Learned Counsel submitted that a Court of law is only competent to decide a matter if it possesses the requisite jurisdiction, citing MADUKOLU VS NKEMDILIM (1963) ANLR 585; INEC VS OGBADIBO (SUPRA) 193 PARAS H – B; that by the authorities of the above cases, the trial Court was correct to hold that it lacked the jurisdiction to pry into the suit of the Appellant and that the Court of Appeal cannot invoke its general power under Section 15 of the Court of Appeal Act 2004 as contended by the Appellant on the ground that the trial Court lacks the jurisdiction to entertain the suit in the first place, because its jurisdiction extinguished on 21/1/2021.

In summary, learned Counsel stated that:-
“(1) The case of the Appellant is based on the Congress and Primary Election of the 1st Respondent which was declared to have been filed outside of the 14 days period prescribed by law and therefore statute-barred;
(2) The Appellant having stated that there is a suit No. FHC/AK/CS/10/2019 on the lawfulness of Ward, Local and State Executives, makes the issue incompetent for lis pendens;

(3) The trial Court having found that the case of the Appellant was filed outside the time allowed by law, was right in refusing to venture into the merit of the case;
(4) This Honourable Court (Court of Appeal) cannot presently invoke the provision of Section 15 of the Court of Appeal Act, 2004 to determine the Originating Summons of the Appellant on the merit, the life span of the case at the trial Court having lapsed.”

Learned Counsel to the 3rd Respondent in his conclusion then urged us to dismiss the appeal.

RESOLUTION OF ISSUES
The issues formulated by Counsel for all the respective parties are similar in all material particulars except that the 1st Respondent split issue 1 of the Appellant into 2, making his issues to be five in number.

I will therefore adopt the issues formulated by the Appellant which have been adopted by 3rd Respondent in the determination of this appeal.

ISSUE 1
This issue questions the finding and holding of the trial Court that the suit of the Appellant was statute-barred by reason that the cause of action accrued on the 17/7/2020 but the Appellant did not file the suit until 3/8/2020 outside the

stipulated 14 days by the law. This issue is tied to Grounds 1, 2 and 4 of the Grounds of Appeal.

Let me begin by stating what a cause of action is and when it accrues.
A cause of action is a fact or a combination of facts which when proved would entitle a Plaintiff or Claimant to a remedy against a Defendant, see OSHOBOJA vs AMUDA (1992) 6 NWLR (PT. 250) 690. We often talk of a reasonable cause of action. The Supreme Court has defined a reasonable cause of action as “a reasonable cause of action is a cause of action which (when only the allegations in the statement of claim are considered) has some chance of success”. See ADIMORA VS AJUFO (1988) 3 NWLR (PT. 80) 1; THOMAS VS OLUFOSOYE (1986) 1 NWLR (PT. 18) 699; OGBIMI VS OLOLO (1993) 7 SCNJ 447; SANDA VS KUKAWA L.G.A (1991) 2 NWLR (PT. 174) 379.
The law is settled without disputation, that in determining whether a cause of action exists in a case, the Court has to look at the statement of claim filed by the Plaintiff or Claimant on which the claims made are predicated. Put in another way, the only relevant document a Court has to or needs to consider in the determination of whether a cause

of action or a reasonable cause of action exists or is shown in a case, is the statement of claim which contains all the facts relied upon by the Plaintiff in making a claim against a Defendant and seeking judicial remedy from the Court. See AYANBOYE VS BALOGUN (1990) 5 NWLR (PT. 151) 392. In this case it is the Originating Summons, Affidavit in Support and the Exhibits thereto attached that can determine whether or not there is a cause of action or a reasonable cause of action.
It is to be noted that the facts must be such that prima facie, they show a right in the Plaintiff which has been violated or infringed upon by the acts of the Defendant that would entitle the Plaintiff to approach the Court for a remedy. See OGBIMI vs OLOLO (1993) 7 SCNJ 447; SPDC LTD VS NWAWKA (2003) FWLR (PT. 144) 506.
A cause of action can simply be said to be constituted by either a single fact or a combination of facts or series of facts averred by a Plaintiff in his pleadings which the law will recognize as giving him a right to make a claim against a Defendant for a remedy or relief in Court. The Court at this stage is not concerned with whether or not the Plaintiff

would succeed in proving his claim, as that would only come for consideration when issues are joined and evidence adduced by parties in proof of their case. See BELLO VS A.G. OYO STATE (1986) 5 NWLR 828; SEAGULL OIL LTD VS MONI PULO LTD & ORS (2011) LPELR – 4935 (CA) PAGES 25 – 28 PARAS F – D.

