SENATOR LAWAL Y. GUMAU v. BARR. IBRAHIM ZAILANI & ORS (2019)

SENATOR LAWAL Y. GUMAU v. BARR. IBRAHIM ZAILANI & ORS

(2019)LCN/13095(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/A/150/2019

JUSTICES

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

SENATOR LAWAL Y. GUMAU Appellant(s)

AND

1. BARR. IBRAHIM ZAILANI
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

RATIO

WHETHER OR NOT THE ISSUE OF SERVICE OF NOTICE OF HEARING ON PARTIES TO A CASE IS FUNDAMENTAL TO THE PRINCIPLE OF FAIR HEARING

The issue of service of notice of hearing on parties to a case is very fundamental to the principle of fair hearing; in adjudication of cases. Any proceedings conducted without affording the parties of the opportunity of being heard is fatal. No matter how well conducted, such proceedings will be nullified on appeal. See Sken Consult (Nig.) Limited & Anor vs Godwin Sekondy Ukey (1981) 1 SC, Deduwa vs. Okorodudu (1976) 970 SC 288, Imana vs. Robinson (1979) 324 SC 1 at pages 8 – 10. In Ogbueshu Joseph 0.G Achuzia vs. Wilson Fidelis Ogbomah (2016) LPELR ? 40050 (SC), the Supreme Court per Gabidima JSC at page 4 held succinctly thus:
“It is trite that failure to serve a party in a case with a hearing notice indicating clearly when and where the Court is to sit is a fundamental irregularity which easily vitiates the proceedings, and makes it a nullity, however, well conducted and decided. The defect is extrinsic to the adjudication.” PER AKOMOLAFE-WILSON, J.C.A.

THE ESSENCE OF SERVING HEARING NOTICE

The essence of serving hearing notice, either personally or by substituted service is to ensure that notice of hearing is served on parties in a matter. The underlying factor is for the parties to be aware of the date of hearing of matters of the case in which they are involved. In that circumstance the party serving the Court ought to ensure that the adverse party is adequately served before proceedings are conducted in the matter. Where a party complains about non-service of processes, the onus is on the party asserting service to establish that there was service on the adverse party – Maduka vs. Ubah (2015) 11 NWLR (Pt. 1470)201 at page 221. It is also the duty of the Court to be duly satisfied that there was actual service on the party to be served especially when such adverse party fails to appear in Court.
In UBA Plc. vs. Effiong (supra) this honourable Court held:-
“Now as in the instant case where it has been arrived that a Court process such as a hearing notice or a motion for judgment has been served on the adverse party, it is required and indeed necessary for the trial Court to be duly satisfied by having before it evidence of that service as require by law. There must be satisfactory proof of such service. This is moreso, in such an instance where the adverse party who has been alleged to have been duly served, failed to appear in Court in response to the process allegedly served on him. Thus as a result of the untoward developments which might ensued and somewhat affect him as a result of consequences of such failure to appear, the Court must be absolutely, duly and fully satisfied that the alleged service was actually effected as required by law. The proof of service must be satisfactory and verifiable. PER AKOMOLAFE-WILSON, J.C.A.

WHETHER OR NOT A CLAIMANT SEEKING DECLARATORY RELIEF MUST ESTABLISH HIS CASE TO THE SATISFACTION OF THE COURT

The law is settled that a claimant for a declaratory relief must establish his case to the satisfaction of the Court and not depend on the weakness of the defence. It is therefore immaterial if the defendant, like the Appellant in the instant case did not file any defence to the action. Declaratory judgment cannot even be granted by concession.
In other words, failure of the defendants (including the Appellant) to defend that action does not avail the 1st Respondent. The burden of proof by established admissible evidence of the Claim is still grossly placed on the 1st Respondent. See Bello vs. Eweka (1981) 1 SC 101 at 120 – 122; Mertger & Ors. vs. Department of Health & Social Security (1977) 3 All FRN 44 quoted with approval in Abdullahi vs. Military Administration of Kaduna State (2004) 5 NWLR (Pt 866) 232 at 253. The Court ought not to enter judgment in any circumstance in favour of a party until the party has clearly proved this case by sufficient credible admissible evidence, to the satisfaction of the Court. See the cited cases of Sylva vs. INEC (2018) 18 NWLR (Pt. 1651) PG. 310 @ 359 PARAS. G-H; ONOVO VS. MBA (2014) 14 NWLR (PT 1427) PG 391 @ 437 – 438 PARAS H -B; AKANDE VS ADISA (2012) 15 NWLR (PT 1324) PG 538 @ 571 @ PARAS A-C. Yusuf vs. Mashi (2017) All FWLR (Pt 912) 664 at 707.
In Nyesom vs. Peterside (2016)7 NWLR (Pt. 1512) 452 at page 535, paragraph F-H, the Supreme Court held thus:
“It will be recalled that the 1st and 2nd Respondents sought declaratory reliefs before the Tribunal. The law is that where a party seeks declaratory reliefs, the burden is on him to succeed on the strength of his own case not on the weakness of the defence (if any). Such reliefs will not be granted even on admission.” PER AKOMOLAFE-WILSON, J.C.A.

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Abuja Division delivered by Hon. Justice F. M. Nyako on the 12th February, 2019. The said judgment, the subject of this appeal resulted from the pre-election dispute of the All Progressive Congress(APC) for Bauchi South Senatorial District for Bauchi in the 2019 General Elections.

The facts of the case show that the 1st Respondent contested the Bauchi South Senatorial Primary Election held on 3rd of October, 2018. According to him, he was comfortably leading in the said election with about 157,000 votes, leaving only one Local Government pending when he received the news that Appellant had been declared the winner of the election. Displeased by this announcement, on 4th October 2018, he petitioned the Appeal Committee of the 2nd Respondent, wherein he prayed to be declared the winner of the said Primary Election. On 17th October, 2018, the Committee upheld his appeal which declared him as the winner of the Primary Election. It was after the refusal by the 2nd Respondent to forward his name to the 3rd

