ALL PROGRESSIVES CONGRESS & ANOR v. SHAMAKI DANLADI FANYAN & ANOR
(2019)LCN/13068(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2019
CA/YL/39/2019
RATIO
PRE-ELECTION MATTERS: DEFINITION AND NATURE
A pre-election matter is defined in Section 285 (14) of the 1999 Constitution F.R.N. (as amended) thus:-
(9) Notwithstanding anything to the contrary in this Constitution every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.?
For the purpose of limitation of action, time begins to run from the moment the cause of action arose or originated. A cause of action originates from the date on which the incident which gave rise to the cause of action occurred. See Fadare V. Attorney-General, Oyo State (1982) 4 SC 1.PER ABDULLAHI MAHMUD BAYERO, J.C.A.
CAUSE OF ACTION: DEFINITION
A cause of action is defined to be a state of facts that entitles a party to maintain an action. See Black?s Law Dictionary 10th Edition Edited by Bryn and Garner.PER ABDULLAHI MAHMUD BAYERO, J.C.A.
STATUTE BAR: WHEN AN ACTION IS STATUTE BARRED THE CAUSE OF ACTION IS LOST
Where an action is statute barred, a party/plaintiff who might have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation law for instituting such an action had lapsed. SeeEMIATOR V. NIGERIAN ARMY(1999) 12 NWLR (Part 631)362. PER ABDULLAHI MAHMUD BAYERO, J.C.A.
WHEN THE ORIGINATING SUMMONS IS COMMENCED OUT OF TIME ALLOWED BY THE CONSTITUTION, THE COURT HAS NO JURISDICTION TO ENTERTAIN IT
As the originating summons was commenced outside the time allowed by the Constitution, the lower Court had no jurisdiction to entertain it. See the unreported decision of the Supreme Court in TOYIN V. PEOPLES DEMOCRATIC PARTY & 3Ors SC 308/2018 delivered on 18th January, 2019.PER ABDULLAHI MAHMUD BAYERO, 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
1. ALL PROGRESSIVES CONGRESS
2. SULEIMAN DAN ASABE Appellant(s)
AND
1. SHAMAKI DANLADI FANYAN
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal germinated from the Judgment of the Federal High Court sitting in Jalingo delivered by S. D. Pam J on 18th February, 2019 in Suit No. FHC/JAL/CS/21/2018. The Appellants together with the 2nd Respondent were sued by the 1st Respondent at the Federal High Court, Jalingo Division over the 1st Appellant?s primary election for the Donga State Constituency held on the 6th October, 2018. The 1st Respondent filed the Suit at Federal High Court, Jalingo on the 2nd November, 2018. In the originating summons dated and filed on 2nd November, 2018 taken out by the 1st Respondent against the 1st and 2nd Appellants, the 1st Respondent sought for the determination of the following issues:-
1. WHETHER by the combined provisions of S. 87(1), (2) and (3) of the Electoral Act, 2010 (as amended), Article 20 of the 1st Defendant?s Constitution and Paragraph 14 (g) of the Defendant?s Guidelines for the Nomination of Candidates for the 2019 General Elections-Direct Primaries, it is mandatory for the 1st Defendant to declare and present its Donga House of Assembly
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Candidate the aspirant who had expressed interest, screened for same and actually participated and poll majority of lawful votes as winner of the primary election.
2. Whether by the combined provisions of S. 87(1), (2) and (3) of the Electoral Act, 2010 (as amended), Article 20 of the 1st Defendant?s Constitution and Paragraph 14 (g), Paragraph 16, Paragraph 18 and Paragraph 19 of the 1st Defendant?s Guidelines for the Nomination of Candidates for the 2019 General Elections Direct Primaries, the 3rd Defendant who did not poll majority of lawful votes at the direct primary election held on 6th October 2018 can be returned winner by the 7 man APC National and State House of Assembly Election Committee chaired by Chief Sen. Emmanuel Dangana Ocheja, Esq in total disregard to outcome of the direct primary.
3. WHETHER the 1st defendant can substitute the name of the Plaintiff with that of the 2nd defendant as it Donga Taraba State House of Assembly candidate for no reason and in total disregard to the outcome of the direct primary election held on the 6th October, 2018.
4. Whether by the provisions of the Electoral Act 2010, the 3rd Defendant can
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accept, recognize and maintain on its records, the name of any person other than the name of the Plaintiff who participated in the party?s primary election, won and was duly nominated by the 1st defendant for the purpose of contesting the March, 2019 House of Assembly Election for Donga Local Government Area Constituency.
