GARBA G. HAMMAN JULDE v. ABDULSALAM GAMBO MUBARAK & ORS
(2019)LCN/13046(CA)
In The Court of Appeal of Nigeria
On Monday, the 8th day of April, 2019
CA/YL/26/19
RATIO
AN APPEAL BASED ON A SUIT WHICH HAS BEEN STRUCK OUT AT THE LOWER COURT IS ALSO LIABLE TO BE STRUCK OUT AND HAS BECOME MERE ACADEMIC IN NATURE
This appeal emanated from Suit No. FHC/JAL/CS/17/2018 which has been held to be statute barred as at the time it was instituted at the trial Court. The proceedings and the judgment of the trial Court were struck out earlier today in the sister appeal No. CA/YL/23/2019 which arose from same suit as above. Going ahead to determine this appeal would be a fruitless exercise as it has no leg to stand on, the suit from which the appeal emanated has been held to be statute barred and the proceedings struck out. The proceedings include the proceedings in the present appeal. The Courts do not adjudicate over theoretical or academic issues. In consequence the appeal is spent and no longer alive, same is hereby struck out.PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
GARBA G. HAMMAN JULDE Appellant(s)
AND
1. ABDULSALAM GAMBO MUBARAK
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory Ruling of the Federal High Court delivered on 4th February, 2019 presided over by S. D. Pam, J., in Suit No. FHC/JAL/CS/17/2018. The Appellant was dissatisfied with the Ruling of the lower Court dismissing the application.
It is noteworthy that the Ruling appealed against emanated from the same suit that gave rise to the sister appeal, in Appeal No.CA/YL/23/19.
The 1st Respondent as Plaintiff commenced the suit by way of Originating Summons filed on the 30th day of October seeking the determination of the following questions:
(a) ?Whether the Plaintiff who was the aspirant of the 2nd Defendant that scored the highest number of votes cast at the Primary Election conducted by the 2nd Defendant on the 5th day of October, 2018, to elect a candidate to be sponsored by the 2nd Defendant for Bali/Gassol Federal Constituency into the House of Representatives of the National Assembly of the Federal Republic of Nigeria in the election to be held by the 3rd Defendant in February, 2019, is entitled to have his name submitted to
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the 3rd Defendant as its candidate having regard to the provisions of Sections 31(1), 35 and 87(1), (2), (3) and (4)(c) of the Electoral Act, 2010 (as amended)?
(b) Whether the purported submission of the 1st Defendant by the 2nd Defendant to the 3rd Defendant as its candidate for the Bali/Gassol Federal Constituency Election into the House of Representatives of the National Assembly of the Federal Republic of Nigeria slated by the 3rd Defendant for February, 2019, is a violation of the Provision of Section 87(4)(c) of the Electoral Act, 2010 (as amended)?
(c) Whether the 2nd Defendant can validly ignore, disregard and/or refuse to be bound by the result of primary election conducted by it on the 5th October, 2018 wherein the Plaintiff scored the highest number of votes cast, when the Plaintiff has not withdrawn his candidature and/or annul the result of the primary election as aforesaid contrary to the provisions of Section 35 of the Electoral Act, 2010 (as amended) and Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
?
The 1st Respondent sought the following reliefs upon the determination of the above questions:
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a) ?A DECLARATION of this Honourable Court that the submission of the name of the 1st Defendant by the 2nd Defendant to the 3rd Defendant as the candidate of the 2nd Defendant to contest the election into the House of Representatives of the National Assembly of the Federal Republic of Nigeria for Bali/Gassol Federal Constituency is a violation of the Provisions of Sections 35 and 87(1), (2), (3) & (4)(c) of the Electoral Act, 2010 (as amended).
b) A DECLARATION of this Honourable Court that the 2nd Defendant cannot ignore and/or refuse to recognize the result of the primary election conducted by it on the 5th day of October, 2018 wherein the Plaintiff won the majority of the lawful votes cast.
c) A DECLARATION of this Honourable Court that having won the primary election conducted by the 2nd Defendant on the 5th day of October, 2018 by scoring the majority of the lawful votes cast, the Plaintiff is entitled to have his name submitted to the 3rd Defendant by the 2nd Defendant as its candidate for Bali/Gassol Federal Constituency in the National Assembly election of the Federal Republic of Nigeria slated for February, 2019, by the 3rd Defendant.
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d) AN ORDER of this Honourable Court restraining the 1st Defendant from parading himself as the candidate of the 2nd Defendant for the election into the House of Representatives of the Federal Republic of Nigeria for Bali/Gassol Federal Constituency in the election slated for February, 2019 by the 3rd Defendant.
e) AN ORDER of this Honourable Court directing the 2nd and 3rd Defendants to recognize the Plaintiff as the candidate of the 2nd Defendant for the Bali/Gassol Federal Constituency in the election into the House of Representatives of the National Assembly of the Federal Republic of Nigeria slated for February, 2019, by the 3rd Defendant.
f) AN ORDER of this Honourable Court that directing the 2nd and 3rd Defendants to recognize the Plaintiff as the candidate of the 2nd Defendant for Bali/Gassol Federal Constituency in the election into the House of Representatives of the National Assembly of the Federal Republic of Nigeria slated for February, 2019 by the 3rd Defendant.
g) AN ORDER of this Honourable Court restraining the 2nd and 3rd Defendants from recognizing, accepting or treating the 1st Defendant as the
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candidate of the 2nd Defendant for Bali/Gassol Federal Constituency in the election into the House of Representatives of the National Assembly of the Federal Republic of Nigeria slated for February, 2019 by the 3rd Defendant.”