Respondent that the action in the lower Court was filed where by Originating Summons, the 1st Respondent, as Plaintiff, sought for the determination of the following questions:-
1. “Whether having regard to the provisions of Section 6(6)b and 40 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended), Section 87 (3) and (4) of the Electoral Act (As Amended) and Article 21(c)(iii) of the Constitution of the All Progressive Congress (As Amended), members of the 2nd Defendant including the Plaintiff, the 1st Defendant and all organs of the 2nd Defendant have a duty to obey, enforce and implement the decision of the Appeal Committee of the 2nd Defendant.
2. Whether having regard to Article 21 (c)(iii) of the Constitution of the All Progressive Congress, any individual, body or organ of the party can disregard the decision of the Appeal Committee without recourse to the Constitution of the 2nd Defendant.
3. Whether having regard to Article 21 (c)(iii) of the Constitution of the All Progressive Congress (As Amended), any decision which has been appealed against and which appeal has been upheld by the committee can be implemented by

any member or organs of the 2nd Defendant and can form the basis upon which any of the Defendants will be permitted to act.
UPON DETERMINATION OF THE ABOVE THE PLAINTIFF SEEKS THE FOLLOWING RELIEFS:
1. A DECLARATION that the decision of the 2nd Defendant’s Appeal committee sitting in Abuja and made on 17th October, 2018 upon Plaintiff’s Appeal against the illegal conduct of the Bauchi South Senatorial District Primary Elections by which the Appeal committee upheld the Plaintiff’s prayer for the nullification of the selection of the 1st Defendant as the candidate of the 2nd Defendant for the Bauchi South Senatorial District General Elections but returned the Plaintiff as the winner of the Election is binding on all persons, authorities, organs and bodies of the 2nd Defendant Party.
2. A DECLARATION that by virtue of Article 21(c)(iii), the decision or action of the APC National Assembly Elections Primaries Panel which was the subject of the Plaintiff’s Appeal Committee ceased to be binding as at 17th October, 2018, being the date on which the appeal was upheld by the Appeal Committee.
3. AN ORDER of Perpetual Injunction

restraining the Defendants/Respondents by themselves, their agents, privies or any constitutional or party body, committee, panel, organ or otherwise howsoever from:
(a) Relying on, announcing, ratifying, validating, utilizing or otherwise however giving legal recognition or effect to, and taking any or any further action on, any purported process or results of the All Progressive Congress (APC) Party Primaries for Bauchi South Senatorial District candidacy in respect of the 2019 General Elections.
(i) Selecting, collating, listing or otherwise constituting by any means whatsoever.
(ii) Sending, presenting or otherwise transmitting any; list or selection as foresaid;
(iii) Receiving, utilizing, recognizing or otherwise acting on in any way whatsoever any list, collation, selection of candidate to Bauchi South Senatorial District for APC for any purposes whatsoever issued by the 1st to 3rd Defendants.
4. AN ORDER directing the 2nd Defendant to forward only the name of the Plaintiff to the 3rd Defendant as its Senatorial Candidate for the Bauchi South Senatorial District and directing the 3rd Defendant to accept the name as the APC

Senatorial Candidate for the 2019 General Elections.

The judgment of the lower Court, given in favour of the 1st Respondent was in Default of Appearance of the Appellant, 2nd and 3rd Respondents who were the 1st-3rd Defendants respectively at the lower Court.

The Appellant, piqued by the judgment, filed two Notices of Appeal on 13th and 25th February, 2019, but relied on the latter Notice of Appeal contained at pages 169-177 of the record of appeal.

In the Appellant’s Brief of Argument, settled by Hassan M. Liman SAN, three (3) issues were formulated for determination and which issues were adopted by the 1st and 2nd Respondents in their Briefs of Argument filed by Mustapha B. Tafarki Esq. and D. D Dodo, SAN, respectively
They are:-
(1) Whether the trial Federal High Court which sat in Abuja Federal Capital Territory had the requisite jurisdiction to entertain and consequently delivered judgment in suit No. FHC/ABJ/1257/2018 BETWEEN BARRISTER IBRAHIM ZAILANI vs. SEN. LAWAL Y. GUMAU & 2 ORS.
(2) Whether the Default judgment of the trial Federal High Court delivered on the 12th

February, 2019 in suit FHC/ABJ/CS/1257/2018 BETWEEN BARRISTER IBRAHIM ZAILANI vs. SEN. LAWAL Y. GUMAU & 2 ORS., was not a nullity.
(3) Whether 1st Respondent has established by available evidence his case before the trial High Court and whether the trial Court properly evaluated the evidence placed before it by the 1st Respondent to warrant the trial High Court enter judgment in favour of the 1st Respondent.

Let me quickly note that the 2nd Respondent, pursuant to Order 19 Rule 4 (2) of the Court of Appeal Rules, 2016, conceded to the issues argued in the Appellant’s brief of argument and stated that he had nothing to urge in this appeal.

The Appellant also filed a Reply to the 1st Respondent’s Brief of Argument.
ISSUE ONE questions the jurisdiction of the lower Court to have entertained the suit filed by the 1st Respondent.

The learned senior counsel for the Appellant noted that the suit arose from complaint predicated on the primary election that was conducted on 3rd October, 2018, but the 1st Respondent only filed the suit on 31st October, 2018 which is outside the 14 days period prescribed by Section 285 (9) of 1999

Constitution (Fourth Alteration Act), 2017. The suit, he submitted is statute barred; and ought to have been struck out as the Court lacked jurisdiction to entertain the suit – Fasakin Foods (Nig.) Limited vs. Shosanya (2006) 10 NWLR (Pt 987) 127 at 157, Sylva vs. INEC (2015) 16 NWLR (Pt. 1486) 576 at 630, Ibrahim vs. Lawal (2015) 17 NWLR (Pt. 1489) 490 at 523, CA/A/95/2019 – Alhaji M. Liman & 4 Ors. vs. APC & 1 Ors. delivered on 21st February, 2019. He argued that the cause of action arose on 3rd October, 2018, the day the Primary Election was held and not on 17th October, 2018, the date the Appeal Committee purportedly ruled in his favour. He attacked Exhibit 7 as an undated and unsigned document which does not indicate the date the Appeal Committee reached its decision.

In reply, the 1st Respondent submitted that in order to determine whether a cause of action is statute barred, the relevant documents to examine are the statement of claim, or the originating summons and supporting affidavit, whichever is applicable – INEC vs. Ogbadibo Local Government (2016) 3 NWLR (Pt. 1498) 167 at 197. He argued that from the issues submitted

for determination and paragraphs 13, 14 and 15 of the affidavit in support of the originating summons, the cause of action arose only after his victory at the Appeal Committee on 17th October, 2018, Exhibit 7, and this is predicated upon the refusal of the 2nd Respondent to forward his name to the 3rd Respondent, despite Exhibit 7. He submitted that the words used in Section 285 (9) of the 1999 Constitution (Fourth Alternation, No. 21) Act is clear and must be given its ordinary and simple interpretation – Coca cola (Nig.) Limited vs. Akinsanya (2017) NWLR (Pt. 1593) 74. With the interpretation, according to him, it is not only the election itself, being an event that can be subject of litigation in a pre-election matter rather any “event, decision or action” can be a subject of litigation; such as the refusal to comply with the decision of the 2nd Respondent’s Appeal Committee He emphasized that his action is not statute barred.
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In order to determine whether or not an action is statute barred, the documents to be considered are the writ of summons and the statement of claim or the originating summons and the supporting affidavit as the case

may be – Sun Insurance Nig. Plc. vs. Umez Engineering Constructions Coy Limited(2015) 62 (Pt. 1) NSCQR 481 at 505, INEC vs. Ogbadibo Local Government(Supra).