UPON SUCH DETERMINATION, the 1st Respondent prays the Court for the following reliefs:
1. A Declaration that the 1st Defendant cannot validly effect substitution of the Plaintiff with the 2nd Defendant as candidate for the Donga House of Assembly candidate, Taraba State without regard to the result and outcome of the direct primary election conducted on 6/10/2018.
2. A DETERMINATION and declaration that the Plaintiff who polled majority of lawful votes at the direct primary election of the 1st Defendant held on 6th October, 2018 is the rightful and lawful candidate of the 1st Defendant in the General elections slated for 2nd day of March 2019 or such subsequent date as may be rescheduled and the 3rd defendant regard him as such.
?3. An order of injunction restraining the 1st Defendant either by itself, officers
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agents, privies, staff or through any person(s) however from allowing the 2nd Defendant to participate in the State House of Assembly Election slated for 2/3/2019 or such subsequent date as may be rescheduled and restraining the 1st Defendant from forwarding the name of the 2nd Defendant to the 3rd defendant or taking any step to nominate the 2nd Defendant in total disregard to the result of the Primary elections.
4. An Order of injunction restraining the 3rd Defendant from recognizing, accepting and or dealing with the 2nd Defendant as the candidate of the 1st Defendant for Donga Taraba State House of Assembly Election slated for 2/3/2019.
5. An Order declaring the Plaintiff as the winner of the 1st Defendant’s primary election conducted on 6/10/2018 and also as the authentic candidate of the 1st Defendant for Donga Taraba State House of Assembly election having scored the highest number of votes at the said election.
Primary election to select candidates for Donga Taraba State House of Assembly elections was conducted by the 2nd Respondent on 6th October, 2018. The 2nd Appellant was among those who contested the primary election for
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Donga Local Government Area Constituency. According to the 1st Respondent he won the majority of lawful votes cast at the primary election. However, the 2 Appellant who did not poll majority of lawful votes at the direct primary election held on 6th October, 2018 was returned winner by the 7 man APC National and State House of Assembly Election Committee.
In view of the above, the 1st Respondent commenced an action at the Court below to challenge the wrongful submission of the Appellant?s name to the 2nd Respondent.
The Appellant?s defences to the action were that the 1st Respondent?s originating summons was filed out of time, was not signed and dated when it was filed. This is because in the 2nd Appellant?s calculation, the time limited for the 1st Respondent to file his action started running from 6th October, 2018 when the primary election was held. However, the 1st Respondent filed his suit on 2nd November, 2018.
After considering the affidavit evidence of the parties and written addresses of learned counsel for the parties, the Court below entered judgment in favour of the 1st Respondent. The 1st Appellant has
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approached this Court challenging the decision of the lower Court by a Notice of Appeal filed on the 27th February, 2019 containing five grounds of Appeal. The Appellant also filed his brief of argument on 14th March, 2019. From the five grounds of Appeal, the Appellant in his Brief formulated two issues for determination:-
1) Whether the learned trial Federal High Court Judge had jurisdiction to entertain the case in suit No. FHC/JAL/CS/21/2018 as the matter was filed after the Constitutional stipulated time of 14 days and on an originating summons that was not signed or dated by the 1st Respondent or his counsel. (Grounds 1, 2 and 3 of the Notice of Appeal)
2) Whether the learned trial Federal High Court Judge denied the appellants the right to fair hearing by failing to evaluate the evidence and exhibits of parties and thereby occasioning a miscarriage of justice. (Grounds 4 and 5 of the Notice of Appeal).
On issue one, the appellants? argument is that the 1st respondent never signed and dated the originating summons in FHC/JAL/CS/21/2018 as at when it was filed. That on page 1 of the Records, one Ravinap Timzing Venyir affixed his seal
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on the originating summons and allegedly signed same with a hand written ?T.V. Ravinap?. That this was done after the appellants had obtained the certified true copy of the same document from the same Court. According to counsel, the originating summons was not signed and dated on page 319 of the records.
That the signature is that of one P.D. Pius Esq., which is supposed to be that of T.V Ravinap Esq., who affixed his seal. He said the signature on page 1 of the records was made by T.V Ravinap Esq. however, on pages 95, 97,103, and 518 and 521 of the records the same signature was used for P.D. Pius Esq. J.S Ocheibi, and Hudu Musa Esq. and P.D Pius Esq., respectively. That on page 527 the original owner of the signature deposed to an affidavit with a picture who turned out to be Pius Danba Pius Esq.
?
