ALL PROGRESSIVE CONGRESS & ANOR v. MR. CHARLES OBIECHINA OLISA & ANOR
(2019)LCN/13103(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of April, 2019
CA/B/122/2019
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. ALL PROGRESSIVE CONGRESS
2. MR. LAWRENCE OZEGBE Appellant(s)
AND
1. MR. CHARLES OBIECHINA OLISA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
RATIO
WHETHER OR NOT THE ISSUE OF AN ACTION BEING STATUTE BARRED TOUCHES ON THE JURISDICTION OF THE COURT
The issue of a Suit being statute barred is very fundamental. It touches on jurisdiction of the Court. It follows that where an action is statute barred, the consequence is that the right of action becomes extinguished by law and unenforceable by a Court action for ever, so that the Claimant remains without a remedy and his Claims would be dismissed. See
EMIATOR VS. NIGERIA ARMY (1999) 12 NWLR (PT.631) P. 362.
ONUMALOBI VS. N.N.P.C(1999) 12 NWLR (PT.632) P. 639. PER NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): By an Originating Summons the 1st Respondent sought for declarations that he was the winner of the 1st Appellant?s Primary election conducted on the 5th of October, 2018 for its Candidate for Ndokwa East State Constituency for the election into the Delta State House of Assembly. The 1st Respondent also sought orders for the 1st Appellant to substitute the name of the 2nd Appellant whom the 1st Appellant chose and forwarded his name as the winner of the said primary election with his (1st Respondent?s name).
The committee set up by the 1st Appellant (APC) headed by General Onoja (Rtd) conducted the Primary election and adjudged the 2nd Appellant as the winner.
(The Originating Summons is at pages 2 ? 5 of the main Record of Appeal)
The Originating Summons and the two preliminary objections of the Appellants were taken on the same day.
?In a considered Judgment delivered on 25/2/19 the learned trial Judge, T.B. Adegoke, J, of the Asaba division of the Federal High Court dismissed the two preliminary objections
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and gave judgment to the 1st Respondent. This appeal is predicated on the said judgment.
The Appellants filed an Amended Notice of Appeal on the 4th of March, 2019. Nine issues were formulated by learned counsel for the Appellants F.A. Onuzulike Esq. for determination they read:
1. ?Whether the 1st respondent?s Originating Summons filed on the 6/11/18 was not statute barred.
2. Whether the 1st Respondent had the Locus Standi to institute a Suit challenging the choice of candidate of the 1st Appellant.
3. Whether the trial Court had the jurisdiction to entertain a Suit which is not justiceable.
4. Whether the 1st Respondent?s Suit does not amount to abuse of judicial process.
5. Whether the trial Court?s finding on the result that declared the 2nd Appellant the winner of the 1st Appellant?s Primary election for Ndokwa East State Constituency for the election into the Delta State House of Assembly is not perverse.
6. Whether the membership of the Peoples Democratic Party was one of the issues nominated for determination or part of the reliefs Claimed by the 1st Respondent in the Originating Summons.
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7. Whether the 2nd Appellant is not a member of the 1st Appellant or whether the 2nd Appellant is still a member of the Peoples Democratic Party.
8. Whether it is not the right of a Political party to say who its members are.
9. Whether the 1st Respondent proved his case from the evidence before the Court.
The second Respondent (INEC) did not file any Brief in this appeal.
Learned counsel for the 1st Respondent C.E. Dumbili Esq. distilled seven issues similar to the issues raised by learned counsel for the Appellants.
The submissions of both counsels are contained in their respective Briefs. I do not intend to reproduce them here.
I will start with the 1st issue as distilled by Learned Counsel for the Appellants and adopted by Learned Counsel for the 1st Respondent. The reason is that it deals with the issue of jurisdiction i.e. whether the Originating Summons filed by the 1st Respondent on the 6/11/18 is statute barred.
A determination of the said issue No. 1 will make the consideration of the other issues either necessary or unnecessary.