The questions and reliefs for determination have been reproduced at the commencement of this judgment. The contention of the 1st Respondent is that having regards to issues 1 and 2 for determination in the Originating Summons and paragraph 13, 14, 15 of the supporting affidavit, it is obvious that the cause of action was ignited by the refusal of the 2nd Respondent to comply with the report of its Appeal Committee, Exhibit 7 to forward his name to the 3rd Respondent.
Paragraphs 13 -15 state as follows:
13. “I know that consequent upon the decision of the Appeal Committee, whereby my appeal was upheld, the declaration of the 1st Defendant as the winner of the Primary Election becomes ineffective and no member or organ of the 2nd Defendant can act on it.
14. That I also know that unless the Honourable Court urgently intervenes in this matter, the name of the 1st Defendant will be forwarded to the 3rd Defendant as the Candidate of the 2nd Defendant in the General elections contrary

to the decision of the Appeal Committee who has given a decision thereby subverting the will of the people of the state.
15. That I am aware that the 3rd Defendant has issued its Election guideline which stipulates that the list of Senatorial candidates should be submitted not later that 2nd November, 2018. A copy of the INEC guideline is attached as Exhibit 8. (Page 9 of record of appeal)

I do not agree with this stand of the 1st Respondent. A perusal of the depositions of the Affidavit in support of the Originating Summons, particularly paragraphs 2,8, 9 and 10 show glaringly that the primary grouse or dispute that roused the 1st Respondent to approach the Court is the failure of the 2nd Respondent to forward his name to the 3rd Respondent as a candidate of the 2nd Respondent for the Bauchi South Senatorial District pursuant to his claim to have won the primaries held on 3rd October, 2018.
2. “That 1st Defendant is a member of the 2nd Defendant whose address is Senate Building, Room 1.27 National Assembly Complex three Arms Zone, FCT Abuja, he was an aspirant for the office of Senator representing Bauchi South Senatorial

District in the just concluded primary election of the All Progressives Congress (APC) which took place in Bauchi State on the 3rd October, 2018.
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8. That Bauchi South Senatorial District comprises of seven (7) Local government areas. The result of the election is as follows:
(a) Bauchi Local Government Area   53,000
(b) Kirfi Local Government Area –   21,000
(c) Dass Local Government Area       19,000
(d) Toro Local Government Area       39,000
(e) Tafawa Balewa Local Govt.       30,000
(f) Alkaleri Local Govt. Area       25,000
9. That by the end of the primary elections, I had a total of 157,000 votes and the only local government that had a problem during the election was Bogoro Local Government Area where election was postponed as a result of the violence which erupted there.
10. That it was great embarrassment and shock that I later received the report that the chairman of the Election Committee, one Professor Bakori had wrongfully declared

the 1st Defendant as the winner of the primary election.

The totality of the questions for determination and the reliefs sought, coupled with the depositions in the Affidavit, shows that it is the failure of the 3rd Respondent to declare the 1st Respondent as a winner of its primaries to the affected Senatorial District, conducted on 3rd October, 2018, that caused him to be disgruntled. That is what caused the dispute over the primaries. Invariably, if he had been declared as the winner after the election, on 3rd October, 2018 there would not have been any necessity to appeal to the Appeal Committee upon which the Report, Exhibit 7 was made. In other words, the genesis of his complaint concerns the alleged wrongful action taken by the 2nd Respondent immediately after the conduct of the election on 3rd October, 2018.

By the provisions of the Constitution and Electoral Act, Primaries are conducted so as to nominate candidates for an election. An appeal committee of a party does not have the power to nominate a candidate for an election, except through the conduct of Primaries. The 1st Respondent in his suit at the lower Court placed heavy reliance on

Article 21 (c) upon which Exhibit 7 was made. It provides:-
“Where a decision or action taken by an Organ of the party is appealed against, the decision or action shall remain in force and binding until the appeal or appeals had been determined. The decision or action shall cease to be binding if the appellate body up holds the appeal.”

It is that decision or action of the party, which refused to declare the 1st Respondent as the winner of the Primary Election held on 3rd October, 2018 that caused the grouse of the 1st Respondent to go to Court thereby being his principal cause of action upon which the alleged report of the Committee is dependent. The principal grouse must therefore subsume the ancillary or secondary cause.

It is appropriate at this juncture to define “cause of action. In the Black Law Dictionary, 7th Edition at page 214, the phrase is defined as;
“A group of operative facts giving rise to one or more bases for suing; that entitles one person to obtain a remedy in Court from another person.”
The Supreme Court in the case of Yare vs. NSWIC, vol. 54 (2013) @ 248, Per, GALADIMA, JSC., held that;

“The Supreme Court in the case of Savage vs. Uwechia (1972) All NLR 255 @ 211 espoused the law on the issue of the term”cause of action” as follows:
“A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of Circumstance giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts which give rise to sue and it consists of two elements the wrongful act of the defendant which gives to plaintiff his cause of action complaint and the consequent damage.”
The next question to be asked is when does a cause of action arise? Generally, a cause of action arises on the date when a breach or any steps would warrant a person who is adversely affected by the act of another to seek redress in Court. Put in another way, a cause of action accrues when the facts thereof are complete for the aggrieved party to be able to commence or initiate his action against another based on the said facts. See Bello vs. Attorney – General Oyo State (1986) 5 NWLR (Pt. 45) 828, Tukur vs. Yobe State (1989) 4 NWLR (Pt. 117) 517, Adeosun vs. Jibesin (2001) 11 NWLR (Pt.924) 290, Plateau Limited vs. Aware (2014) 6 NWLR

(Pt. 1404) 159 at 542 – 543, U.M.B. Limited vs. CBN (2017) All FWLR (Pt. 880) 823 at 844, INCE vs. Enesto (2018) 2 NWLR (Pt. 1602) 63.

Invariably, the Respondent in couching his claim centered it on this alleged Report by the Appeal Committee Exhibit 7, instead of the date of the conduct of the primary election. However, no matter how ingeniously couched the claim and reliefs sought by the 1st Respondent are, the root cause of his suit arose from the primaries conducted on the 3rd of October, 2018. It is therefore emphasized that what primarily gave rise for the 1st Respondent to sue was the failure of the 2nd Respondent to declare him a winner of the primary election held on October 3rd, 2018.