Counsel submitted that assuming without conceding that the originating summons was signed, the question is who signed the originating process among the 3 lawyers? Why are they having the same signature? The correct answer is that the originating summons was not signed initially by the legal practitioner P.D Pius Esq. that is why another lawyer
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was brought in to sign the process with a different name and seal.
According to counsel, on page 515 of the Records, the 1st respondent argued boldly that originating summons as an originating process is different from Notice of appeal which must be signed by counsel or pleadings which must be signed by counsel. That this lends credence to the fact that the originating summons was not signed when it was filed in Court.
That the issue of a defective originating process is certainly a substantive jurisdictional one and not a procedural jurisdiction one, and a fortiori, where the originating process is defective, it goes to the root of the proceedings and the jurisdiction of the trial Court to have entertained the suit in the first place as in this case.
He referred to SLB CONSORTIUM LTD. V. NNPC (2011) 4 SCNJ 211; (2011) 9 NWLR (Pt.1242) 317; (2011) 4 S.C (Pt. 1) 86 and submitted that the originating summons in the suit on appeal before the supreme Court was signed but, as in this case, there was no name of counsel against it. The apex Court held that there must be strict compliance with the law as spelt out in OKAFOR v NWEKE (2007) 19 WRN 1;
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(2007) 10 NWLR (Pt.1043) 521; (2007) 3 S.C (Pt. II) 55; (2007) All FWLR (Pt. 368) 1016; (2007) 3 SCNJ 185, the ?locus classicus? on this issue.
That in this case, no legal practitioner signed or dated the originating summons at all and that this is a fundamental error and same is sufficient to render the entire suit incompetent. This means that the originating process is not only defective, but is incurably bad. That this being the case, this Court lacks jurisdiction to entertain the suit. Learned counsel place reliance on the locus classicus on this MADUKOLU v. NKEMDILIM (2001) 46 WRN 1; (19620) 2 NSCC 374; (1962) S.C 172; (1962) 2 SCNLR 341; (1997) 7 SCNJ 600; (1962) 1 All NLR 587.
It was the submission of learned counsel that the originating summons was filed 27 days after the event occurred. That the Donga State/Constituency primary election was held on 6th October, 2018. However, the 1st respondent filed his suit in FHC/JAL/CS/21/2018 on the 2nd November, 2018. That this goes contrary to Section 285 of the Constitution of the Federal Republic of Nigeria (CFRN) (fourth alteration No. 21) Act, 2017, that is, the amendment and
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alteration of Section 285 of CFRN 1999 as amended which reads in subsection 9 and 14 as follows:-
?Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
Sub section 14
?For the purpose of this section, ?pre-election matter? means any suit by-
a. An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
b. An aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with the Independent National
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Electoral Commission in respect of the selection or nomination of the candidates and participation in an election; and
c. A political party challenging the actions, decision or activities of the Independent National Electoral Commission or complaint that the provision of the Electoral Act or any other applicable law has not been complied with the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election registration of votes and other activities of the commission in respect of preparation for an election.
That a combined reading of the above Sections of 285 (9) (14) CFRN (1999) as amended and a juxtaposition of the said sections with the contents of the originating summons of the 1st respondent at pages 1 and 2 of the Records shows that it is a pre-election matter squarely and must be filed ?not later than 14 days from the date of the occurrence of the events.”
?
In the case at hand, the event complained of occurred on the 6th day of October 2018 and the 1st respondent filed the action at the Federal High Court Jalingo Division on the 2nd
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day of November, 2018 a gap of 27 days interval.
That this action of late filing in the 2nd of November, 2019 by the 1st respondent affected the competence and jurisdiction of the Federal High Court, Jalingo Division to entertain the matter ?abinitio?. The suit was dead on arrival. Jurisdiction is a threshold issue and can be raised even by ?viva voce?.
On issue two ?whether the learned trial Federal High Court denied the appellants the right to fair hearing by failing to evaluate the evidence and exhibits of parties and thereby occasioning a miscarriage of justice.”
Learned counsel submitted that the lower Court erred in law when it failed to evaluate the evidence of the 1st respondent as presented by the 1st respondent and only proceeded to evaluate evidence and the exhibit presented by the appellants concluded thus on page 647 of the Records. ?I have also gone through Exhibits SDB6 and SD7 and find out that 5 persons contested the primary election but on Exhibits SDB6 and SDB7 only 4 persons contested the primary election ?Secondly, Exhibits SDB6 and SDB7 are original copies and original
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copies of documents are not certified. It is only secondary documents that are certified.”