From the facts obtained in the Affidavit Evidence together with the Exhibits, it is clear that the facts which constitute the cause of action in this case are a combination of facts which started on 17/7/2020 and culminated in the announcement of the result of the primary election on 21/7/2020.

Based on this, I do not think that the Appellant should be pinned down to only the event that occurred on the first day. The act or acts which culminated in the cause of action started on 17/7/2020 and terminated on 21/7/2020 with the announcement of the result of the election. In this wise I agree with the Appellant’s Counsel that the cause of action finally accrued on 21/7/2020 as it would not be reasonable for the Appellant to have rushed to Court while the result of the primary election conducted on 17/7/2020 was yet to be announced. Therefore I hold that the

cause of action for the purpose of this result started on 12/7/2020 and finally accrued on 21/7/2020. The 14 day period would therefore terminate on the 3rd August 2020, I so hold. Consequently, the suit was not statute-bared.

We have been invited by the Appellant to make a declaration in relief I to the effect therein contained. Having carefully considered the provisions of Section 87 (1), (2), (4), (7) and (8) of the Electoral Act 2010 (as amended), Article 20 (iii) and (iv) (a), (b), (c) and (d) of the 1st Respondent’s Constitution 2014 (as amended) and the Guidelines for the Nomination of candidates for the 2019 General Election 2019 – Indirect Primaries (“Electoral Guidelines”), indirect primaries for the purpose of nominating a candidate must mandatorily be done or conducted by an Electoral college of delegates democratically elected by members of the party from the various wards contained in the particular constituency at congress. I so declare.

ISSUE 2
This issue is based on the finding of the trial Court at pages 849 and 855 – 856 of the Record that the suit is a complaint against a pre-primary election matters and that same is

predicated on a pending suit No. FHC/AK/CS/10/2019 challenging the conduct of selection of delegates by the 1st Respondent.

I have already held under issue 1 that the cause of action in this suit commenced from 17/7/2020, through 20/7/2020 and culminated in the announcement of the result of the primary election on 21/7/2020. It presupposes the fact that anything that happened before this period would not affect this suit. Consequently the submissions of learned counsel that this case is predicated on pre-primary matters hence ousting the jurisdiction of the Court would not be based on good law, considering the facts and circumstances of this case. The trial Court was not called upon to declare the process which brought the delegates on board null and void. The pending suit before the Federal High Court Akure Division was only referred to by the Appellant to support his case that the delegates should not have been used to vote in the primary election of 20/7/2020. I therefore resolve this issue in the negative and in favour of the Appellant.

ISSUE 3
Under this issue, the failure or refusal of the trial Court to consider and rule on the case of

the Appellant and Respondents on its merit has been called to question. This Court has been invited to exercise its general powers under Section 15 of the Court of Appeal Act 2004 to assume jurisdiction and consider the suit of Appellant an its merit. At pages 856-857 of the Record the trial Court had held as follows:
“Having resolved these 3 issues in favour of the 1st and 2nd Defendants that is the suit is statute barred, lis pendency cannot be accommodated under Section 87(9) of the Electoral Act as amended and suit of the plaintiff is non justiciable relating to pre-primary election matter which cannot be envisaged under Section 87 (9) of that Electoral Act, I do not think it is proper to resolve the other grounds raised by the 1st and 2nd defendants. I think the justice of the case requires that the suit be dismissed for want of jurisdiction. It is settled law that where the suit is statute barred, the consequential order to be made is an order dismissing the suit. The suit is hereby dismissed…”