Section 87 (10) of the Electoral Act, 2010 is the law that empowers an aggrieved aspirant in the selection or nomination of a candidate, which is conducted by primaries to go to Court.
The section provides:-
“Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guideline of a political party has not been complied with in the

selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State, for redress.
(Underlying for emphasis)
While Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017 prescribes the period within which an action predicated on pre-election matters can approach the Court.
It provides-
“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 in the suit.”
In my view, by the combined effect of Section 87(10) of the Electoral Act and Section Act and Section 285 (9) of the 1999 Constitution the limitation period cannot be curtailed by the rules of a political party. In effect, the limitation period cannot be circumvented by Article 21(c) of the Constitution of 2nd Respondent.
For the purpose of the limitation law, a cause of action arises and begins to run from the date the breach or grievance occurs – Egbe vs. Adefarasin (1987) 1 NWLR (Pt. 47) page Woherem vs. Emeruwa (2004) 13 NWLR (Pt.890) 398.

By the provisions of Section 285 (9) of the 1999 Constitution as amended, the 1st Respondent ought therefore to have filed his action within 14 days from October 3rd, 2018. However, this action was filed on the 31st of October, more than 14 days after the date of accrual of cause of action arose. It is obvious that by the time the 1st Respondent filed his action in Court in October 31st, 2018, he was well outside the 14 days prescribed by Section 285 (9) of the 1999 Constitution (as amended). The suit is statute – barred. The law is settled that where an action is statute barred, a Court does not have the jurisdiction to entertain it, however meritorious the case may be. See Sylva vs. I.N.E.C. (2015) 16 NWLR (Pt. 480) 57 at 630. Ibrahim vs. Lawal (2015) 17 NWLR (Pt. 1489) 490 at 523, Buremoh vs. Akande (2017) 7 NWLR (Pt. 1563) 74 at 107, P.D.P vs. Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187.

Before I conclude on this issue, let me briefly comment on Exhibit 7, heavily relied upon by the 1st Respondent. A glance on Exhibit 7 shows that it is an undated and unsigned document rendering it a worthless document upon which no probative value can be foisted on it.

Worse still, as rightly noted by the learned senior counsel for the Appellant, there is nowhere in the entire report that indicated when the Appeal Committee sat and reached its decision.

The flaunted date of October 17th, 2018 is not reflected on the document. I reserve further analysis on Exhibit 7 for issue 2. In the circumstance therefore, the only reasonable option is to rely on October 3rd 2018, the day the primary election was held as the accrual date of the cause of action. The suit was statute barred. The trial Court was devoid of jurisdiction to entertain it. It is hereby struck out.
In the light of the foregoing issue, I resolved issue one in favour of the Appellant.

ISSUE TWO deals with the complaint of the Appellant on non service of the Originating Summons on him before judgment was given against him. He contended that even though an order of substituted service was granted to be served on the Clerk of National Assembly at the National Assembly Complex, Three Arms Zone, FCT Abuja, for onward transmission to the Appellant, there was no evidence that these processes were transmitted to him. The Appellant is emphatic that he was

never served with the originating process or any process and was never aware of the suit until after judgment was delivered and his attention Was drawn to a social media report on face-book while he was undertaking his campaign in his Senatorial District. The learned senior counsel submitted that the law is settled that the 1st Respondent being the Plaintiff, as well as the Court were expected to be fully satisfied that the Originating process actually reached the Appellant before any adverse decision was entered against the Appellant, citing UBA Plc vs. Mowah (2006) 18 NWLR (Pt. 1010) 18 NWLR (Pt. 1272) 84 at 103, UBA Plc. vs. Effiong (2011) 16 NWLR (Pt. 1272) 84 at 103; Learned Counsel noted that from records, on 5th February, 2019 the matter was adjourned to 11th February, 2019 for judgment, but the Court did not direct that hearing notices be served for the date of judgment on the Appellant, and neither was there any indication of such order of Court for service for 12th February, 2019 when the judgment was delivered. Failure to give notice to a party before judgment was entered against him, he submitted, is a breach of the fundamental right to fair hearing

and the judgment entered is a nullity – Nyesom vs. Peterside (2016) 7 NWLR (Pt. 1512) 452 at 551, COP vs. Iheabe (1998) 11 NWLR (Pt. 575) 666 at 679.

In reply, the learned counsel for the 1st Respondent, by way of a preliminary point, submitted that the Appellant can only raise issue of non service by way of Affidavit and not by a Notice of Appeal as done by the Appellant and that being an issue of fact, the Appellant needed the leave of this Court before such an issue can be raised, and also leave to adduce fresh evidence. On the issue of service of originating processes, the Respondent’s Counsel insisted that the Appellant was served with the originating processes and the relevant processes in the suit, by way of substituted services via Clerk of the National Assembly, emphasizing that affidavit of service of Court processes is the most potent and cogent evidence in proving service, citing the cases of Estate of Late Chief H.I.S Idisi vs. Ecodrill (2016 12 NWLR (Pt 1527) 355 at 375 – 376, Paragraphs H – A, Reg. Trustees, PCN vs. Etim (2017) 13 NWLR (Pt. 1581) 1 at p. 31A. Reference was made to page 160 of the record of appeal,

which according to counsel, showed that the trial Court ensured that the Appellant and all other parties in the suit were served before hearing and determining this action, and therefore not the duty of the Court to wait forever for a defaulting party.

He argued that the object of the law does not imply that every substituted served must be proved to have been served on the addressee, otherwise the object of an order of substitution will be defeated. On fair hearing, he submitted that the Appellant was afforded every opportunity of being heard and cannot complain as he failed to use the opportunities given to him, arguing that justice is a double edged sword and interest of all parties must be protected. He relied on Newswatch Communications Limited vs. Atta (2006) 12 NWLR (Pt. 993) 144 at 171, Reg. Trustees, PCN vs. Etim (2017) 13 NWLR 1 at p. 43.
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Let me commence by determining the preliminary issue raised by the 1st Respondent that the issue off non-service can only be raised by way of affidavit and therefore ought to be discountenanced. Learned counsel for 1st Respondent did not supply any authority for this contention. However, I do not agree

with this contention. An issue of service of processes on parties is very paramount to adjudication. It is an issue of law which borders on jurisdiction and is very paramount to the adjudication of any dispute; hence it can be raised at any stage of the proceedings, even on appeal for the first time. It can even be raised suo motu by the Court. See the case of Owners of my Gongola Hope vs. SC (Nig) Limited (2007) 15 NWLR (Pt.1056) 189 at P. 206 where Mustapha, JSC stated thus;
“Issue of jurisdiction may be raised at any stage of proceedings even at the Supreme Court and even by the Court sou motu, leave may not be necessary because without the judicial competence to adjudicate everything done is a nullity.”