That what the 1st respondent filed in Court are according to him ?photocopies? as shown at page 6 of the record It follows therefore that while the learned trial Court found that Exhibits SDB6 and SDB7 are originals he rejected them and agreed with all the ?photocopies? of the result sheets as filed by the 1st respondent as against the original filed in court by the appellants. It is our submission that Exhibits F and J of the 1st respondent?s originating summons are ?photocopies? which no Court can rely on.
That the learned trial judge of the lower Court held thus:
?The 1st and 2nd Defendants also filed a further counter affidavit. This practice is new and unknown in law. Where the 1st and 2nd Defendants want to join issues with the Plaintiff on new issues raised in his further affidavit, they need the leave of Court in order to join issues on those new facts that were raised by the Plaintiff. Where the law provides for the doing of a thing and it is not done in accordance with law, it
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cannot stand. All in all the case of the 1st and 2nd Defendants lacks merit. This Court therefore holds in favour of the Plaintiff and against the 1st and 2nd Defendants.”
According to counsel, the appellants have the unimpeachable right to respond to every new issue raised by the 1st respondent in his further affidavit on pages 425 and 427 of the Records. It is because the further affidavit raised new issues that the appellants as 1st and 2nd defendants at the trial Court responded in a further counter affidavit on pages 535 to 537 of the Records.
According to counsel, relying on Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999) as amended and Section 1(3) of the CFRN (1999) as amended, the appellants have the right to respond to the new issues in the further affidavit and having foreclosed the appellants right to respond with the pronouncement in 432 above, the appellants were denied fair hearing and this occasioned a miscarriage of justice.
Counsel urged the Court to allow the Appeal, set aside the Judgment of the lower Court and grant the reliefs sought by the Appellants. The Respondents did not file Brief of
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argument. The Appeal will be determined on the Appellant?s Brief alone.
DETERMINATION OF THE APPEAL
A pre-election matter is defined in Section 285 (14) of the 1999 Constitution F.R.N. (as amended) thus:-
(9) Notwithstanding anything to the contrary in this Constitution every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.?
For the purpose of limitation of action, time begins to run from the moment the cause of action arose or originated. A cause of action originates from the date on which the incident which gave rise to the cause of action occurred. See Fadare V. Attorney-General, Oyo State (1982) 4 SC 1. In the instant Appeal learned counsel for the Appellant contends that the cause of action arose from 6th October, 2018 when the primary election was held. A cause of action is defined to be a state of facts that entitles a party to maintain an action. See Black?s Law Dictionary 10th Edition Edited by Bryn and Garner.
?A careful look at the affidavit in support of the originating summons reveals clearly that the
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set of facts that entitled the 1st Respondent to this action are contained in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 which deal with primary election that held on 6th October, 2018. On the face of the originating summons particularly the affidavit in support, it is not difficult to find that the incident which gave rise to the cause of action was the primary election which was held on 6th October, 2018. That was the date on which the cause of action originated as shown in the case of FADARE V. A. G. OYO STATE (Supra). From the 6th October, 2018 when the primary election was held to 2nd Day of November, 2018 when the 1st Respondent filed the action at the Federal High Court Jalingo Division is more that 14 days allowed by Section 285 (9) of the Constitution.
Where an action is statute barred, a party/plaintiff who might have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation law for instituting such an action had lapsed. SeeEMIATOR V. NIGERIAN ARMY(1999) 12 NWLR (Part 631)362. As the originating summons was commenced outside the time allowed by the Constitution, the
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lower Court had no jurisdiction to entertain it. See the unreported decision of the Supreme Court in TOYIN V. PEOPLES DEMOCRATIC PARTY & 3Ors SC 308/2018 delivered on 18th January, 2019. Issue one is therefore resolved in favour of the Appellant and against the Respondents. The Appeal is allowed on this ground alone.
Consequently, the proceedings and the Judgment of the lower Court in suit number FHC/JAL/CS/21/2018 are hereby struck out. The action before the Court below having been found to be incompetent and therefore struck out, there is no basis for considering the remaining issues in the Appeal.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the draft of the judgment of my learned brother ABDULLAHI MAHMUD BEYERO, JCA. I agree with the decision that the action before the lower Court was filed out of time thus, making it incompetent. I also strike out the proceedings and the judgment of the trial Court.
JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother Bayero JCA and I am in agreement with him that the action was
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commenced in the Court below outside the time allowed by Section 285(9) of the 1999 Constitution FRN (as amended). For this reason, I too strike out the proceedings and judgment of the Court below in Suit No. FHC/JAL/2018.
?I abide by all other orders contained in the lead judgment.
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Appearances:
Chukwu C. IcheluFor Appellant(s)
For Respondent(s)
Appearances
Chukwu C. IcheluFor Appellant
AND
For Respondent