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?In determining whether or not the Originating Summons filed at the Court below is statute barred or not, a reproduction of Section 285(9) of the 4th Alteration to the Constitution of the Federal Republic of Nigeria 1999 (as amended) becomes inevitable. The said Section 285(9) states:
?(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.? (Underlining mine for emphasis)
It is therefore important to determine when the cause of action accrued to tie it to the provisions of the said Section 285(9) of the 1999 Constitution.
It is trite that when the issue of an action being statute barred is raised, the period of limitation is determined by the Writ of Summons. In this case the affidavit in support of the Originating Summons alleging the wrong said to have been committed giving rise to the cause of action and when it was committed.
In paragraph 12 of the supporting affidavit to the Originating Summons the 1st Respondent averred as follows:
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?The Primary election of the 1st Defendant to determine the Candidacy of the 1st Defendant in respect of its ticket for Ndokwa East State Constituency in Delta State House of Assembly for the forthcoming general elections slated for 2nd March, 2019 was conducted on the 5th day of October, 2018 at the Ndokwa Primary School Agweiyom in Ndokwa East Local Government Area, Delta State.?
In paragraph 21 of the same affidavit the 1st Respondent averred as follows:
?That I, having celebrated my victory with my supporters, friends and family suddenly received an information from the headquarters of the 1st Defendant to the effect that the 2nd Defendant?s name had been penciled down and substituted for my own name and that the 1st Defendant wishes to issue the Certificate of Return of the Party Primaries to the 2nd Defendant and consequently submit the name of the 2nd Defendant to the 3rd Defendant.?
In Paragraph 22, 1st Respondent averred as follows:
?That all attempts made by me to try to stop the decision to change my name for that of the 2nd Defendant proved abortive as the agents of the 1st Defendant insisted that it was an order from the
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top most echelon of the 1st Defendant party at the Abuja headquarters.?
In paragraph 23 he stated thus:
?That I had to write a Petition to the National Appeal Panel of the 1st Defendant at Abuja headed by Prof. Osunbor Oserheimen, wherein I complained of unlawful substitution of my name after having won the Primary election of the 1st Defendant.?
After the above detailed averments narrating all he knew about his substitution, the same 1st Respondent turned round in paragraph 26 to state as follows:
?That I was shocked when I was informed on the 2nd day of November, 2018 that my name was not subsequently submitted but that the name of the 2nd Defendant was submitted in my name?s stead.?
As at the time of the averments made in paragraphs 21, 22 and 23 reproduced above, all the facts needed to have commenced the 1st Respondent?s Suit were complete. The cause of action which was the substitution of the name of the 1st Respondent with that of the 2nd Appellant by the 1st Appellant (APC) had arisen and the 1st Respondent was fully aware of these facts.
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Respondent annexed Exhibit B in his Counter affidavit in opposition to the Appellants? affidavit in support of their application to dismiss the Suit. (See pages 620 ? 636 of the Records).
The report bears 15th October, 2018 as its date, the forwarding letter also bears 15th of October, 2018 as well. The 1st Respondent had stated that when he discovered that his name was substituted with that of the 2nd Appellant by the 1st Appellant, that he petitioned the 1st Appellant?s Appeal Panel and the aforementioned Exhibit B is the report of that Panel. I therefore agree with learned counsel for the Appellants when he contended that the 1st Respondent was aware that his name had been substituted with that of the 2nd Appellant before the 15th of October, 2018. ?It is my humble but firm view that from the facts averred in the paragraphs of the affidavit reproduced above, that the cause of action arose before the 15th of October, 2018 when the Appeal Panel report of the 1st Appellant was issued. 1st Respondent had averred that the name of the 2nd Appellant had been replaced with his and sent to the 2nd Respondent before the 15th of October, 2018.