In any case, I have perused the records of appeal and it shows that the Appellant swore to an affidavit in an application filed before the trial Court. Let me quickly state that the principle of law has long been established and does not require the quotation of authorities to the effect that a Court has power to look into the records of Court to determine an issue before it. At pages 120 – 127 is a motion on Notice filed by the Appellant on 13th

February, 2019 after he became aware of the default judgment granted against him. Paragraph 3, 4, 5,7, 8 and 9 of the affidavit in support of the application are quite relevant and I reproduce hereunder-
“3. That I know as a fact that I was never at any time howsoever aware of the existence of suit No. FHC/ABJ/CS/1257/2018 Between Barrister Ibrahim Zailaini vs Senator Lawal Y. Gumau & 2 Ors filed before the Federal High Court Abuja.
4. That I know as a fact that at no time howsoever was I ever served with any originating process or any process howsoever in or had my attention ever been drawn by anyone howsoever to the existence of suit No. FHC/ABJ/CS/1257J2018 Between Barrister Ibrahim Zailaini vs Senator Lawal Y. Gumau & 2 Ors, nor has anybody howsoever ever brought to my attention the existence of suit No. FHC/ABJ/CS/1257/2018 Between Barrister Ibrahim Zailaini vs Senator Lawal Y. Gumau & 2 Ors.
5. That it was in the afternoon of 12th February, 2019 while I was undertaking my campaign in my Senator District as the Senatorial Candidate of the 2nd Respondent All Progressive Congress (APC) for Bauchi South Senatorial

District for the 2019 general election fixed for the 16th February, 2019 my attention was drawn to a social media report on a Facebook post that I have been removed as the 2nd Respondent candidate for the Bauchi South Senatorial District and replaced by the 1st Respondent through a Judgment of the Federal High Court delivered on the said 12th February, 2019.
6. That I had to abandon whatever I was doing including my campaign to rush to Abuja to confirm about the genuineness or otherwise of the fact that judgment was entered against me.
7. That my lawyers whom I called through the phone informed me on the 12th February, 2019 at about 5pm while I was on my way to Abuja that they actually made inquiry before the Federal High Court and found out that Judgment was actually entered against me Coram Hon. Justice Binta F. M. Nyako on the said 12th February, 2019.
8. That I know as a fact that I am really aggrieved by the judgment delivered on the 12 day of February, 2019 suit No. FHC/ABJ/CS/1257/2018 Between Barrister Ibrahim Zailaini vs Senator Lawal Y. Gumau & 2 Ors and immediately instructed my Lawyers to file a Notice of Appeal against the said

judgment.
9. That I know as a fact that an appeal was immediately lodged to the Court of Appeal, Abuja Division on the 13th day of February, 2019 before the Registry of this Honourable Court. The said Notice of Appeal is hereby attached and Marked as Exhibit A.

In the circumstances of this case, the Appellant quickly and reasonably filed an appeal against the default judgment. The law is well settled that a party aggrieved into the decision of a Court can exercise his right of appeal by filing an appeal. It is a constitutional right well exercised by the Appellant. The preliminary point raised by the 1st Respondent is therefore of no moment.

In Ogbueshu Joseph 0.G Achuzia vs. Wilson Fidelis Ogbomah (2016) LPELR ? 40050 (SC), the Supreme Court per Gabidima JSC at page 4 held succinctly thus:
“It is trite that failure to serve a party in a case with a hearing notice indicating clearly when and where the Court is to sit is a fundamental irregularity which easily vitiates the proceedings, and makes it a nullity, however, well conducted and decided. The defect is extrinsic to the adjudication.”

The confirmation of whether a party was served Court processes can be verified from the record of proceedings. I have examined the record of proceedings. The order for substituted service on the Appellant, who was 1st Defendant at the lower Court, reads:-
“1. That an order is hereby made that the 1st Defendant be served the Originating Processes and other subsequent processes filed in this suit by substituted means by serving the processes on the Clerk of National Assembly at the National Assembly Complex, Three Arm Zone FCT Abuja for onward transmission to the 1st Defendant.
2. That case is adjourned to 30th January, 2019. (page 152 of the record of appeal).”

I agree as submitted by the learned senior counsel that the import of the underlined phrase is for an awareness of the learned trial judge of the necessity of the originating summons to actually reach the Appellant. The essence of serving hearing notice, either personally or by substituted service is to ensure that notice of hearing is served on parties in a matter. The underlying factor is for the parties to be aware of the date of hearing of matters of the case in which they are involved. In that circumstance the party serving the Court ought to ensure that the adverse party is adequately served before proceedings are conducted in the matter. Where a party complains about non-service of processes, the onus is on the party asserting service to establish that there was service on the adverse party – Maduka vs. Ubah (2015) 11 NWLR (Pt. 1470)201 at page 221. It is also the duty of the Court to be duly satisfied that there was actual service on the party to be served especially when such adverse party fails to appear in Court.
In UBA Plc. vs. Effiong (supra) this honourable Court held:-
“Now as in the instant case where it has been arrived that a Court process such as

a hearing notice or a motion for judgment has been served on the adverse party, it is required and indeed necessary for the trial Court to be duly satisfied by having before it evidence of that service as require by law. There must be satisfactory proof of such service. This is moreso, in such an instance where the adverse party who has been alleged to have been duly served, failed to appear in Court in response to the process allegedly served on him. Thus as a result of the untoward developments which might ensued and somewhat affect him as a result of consequences of such failure to appear, the Court must be absolutely, duly and fully satisfied that the alleged service was actually effected as required by law. The proof of service must be satisfactory and verifiable.

In this matter, the 1st Respondent complied and transmitted Additional Record of Appeal comprising of the Notice of Originating Processes and hearing notices served on parties in this case. A perusal of the Index of Reference shows that columns 5,8, 9 and 12 are in respect of the Appellant who was 1st Defendant in the lower Court. Column 5 states “Hearing Notice on the 1st Defendant dated

12th November, 2018” at page 7. A glance at the document shows no evidence of any such service on either the Appellant or the Clerk of National Assembly as there is no single endorsement on the document of who received the process. The columns of “Name, Address, Rank, Time, Date, Sign” endorsed at the back of the document are completely blank. They were not filled. The import is that the process, though issued, was never served on any person. Column 8, at page 12 of the Additional Record is – “Affidavit of non-service of the Originating Process and Hearing Notice on the 1st Defendant dated 21st November, 2018.” The depositions in this document showed clearly that neither the Appellant nor the Clerk of the National Assembly was served. This Affidavit of Non-service was duly sworn to before the commissioner for Oaths by the Bailiff of the Court.
?
Column 9 is Affidavit of service of the Originating Processes and Hearing Notice on the 1st Defendant at the office of the Clerk of the National Assembly dated 27th December, 2018 at page 13 of the Additional Record of Appeal. This purported affidavit of service is also plagued with the same deficiencies as

the affidavit in column 5. Though issued, there is no single endorsement reflecting service on anyone. The last is column 12 – Hearing Notice on 1st Defendant dated 5th February, 2019 at pages 20 and 21. A mere glance at page 20 shows the document was addressed for service for the 2nd Defendant and not the 1st Defendant. However, the 1st Defendant in paragraph 4.9 of his brief claimed that the hearing notices on the Appellant are at pages 3,4,5,6, 18 and 19 of the additional record of appeal. A simple glance at pages 3, 4,5 and 6 also show worthless documents that do not depict the person to be served. Even though it is settled that affidavit of service is prima facie evidence of service, it is not an irrefutable proof of service. For an affidavit of service to be potent and be conclusive proof of evidence of service, it must contain necessary details such as the name and person effecting the service, the person being served or mode, recipient of the service, date, time and place of service. In other words, the proof of service must be satisfactory and verifiable. In Ahmed vs. Ahmed & Ors. (2013) LPELR 21143 (SC), the Supreme Court, per Rhodes