The Appellant in his Motion on Notice filed on the 25th of January, 2019 sought the following orders:
a. ?AN ORDER of this Honourable Court for extension of time within which the 1st Defendant shall file his counter claim to the Plaintiff?s originating summons filed on 31st day of October, 2018.
b. AN ORDER deeming the counter claim as duly filed and served on the Respondents the default filing fees having been paid. And such further order(s) as this Honourable Court may deem fit to make in the circumstances.”
At the close of hearing the application, the lower Court dismissed same, thus this appeal.
Two (2) issues were distilled for the determination of the appeal thus:
1. ?Whether the learned trial judge erred in law when he held that the appellant is only entitled to file a counter affidavit to the originating summons but not to file a Counter Claim and that if the appellant want
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to raise fresh issue is for him to file a fresh suit and apply for consolidation.” (Ground 1 and 2 of the Notice of Appeal).
2. Whether the learned trial judge erred in law when he determined the Counter Claim together with the motion for extension of time and life of the Counter Claim as contained in the lower Court Ruling dated 4th February, 2019 (Ground 3 of the Notice of Appeal).”
In response, the 1st Respondent filed a Notice of Preliminary Objection on the following grounds:
1. ?The Notice of Appeal dated 8th February, 2019 and filed same date which can be found at pages 191 ? 194 of the Record of Appeal was not served on the 1st Respondent or his Counsel before the Appellant unilaterally compiled the Record of Appeal and transmitted it to this Honourable Court.
2. The Appeal is an academic exercise on ground that the Appellant did not appeal against the pronouncement of the Court on the absence of jurisdiction to grant extension of time claimed in Motion No. FHC/JAL/M/14/2019 by the Appellant.”
The following relief were sought in the preliminary objection:
1. ?An order of this Honourable Court striking out the Appeal.
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2. And such further order(s) as the Honourable Court may deem fit to make in the circumstance of this Appeal.”
The preliminary objection was supported by an eight paragraph affidavit and argued in the 1st Respondent?s Brief of Argument filed on 11/3/19, at pages 10-21.
In the alternative, a sole issue was formulated for the determination of the appeal thus:
?WHETHER regard being had to the entire circumstance of the application before the trial Court, the conclusion reached by trial Court was wrong (Distilled from Grounds 1, 2 and 3 of the Appellant?s Grounds of Appeal).
In response to the preliminary objection, the learned counsel to the Appellant submitted that the preliminary objection and the grounds upon which it was brought are academic. We were urged to determine the objection on the basis of the brief and the records.
The 2nd and 3rd Respondents did not file any brief of argument.
This appeal emanated from Suit No. FHC/JAL/CS/17/2018 which has been held to be statute barred as at the time it was instituted at the trial Court. The proceedings and the judgment of
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the trial Court were struck out earlier today in the sister appeal No. CA/YL/23/2019 which arose from same suit as above. Going ahead to determine this appeal would be a fruitless exercise as it has no leg to stand on, the suit from which the appeal emanated has been held to be statute barred and the proceedings struck out. The proceedings include the proceedings in the present appeal. The Courts do not adjudicate over theoretical or academic issues. In consequence the appeal is spent and no longer alive, same is hereby struck out.
Parties to bear their respective costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned Brother CHIDI NWAOMA UWA JCA.
This appeal emanated from Suit No. FHC/JAL/CS/17/2018. The proceedings and judgment in Suit No. FHC/JAL/CS/17/2018 having been struck out in Appeal No. CA/YL/23/2019, proceeding to determine this appeal will amount to academic exercise. In the circumstances, I too strike out the appeal.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I had the privilege of reading in advance the draft of the lead Judgment just delivered by
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my learned Brother Chidi N. Uwa JCA. For the reasons contained therein which I adopt as mine, I also strike out the appeal. I abide by the consequential order therein.
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Appearances:
Abdulhamid Mohammed, Esq. with him, S. I. Waziri, Esq.For Appellant(s)
F. K. Idepefo, Esq. with him, G. C. Oraekelam, Esq. and I. A. Simon, Esq. for the 1st Respondent.
2nd and 3rd Respondents served but absent
For Respondent(s)
Appearances
Abdulhamid Mohammed, Esq. with him, S. I. Waziri, Esq.For Appellant
AND
F. K. Idepefo, Esq. with him, G. C. Oraekelam, Esq. and I. A. Simon, Esq. for the 1st Respondent.
2nd and 3rd Respondents served but absentFor Respondent