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It is very clear from the averment in paragraph 26 of the affidavit in support of the Originating Summons reproduced above, that considering the detailed averments in paragraphs 21, 22 and 23 of the said affidavit, that the 1st Respondent contradicted himself in paragraph 26 in an attempt to conceal when the cause of action arose. The said paragraph 26 was therefore a summersault when he averred that ?he was shocked when he was informed on the 2/11/18 that his name was not subsequently substituted.?
It is my view that the learned trial Judge after reading paragraphs 21, 22 and 23 had no reason or justification to rely on paragraph 26 to dismiss the issue of the Suit being statute barred.
?It is clear that the 1st Respondent couldn?t have written a petition to the 1st Appellant Appeal Panel complaining specifically about his substitution based on speculation. He also could not have written a Petition if the cause of action had not accrued. Exhibit B is the report of the Appeal Panel. That report bears the 15th of October, 2018 as its date as well as the forwarding letter. It follows therefore that the 1st
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Respondent was aware of his substitution before he took the decision to write a Petition to the Appeal Panel. He was aware of the substitution and the chain of events was never broken.
In an attempt to hide the exact date the cause of action accrued, 1st Respondent in the said paragraph 26 of his affidavit in support of the Originating Summons deliberately failed to mention how he got the information of the 2/11/18 or who gave him the information. It is on Record that the 1st Respondent filed his Suit at the Federal High Court Asaba on the 6/11/18 and considering the fact that the date on the said Exhibit B bears 15/10/2018, by simple arithmetic, the Suit was filed outside the 14 days stipulated by Section 285 (9) of the 1999 Constitution of the Federal Republic of Nigeria earlier reproduced in this judgment.
The filing of the Originating Summons outside the statutory period has resulted in unpleasant consequences for the 1st Respondent. The suit filed on the 6/11/18 having been filed outside the 14 days period has regrettably strayed outside the period stipulated by Section 285(9) of the 1999 Constitution.
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Section 285(9) of the Constitution does not permit, allow or make room for extension of time.
The issue of a Suit being statute barred is very fundamental. It touches on jurisdiction of the Court. It follows that where an action is statute barred, the consequence is that the right of action becomes extinguished by law and unenforceable by a Court action for ever, so that the Claimant remains without a remedy and his Claims would be dismissed. See
EMIATOR VS. NIGERIA ARMY (1999) 12 NWLR (PT.631) P. 362.
ONUMALOBI VS. N.N.P.C(1999) 12 NWLR (PT.632) P. 639.
Having dealt with issue one and decided that the Suit is statute barred, this decision renders a consideration of the other issues unnecessary and academic.
In the premise, this Appeal is allowed. Issue one is resolved against the 1st Respondent and in favour of the Appellants. The Suit at the Court below having been caught by Section 285(9) of the 1999 Constitution, robbed the learned trial Judge of jurisdiction to hear the Suit. His dabbling into the Suit and the decision arrived at was a nullity as if it never existed. ?Accordingly, the Judgment of T.B Adegoke, J, in suit No.
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FHC/ASB/CS/91/2019 delivered on the 25/2/2019 having been delivered without jurisdiction is hereby set aside. It is dismissed accordingly.
I make no order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: My learned brother, CHIOMA EGONDU NWOSU-IHEME (Ph.D), JCA has afforded me an opportunity to read before now the lead Judgment just delivered. I agree entirely with the reasoning and conclusion arrived at that this appeal has merit and it is accordingly allowed.
The Judgment of T.B. Adegoke, J, in Suit NO. FHC/ASB/CS/91/2019 delivered on the 25/2/2019 having been delivered without jurisdiction is hereby set aside. It is dismissed accordingly.
I make no order as to costs.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, Chioma Egondu Nwosu-lheme, JCA, just delivered.
?I agree with the decision in the leading judgment.
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Appearances:
F.A. Onuzulike with C.U. IgweFor Appellant(s)
C.E. Dumbili for the 1st Respondent.For Respondent(s)
Appearances
F.A. Onuzulike with C.U. IgweFor Appellant
AND
C.E. Dumbili for the 1st Respondent.For Respondent