I have already determined issues 1 and 2 in favour of the Appellant to the effect that the suit of the Appellant was not a pre-primary

matter and was not statute barred, therefore it is expedient to now consider the resolution of this issue together with the invitation by the Appellant to this Court to look into the merit of the suit and make appropriate findings and decision thereon. The effect of my resolutions of issues 1 and 2 is that the trial Court prematurely terminated the suit of the Appellant. It is incumbent on this Court to consider the invitation of the Appellant under Section 15 of the Court of Appeal Act 2004, which provides thus:-
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to made or grant and may direct any necessary inquires or account to be make or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been

instituted in the Court of Appeal as the Court of first instance and may rehear the case in whole or in part or remit it to the Court below for the purposes of such re-hearing or may give such other direction as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be reheard by a Court of competent jurisdiction.”
Even though this Court has been bestowed with such wide powers as prescribed by the Act, certain conditions must exist in the case before this Court can competently exercise the powers, which conditions are:-
(a) That the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it;
(b) That the real issue raised by the claims of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal;
(c) That all necessary materials must be available to the Court for consideration;
(d) That the need for expeditious disposal of the case or suit to

meet the ends of justice must be apparent on the face of the materials presented; and
(e) That the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.
See OBI VS. I.N.E.C (2007) 1 NWLR (PT 1016) 465; AMAECHI VS. I.N.E.C. (2008) 5 NWLR (PT. 1080) 227; INAKOJU VS. ADELEKE (2007) 4 NWLR (PT.1025) 423; AGBAKOBA VS. INEC (2008) 18 NWLR (PT.119) 489; OKEKE VS. NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018) LPELR- 43781 (CA) PP 31-32; NJIDEKA EZEIGWE VS. CHIEF BENSON CHUKS NWAWULU & ORS (2018) LPELR – 1201 (SC).
Having carefully considered the materials available, and the submissions of learned counsel in this case, I hold the firm view that this is a proper case in which this Court can exercise its powers under Section 15 of the Court of Appeal Act 2004. I will therefore proceed to consider the case on the merit.

From the Appellant’s affidavit in support of the Originating Summons, the fulcrum of the Appellant’s complaint against the nomination of the 2nd Respondent by the 1st Respondent as its candidate for the Ondo State Governorship election held on 10/10/2020 can be

summarized thus:-
(a) That 3161 persons were among the names of the delegates listed in the delegates’ list who were the ward Executive Committee Members, the Local Government Executive Members and State Executive Members whose constitutionality and validity of their position is being challenged in the suit No. FHC/AK/CS/10/2019 before the Federal High Court Akure Division, thereby making them unqualified to vote at the primary election conducted on 20/7/2020. (See paragraph 13-31 of the Appellant’s affidavit in support of the Originating summons).
(b) That the 316 ward Executive Committee Members, Local Government Executive Committee Members and State Executive Members ought not to have been delegates in the primary election as their inclusion in the delegates’ list affected the outcome of the primaries and tilted the scale in favour of the 2nd Respondents. (See paragraph 37 of the Affidavit in support of the Originating Summons).
(c) That the primary election held on the 20/7/2020 was not conducted in substantial compliance with the laid down procedure or method of secret ballot system as the 1st Respondent adopted an open secret system for

the conduct of the primary election, in that there were no polling booths or cubicles and voters therefore displayed their ballots papers openly and used their mobile phones to take photographs of the ballot papers indicating to the 2nd Respondent how they voted. (See paragraphs 32-38 of the affidavit in support of the Originating Summons).

From the facts of this case as gleaned from the affidavit evidence together with the exhibits attached, this case can be determined on a single issue which can be formulated as follows:-
“Whether having regard to the entire circumstance of this case the Appellant proved his case to be entitled to the reliefs sought.”

The Appellant commenced this suit by way of Originating summons, one of the four modes of commencing action in our Courts in Nigeria, the other three being by a writ of summons, petition and originating motion. See KOLAWALE vs. ALBERTO (1989)1 NWLR (PT.98) 382 (SC); SECTION 410 of the Companies and Allied Matters Act, 1990; Section 54(1) of the Matrimonial Causes Act 1970; Section 140 of the Electoral Act 2010 (as amended); DOHERTY VS. DOHERTY (1964) NWLR 144.