? Vivour JSC held that
“An affidavit of service is not conclusive proof of service process. The burden of proving service rests on the person asserting that there was service. An affidavit of service must contain details of the following, when, who, what and where.”
The purported affidavits of service I have referred to above are bereft of such details with regard to service on the Appellant. See Wappah vs. Mourah (2006) 18 NWLR (Pt 1010) 18 at p. 45.

However, the Hearing Notice at page 18 for hearing slated for 5th February, 2019 was addressed to the 1st Defendant and at the back, which is page 19, there is a stamp of the National Assembly, Abuja, but no endorsement as to the particulars of the officer who received the process. Assuming this affidavit of service at page 18 is in order, it is only in respect of proceedings of 5th February, 2019. Even then, a perusal of the record of proceedings of that day (5/2/2019) will reveal that nowhere in the record of proceedings was it indicated that the originating processes and/or hearing notice for the proceedings of that day was served on the Appellant. Yet, the counsel for the 1st Respondent

moved the originating summons “in the absence of defence” and the case was adjourned for judgment to 11/2/19 with no order of service by the Court to be effected on the Appellant. (pages 148 -149 of record of appeal).

From records, judgment was not delivered on 11/2/19 but on 12/2/2019, and again no indication that service was directed to issue on the Appellant.

Where a party in a case who is required to be served with hearing notice is absent from Court, it is incumbent on the Court to enquire and record whether or not the said party was duly served with hearing notice at the commencement on each day of the proceedings and direct service at the adjournment of each proceeding so as to notify the absent party of the subsequent date of hearing of the matter.
In COP vs. Iheabe (1998) 11 NWLR (Pt. 575) 666 at 679, in Court held succinctly thus:
It is the law that whenever a Court adjourns a matter in the absence of another party, it is only fair that Court serve the notice on that party. This is to afford an opportunity to hear him. This is one of the numerous occasions where service is necessary. Failure therefore to put the

defendant/appellant on notice as in the matter before us at hand would render the whole proceedings a nullity.”
The principle of law is that trial Court in order to determine a suit against the defendant, has to go the extra mile to see that relevant laws and rules of Court as to service of process on parties are complied with fully – Wappah vs. Mourah (2006) 18 NWLR (Pt. 1010) 18 at page 49 paragraphs B – C.
In the instant case, the trial Court at page 160 merely simply stated that –
From the evidence before the Court particularly the affidavit of service it appears to me that the 1st – 3rd Defendants were duly served with all the originating processes but failed to either enter appearance nor file processes.
There is no evidence that the trial Court actually verified whether the processes were duly served before giving judgment in default of appearance. Yet this is the statement (page 160) that the 1st Respondent placed heavy reliance to support his contention that the trial Court ensured that the Appellant and all other parties in the suit were served before hearing and determination of this suit, whereas there is

no single iota of such evidence in its records. The law is trite that failure to serve Court process of hearing notice, where one is required is a fundamental breach of fair hearing of the party concerned, and renders the proceedings and subsequent judgment a nullity – Pam vs. Mohammed (2008) LPELR – 2895 SC, (2008) 16 NWLR (Pt. 1112) 1, Olorunyolemi vs. Akhagbe (2010) 8 NWLR (Pt. 1195) 62 INEC vs. DPP & ors. (2014) LPELR – 22809 (CA), Achuzia vs. Ogbomah (2016) LPELR – 40050 (SC) at page 14. In Nyesom vs. Peterside (2016) 7 NWLR (Pt. 1572) 452 at page 551 the Supreme Court, per Okoro ]SC held as follows:-
“There is no doubt that fair hearing is in most cases synonymous with natural justice, an issue which clearly is at the threshold of our legal system. Once there is denial of fair hearing as guaranteed under Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the whole proceedings automatically become vitiated with a basic and fundamental irregularity which renders them null and void.”

The judgment of the trial Court delivered on 12th February, 2019, is a nullity for failure to serve

originating processes and hearing notices on the Appellant. I hereby set it aside.
ISSUE TWO is resolved in favour of the Appellant.

ISSUE THREE
“Whether the Default judgment of the trial Federal High Court delivered on 12th February, 2019 in suit FHC/ABJ/CS/1257/2018 BETWEEN BARRISTER IBRAHIM ZAILANI VS. SEN. LAWAL Y. GUMAU & 2 ORS., was not a nullity.”

The contention of the Appellant herein is that the learned trial Judge failed to properly evaluate the evidence, which is mainly documented before entering a declaratory judgment in favour of the 1st Respondent. He relied on Sylva vs. INEC (2018) 18 NWLR(Pt. 1651) PG 310 @ 359 PARAS. G-H; ONOVO VS. MBA (2014) 14 NWLR (PT 1427) PG 391 @ 437 -438 PARAS H -B; AKANDE VS ADISA (2012) 15 NWLR (PT 1324) PG 538 @ 571 @ PARAS A-C.

On his part, the 1st Respondent, in the main submitted that it is misleading to contend that the 1st Respondent’s case was squarely based on documentary evidence. Rather, it was based on affidavit evidence and having not been categorically countered or denied, the facts deposed therein are deemed admitted – Efet vs. INEC & 2 Ors. (2011) 1 – 2 SC

(Pt. 111) 61 at 85.