It is trite that actions or proceedings may be commenced by originating summons where:
(a) the sole issue is one of construction of a written law (e.g the constitution) or instrument made under any written law, or deed, will, contract, or other document, or other question of law;
(b) there is unlikely to be any substantial dispute of facts and
(c) the Rules of Court or any statute specifically direct that the action be commenced by it, e.g. Fundamental Rights (Enforcement Procedure) Rules 1979 and certain applications under the Companies Proceedings Rules 1992, (see Order 2 Rule 1 (1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979; DOHERTY VS. DOHERTY (1964) NWLR 14 and BALONWU VS. OBI (2007)5 NWLR (PT. 1028) 489 (CA).
Generally, Originating Summons is used for non-contentious actions, i.e those actions whose facts are not likely to be in dispute. Where facts are in dispute or riotously so, an Originating Summons Procedure will not avail a plaintiff and he must come by way of a writ of Summons. In other words, an Originating Summons will not lie in favour of a plaintiff where the proceedings are hostile in the sense of violent dispute.

See INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423 (SC) and OSUNBADE VS. OYEWUNMI (2007) ALL FWLR (PT.368) 1004 (SC).
It is trite that Originating Summons does not require pleadings and witnesses are not called. Actions commenced by Originating Summons are decided on affidavit evidence. See BALONWU vs OBI (supra).

As is clear in this case, same was commenced by way of Originating Summons with affidavit to which exhibits were attached. It is elementary that an affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a Court process in writing, deposing to facts within the knowledge of the deponent. Therefore it is a documentary evidence which the Court can admit in the absence of any unchallenged evidence. See AKPOKINIOVO vs. AGAS (2004) 10 NWLR (PT. 881) 894 (CA). It is trite that an affidavit meant for use in Court stands as evidence and must as nearly as possible conform to oral evidence admissible in Court. See LAWAL OSULA vs. U.B.A. PLC (2003) 5 NWLR (Pt. 813) 376 (CA); BAMAIYI VS. STATE (2001) 8 NWLR (PT. 715) 270 (CA).

In a case fought on affidavit, such as the instant case, the plaintiff

(Appellant herein), in order to obtain judgment must prove by affidavit the reliefs sought in his claims, otherwise the action will fail. For example, it is not enough for a plaintiff who seeks a constitutional remedy or a remedy under the constitution by merely flaunting before the Court the constitutional provisions. He must prove, by his affidavit that he deserves the remedy sought. The Court can only give the plaintiff judgment if the facts deposed to in the affidavit vindicate the remedy sought. Consequently, a mere agglomeration of facts which do not vindicate or justify the remedy sought will not give rise to a judgment in favour of the plaintiff. Similarly, the affidavit evidence which would strengthen the facts or stories averred by the Plaintiff should be cogent and substantial to create in the mind of the Court a relief that the Plaintiff has established the assertion contended by him. See A.G. ANAMBRA STATE VS. A.G. FED. (2005) 9 NWLR (PT. 93) 572 (SC). In the instant case, the Appellant has deposed to a 58 paragraph affidavit (pages 10 – 20 of the Record). I have read and summarized the fulcrum of the case of the Appellant in three heads in this

judgment, it is therefore incumbent upon the Appellant to establish his claims by the averments in his affidavit in support of the Originating Summons. (See A.G. ANAMBRA STATE VS. A.G. FED. (supra). The salient facts deposed to by the Appellant in respect to the first head summarized under (a) above are contained in paragraphs 21 – 56 of the affidavit in support of the Originating Summons (pages 14 — 20 of the Record).

Both the 1st and 2nd Respondents have deposed to counter affidavits refuting the facts contained in the affidavit of the Appellant. I shall take a few averments from the affidavit and counter affidavit to demonstrate this.