G-H; ONOVO VS. MBA (2014) 14 NWLR (PT 1427) PG 391 @ 437 – 438 PARAS H -B; AKANDE VS ADISA (2012) 15 NWLR (PT 1324) PG 538 @ 571 @ PARAS A-C. Yusuf vs. Mashi (2017) All FWLR (Pt 912) 664 at 707.
In Nyesom vs. Peterside (2016)7 NWLR (Pt. 1512) 452 at page 535, paragraph F-H, the Supreme Court held thus:
“It will be recalled that the 1st and 2nd Respondents sought declaratory reliefs before the Tribunal. The law is that where a party seeks declaratory reliefs, the burden is on him to succeed on the strength of his own case not on the weakness of the defence (if any). Such reliefs will not be granted even on admission.”
It is obvious in this appeal that, the learned trial judge, in arriving at his judgment, merely relied on non-appearance of the Appellant and delivered default judgment in favour of the 1st Respondent without any evaluation or appraisal of evidence; not considering the fact that the 1st Respondent’s suit is declaratory which required him to prove his case completely on the strength of his own case, and not to depend on the weakness of the defence. Had the learned trial judge evaluated the evidence adduced by the 1st

Respondent, he could have discovered the worthlessness of Exhibit 7 upon which the 1st Respondent predicated his case. Hence, the implication is that apart from the fact that this suit is statute barred, as already held by me above, on the merit, the very foundation of his action upon which he is claiming his right is faulty as Exhibit 7, the purported report of the Appeal Committee which he claimed to have declared him the winner, is completely worthless, with no probative value whatsoever in that it is undated and unsigned. The law is trite and there are legion of authorities to the effect that an unsigned, undated document is a worthless piece of paper which can not be shown to be genuine and legal, and it is of no forensic or probative value. No right can be hoisted on it. See: Ojibah vs. Ojibah (1991) 5 NWLR (Pt. 191) 296 at page 312, Omega Bank vs O.B.C Ltd (2005) All FWLR (Pt. 249) 1964, Amizu vs. Nzeribe (1989) 4 NWLR (Pt. 118) 755, Garuba vs. K.I.C. Limited (2005) 5 NWLR (Pt. 917). In APG vs. Al-Makira (2016) All FWLR (Pt. 826) 171 at page 494, See APCO vs. Almakira (2016) 5 NWLR (Pt. 1505) 316 the Supreme Court, per Nweze JSC held:
“It is common ground

that Exhibit P20 was not signed. That puts paid to the issue of the weight to be attached to it. As this Court held in Jinadu vs. Esurombi-Aro (2009) All FWLR (Pt. 483) 1231, (2009) NWLR (Pt. 1145) 55, documents that do not bear the signatures of their makers should attract little or no weight.”

I am in agreement with the learned senior counsel that an unsigned document of clearly unexplained and dubious origin, like Exhibit 7 in this case, cannot be relied upon by the Court in resolving crucial issues in dispute in a case. Furthermore, Exhibit 7 is devoid of any heading as to what document it is. Even the names of the members of the so called Appeal Committee are not reflected on the document. In effect, on the face of the document itself, the trial judge would have found that it conveyed no information whatsoever, worth being relied upon.

The argument of the 1st Respondent that the assertions in the affidavit in support of the originating summons, are sufficient and that Exhibit 7 was a mere surplausage and therefore its deficiency in form is immaterial is untenable. The essence of attaching Exhibit 7 was to substantiate his case which,

being one for declaratory relief needed some high degree of proof for him to be entitled to judgment.

One of the deficiencies in the 1st Respondent’s case, as argued by the learned senior counsel is the failure to attach the result of the primary election he allegedly won. The law is settled, without any peradventure whatsoever, that any party claiming to have won an election in which there is a dispute, such as the 1st Respondent in this case, is required to present the result of such election in order to entitle him to the relief sought. See the cited cases of Emerhor vs. Okowa (2017) All FWLR (Pt. 896) 1818 at 1711, Maku vs. Almakura (2016) All FWLR (Pt. 832) PG 1606 @ 1618 paragraphs A-C. In Alaki vs. Shaaho (1999) 3 NWLR (Pt. 595) page 387 @ 398 paragraphs A-B the Court held as follows:
“There is no doubt that the best way a candidate to an election can challenge the result of an election is to produce the official result of the election handed over to him at the polling station.”

I do not agree with the submission of the learned counsel for the 1st Respondent in response to this point that the issue raised by the Appellant is a

fresh issue upon which leave of this Court must be obtained otherwise the issue raised ought to be discountenanced as canvassed in paragraphs 5.15 and 5.16 of the 1st Respondent’s Brief of argument. By my understanding, the point made by the learned senior counsel is that the 1st Respondent on his own showing failed to establish his case and that if the learned trial Judge had evaluated the evidence adduced before him, he would not have entered judgment for the 1st Respondent.

The law is that a candidate who scores the highest valid votes in an election is declared the winner of that election. Definitely, that was the claim of the 1st Respondent in his suit. See paragraphs 8, 9 and in support of his Originating Summons reproduced, hereunder for ease of reference:-
“8. That Bauchi South Senatorial District comprises of seven (7) local government areas and by the time the primary election of 3rd October, 2018 were conducted, I was leading in six (6) out of the seven (7) Local government areas. The result of the election is as follows:
(a) Bauchi Local Government Area 53,000
(b) Kirfi Local Government Area

21,000
(c) Dass Local Government Area 19,000
(d) Toro Local Government Area 39,000
(e) Tafawa Balewa Local Govt. 30,000
(f) Alkaleri Local Govt. Area 25,000
9. That by the end of the primary elections, I had a total of 157,000 votes and the only Local Government that had problem during the election was Bogoro Local government area where the election was postponed as a result of the violence which erupted there.
10. That it was with great embarrassment and shock that I later received the report that the chairman of the Election Committee, one Professor Bakori had wrongfully declared the 1st Defendant as the winner of the primary election.”

I therefore disagree with the argument of the 1st Respondent’s Counsel at paragraph 5.15 of the 1st Respondent’s Brief of Argument that he was not contesting that he was declared the winner of the Primary Election. Even a glance at the results quoted in paragraph 8 does not evidence that he is leading in the election

because no other scores were shown to be in comparison with his own results. The learned trial Court was therefore in error when he entered judgment in favour of the 1st Respondent who claimed to have won the primary election but failed to exhibit the results of the said primary election he allegedly won.

Evaluation of evidence is the primary duty of a trial Court. However where there is evidence of failure to evaluate evidence leading to miscarriage of justice as in this case, appellate Court is in a position to evaluate the evidence, especially where there are no witnesses whose demeanor, must be put into consideration in assessing their evidence. The evaluation of evidence in this case is tied to the depositions in the affidavit and the documents attached. This Court is therefore in a good standing to interfere and evaluate the evidence in the case.
See Gundiri vs. Nyako (2014) 2 NWLR (Pt. 1391) PG 211 @ 239 paragraph F-G; Nwadike vs. Ibekwe (1987) 4 NWLR (Pt. 67) 718, UBA Plc. vs. BTL Industries Limited (200) All FWLR (Pt. 352) page 1615 at 16841, paras. F-G, Attorney General, Oyo State and Anor vs. Fairlakes Hotels Limited and Anor (No.2) (1989)

5 NWLR (Pt.121) 255 at 283, 292; Ayeni vs. Dada (1978) 3 SC 35; Akinola vs. Oluwo (1962) 1 ACNLR 352.”

In this case, the learned trial judge failed to put into consideration one of the fundamental requirements of a declaratory relief which is to satisfy the Court that the claimant is entitled to the relief sought, by adducing cogent and reliable evidence in support of his claim ? Chukwuma vs. Shell Petroleum (1993) 4 NWLR (Pt. 289) page 512, Omisore & Ors. vs. Aregbesola & Ors (2015) LPELR – 24803 (SC) pages 102 – 103.

The learned trial Judge obviously fell into grave error by granting judgment in default of defence when the claimant failed to establish his case. In effect, even on the merit evidence adduced by the 1st Respondent failed to meet the requirement of proof in a claim for declaration. The suit was liable to be dismissed.
ISSUE THREE is also resolved in favour of the Appellant, against the 1st Respondent.

The concomitant effect is that this appeal on all angles is meritorious and is hereby allowed.

Now, having regard to my holding on issue one that the trial Court was devoid of jurisdiction to try

and determine the suit for being statute barred, the suit FHC/HC/CS/1257/2018 is hereby struck out.
Parties are to bear their respective costs.

STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Tinuade Akomolafe – Wilson JCA.

I am in agreement with the resolution of the issues and the conclusion that the trial Court was devoid of jurisdiction in hearing suit No FHC/HC/CS/125712018 and the suit must be struck out.
Let me just add a word of explanation on the issue at stake here.

The facts of this case have been beautifully recapped in the lead judgment of my learned brother and I adopt them for the explanation I am making. The crux of the matter between the parties was the conduct of the Primary Election of the 2nd Respondent, All Progressive Congress (APC) which was held on the 3rd day of October, 2018. This date of event was accepted by the appellant. Paragraphs 9, 10 and 11 of the affidavit in support of the Originating Summons read:-
1. That by the end of the primary elections, I had a total of 157,000 votes

and the only Local government that had a problem during the election was Bogoro Local Government Area where the election was postponed as a result of the violence which erupted there.
2. That it was with great embarrassment and shock that I later received the report that the chairman of the Election Committee, one Professor Bakori had wrongfully declared the 1st Defendant as the winner of the primary election.
3. That miffed at the situation, I complained to the Appeal Committee of the 2nd Defendant by a petition dated 4th October, 2018 where I prayed the Committee to restore my victory as the winner of the Bauchi South Senatorial Primary Election. A copy of the Petition dated 4th October 2018 is hereby attached as Exhibit G.

It is in the open from the deposition of the appellant on oath that the cause of action in this case arose on the 3rd day of October, 2018 when he said he got the “great embarrassment and shock” that the electoral Committee of the Primary Election” had wrongfully declared the 1st Defendant as the winner of the Primary Election. Instead of the appellant going to Court immediately to take action he chose the pathway of

reconciliation offered by the Political Party by appealing to the Appeals Committee of the Party. This course of action was a probable choice of the appellant. There is no problem with that choice save that it is a gamble between pursuing administrative remedy and going to Court. It is really time for us to have a closer look at the dictates of the Constitution of a Political Party vis-a-vis the Constitution of the Federal Republic of Nigeria. The truth is this, the Nigerian Constitution 1999 as amended is Supreme and all Laws in Nigeria must congregate and bow to it. No one can re-write the Constitution of Nigeria and no other rules of procedure can amend the Constitution of Nigeria and no other Rules of Procedure can amended the Constitution.
The 1999 Constitution of Nigeria as amended is by virtue as of Section 1 (1) and (3) there of Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. If any Law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void.<br< p=””

</br<

In the instant case Section 285 (9) provides authoritatively that notwithstanding anything to the contrary in the 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. This is the 4th Alteration of the Constitution. The intendment of this Constitution is to ensure that every pre-election matter is filed within 14 days, and the matters timeously heard within the allotted time frame. The time set is sacrosanct and cannot by any dint of circumstance be enlarged by the Court or the Parties. As a matter of fact nothing stops the running of time set by Section 285 of the Constitution as amended under the 4th Alteration.
In limitation matters negotiation by Parties cannot stop time from running. See Adio, JSC in EBOIGBE V. NNPC (1994) LPELR – 992 (SC) (1994) 5 NWLR (Pt. 347)649, where his Lordship held that –
“As for the period during which the parties engaged in negotiation, the law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does

not cease to run merely because the parties engaged in negotiation. The best cause for a person to whom a right has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiation fails. If, as in this case, the negotiation does not result in a settlement or in an admission of liability, the law will not allow the time devoted to negotiation to be excluded from the period which should be taken into consideration for the determination of the question whether a claim has been statute-barred. Negotiation by the parties does not prevent or stop time from running. The law does not prohibit parties to a dispute from engaging in negotiation for the purpose of settling the dispute. Except where as a result there is what can be reasonably regarded as a settlement of the dispute or an admission of liability on the part of a defendant, the limitation time continues to run.”
?In the instant case, the appellant’s contention is that he appealed to the Appeals Committee set up by the 2nd Respondent first and that it is after the appeals Committee finished looking into the complaint that he had to come to

Court. The Appeals Committee set up by the 2nd appellant is a creation of the Constitution of the 2nd Respondent as their own domestic issue. This cannot in any form stop, abridge or extend the time set by the Constitution of the Federal Republic of Nigeria, 1999 as 4th amended in Section 285 (9) of the Alteration. It follows therefore that time did not stop running while the appeal to the Party’s Appeal Committee was on.

It is in this respect and the fuller reasons advanced by my learned brother in the lead judgment that I also hold that the time had run out for the claim of the Parties before they approached the lower Court.

The claim therefore was dead and was not competently before the lower Court. The Court in the circumstance had no jurisdiction. I agree with my learned brother in the lead Judgment that the appeal has merit and it is allowed. I abide by all consequential orders as made in the lead judgment.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, TINUADE AKOMOLAFE-WILSON, JCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

H. M. Liman, SAN and I. M. Diddo, SAN with them, I. D. Dangana Musa Idris Talle and Adokwe AdakweFor Appellant(s)

A. Mustapha, SAN for 1st Respondent/Applicant with him, J. S. jibrin, A. S. Idris, M. Umar, U. A. Sadiq and Mustapha Baba TafarkiFor Respondent(s)

Appearances

H. M. Liman, SAN and I. M. Diddo, SAN with them, I. D. Dangana Musa Idris Talle and Adokwe AdakweFor Appellant

AND

A. Mustapha, SAN for 1st Respondent/Applicant with him, J. S. jibrin, A. S. Idris, M. Umar, U. A. Sadiq and Mustapha Baba TafarkiFor Respondent

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