In paragraphs 21, 22, 23, 26 and 27 of the affidavit in support of the Originating Summons, the Appellant averred that none of the delegates who voted at the primary election on 20/7/2020 was democratically elected; that the choice of the mode of election was rejected by the Appellant and other aspirants; that the decision to conduct the primary election by indirect voting was in defiance of or disregard for the pending suit No. FHC/AK/CS/10/2019; that the 1st Respondent failed to comply with the Guidelines

and constitutional provisions contained in the 1st Respondents Constitution; etc. However, the 1st and 2nd Respondents have refuted these averments in their Counter affidavits. For example, the 1st Respondent in paragraph 8 of the counter affidavit averred that apart from the facts contained in paragraphs 3, 5, 8, 12, 14, 15, 16 and 17 all the paragraphs are either “patently false, factually inaccurate, and/or slanted”. He stated that hearing in the suit No. FHC/AK/CS/10/19 had not commenced; no order or injunction has been issued by the Federal High Court Akure Division stopping the Respondents or any other person from doing anything in respect of the Primary election conducted on 20/7/2020; there was no objection by the Appellant and other aspirants to the use of delegates who had been voting in previous elections for other offices during the general elections; that all the aspirants including the Appellant knew all the delegates who voted and had been having campaign parleys with the delegates across the entire Ondo State long before the names of the delegate were given to the aspirants; that statutory delegates are part of the delegates to vote at the

primary election; that the primary was conducted through secret ballot system, etc.

It should be noted that the Appellant did not file any further and better affidavit to challenge the facts deposed to by the Respondents, it is trite that where the opposing party does not challenge depositions in an affidavit, such evidence or depositions are deemed to stand and can be admitted as the true facts. See EZECHUKWU VS. ONWUKA (2006) 2 NWLR (PT. 963) 151 (CA); LONG-JOHN VS. BLAKK (1998) 6 NWLR (PT. 555) 524 at 532 (SC); FMCT VS. EZE (2006) 2 NWLR (PT. 964) 221 (CA); F.G.N VS. AIC LTD (2006) 4 NWLR (PT. 970) 337 (CA).
Since the facts in this case are contentious they cannot be resolved without further facts by way of further affidavit by the Appellant. In the circumstances of this case, I am of the firm view that the Appellant has not discharged the burden of establishing his case on the preponderance of evidence and balance of probability, considering all the averments in the various affidavits together with the exhibits attached thereto.
His claim must fail and they so fail. I so hold.

The claims of the Appellant at the lower Court are

hereby dismissed. I make no order as to cost. Parties shall bear their costs.

The notice of intention to contend that the judgment of the lower Court be affirmed on grounds other than the one relied upon by the trial Court is hereby dismissed as it has no usefulness in view of the decision reached above.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the privilege of reading before now the leading judgment of this Court in this appeal just delivered by my learned brother, Andenyangtso, J.C.A., and I must say that I wholly agree with his reasoning and conclusions arrived therein as they pertained to all the issues raised by the parties. I would only add that this is not a typical case to be commenced by way of Originating Summons as many facts averred by the Appellant and issues raised by him seemed highly contentious thereby making it impossible for them to be proved by affidavit evidence only in a typically time-bound matter of this nature. Originating Summons is used where there is no serious dispute as to facts but that is not the scenario in the instant appeal. I too find the appeal unmeritorious and hereby dismiss the same. I abide by the

consequential orders made in the leading judgment.

AMINA AUDI WAMBAI, J.C.A.: I read in draft the lead judgment delivered by my learned brother, I. A. Andenyangtso, JCA. The manner in which the issues were resolved in the lead judgment accords with my views.

I have nothing further to add except to state my concurrence with the lead judgment. Consequently, I adopt the reasoning and conclusion as mine and accordingly, I join my learned brother in dismissing the appeal on the terms set out in the lead judgment. I abide the consequential Orders therein.

Appearances:

I. ADEROGBA, ESQ. For Appellant(s)

THOMAS OJO, ESQ. – for the 1st Respondent
OLUMIDE OLUJINMI, ESQ., with him, ABDULWAHAB ABAYOMI, ESQ. and EMMANUEL OLAFUSI, ESQ. – for the 2nd Respondent
ESTHER T. AGBAJE, ESQ. for the 3rd Respondent For Respondent(s)

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