ABDULRAUF ABDULKADIR MODIBBO v. ABUBAKAR BABAZANGO & ORS
(2019)LCN/13193(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/53/19
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
ABDULRAUF ABDULKADIR MODIBBO Appellant(s)
AND
1. ABUBAKAR BABAZANGO
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
WHETHER OR NOT A COURT HAS JURISDICTION TO LOOK INTO THE SUBSTANTIVE MATTER OF A SUIT HAVING ADJUDGED SAME TO BE STATUTE BARRED
It is the law that where the Court has no jurisdiction to look into the substantive matter, having adjudged same statute barred, the entire proceedings thereafter are a nullity, no matter how well conducted. See, NDAEYO VS. OGUNAYA (1977) 1 SC 11; CHACHAROS VS. EKIMPEX LTD (1988) 1 NWLR (PT. 68) 88; OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508; BAKARE VS. ATTORNEY GENERAL OF THE FEDERATION (1990) 5 NWLR (PT. 152) 516 and JERIC (NIG) LTD VS. UNION BANK OF NIGERIA PLC (2000) 15 NWLR (PT. 691) 447. Where an objection to the jurisdiction of the Court is timeously raised and it is upheld, it saves time and costs and a trial that is a nullity is avoided no matter how well argued or decided upon. Resolving, the issues on the merit after the Court held that it was statute barred and dismissed same, is an exercise in futility. The trial Court had no jurisdiction to have done so. In NASIR VS. CIVIL SERVICE COMMISSION KANO STATE & ORS (2010) LPELR ? 1943 (SC) P. 16, Paragraphs C-D his Lordship Mukhtar JSC (as he then was) simply put the effect of a matter that is statute barred thus: Once the action was statute barred there was nothing to build on it.?
See also ASABORO & ANOR VS. PAN OCEAN OIL CORPORATION (NIG) LTD & ANOR (2017) LPELR 41558 (SC) PP 30 ? 31, Paragraph E. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Federal High Court Yola, delivered in suit No. FHC/YL/CS/7/2019 on the 6th day of March, 2019 by A. M. Anka, J.
The background facts are that the 1st Respondent herein by an Originating Summons filed on the 29th day of October, 2019 claimed against the Appellant amongst other reliefs the following:
?1. A DECLARATION that the 1st Respondent?s Primary Election conducted for Yola North/Yola South/Girei Federal Constituency on the 7th day of October, 2018 is NOT in compliance with the provisions of Section 87(4) (c) (i) ? (ii) of the Electoral Act, 2010 (as amended) to warrant the 1st Respondent submitting the name of the 2nd Respondent to the 3rd Respondent as its candidate for the 2019 General Election into Yola North/ Yola South/Girei Federal Constituency of Adamawa State.?
At the trial Court, pursuant to a Motion on Notice, the following suits before the trial Court were consolidated: Suit Nos. FHC/YL/CS/4/2019, FHC/YL/CS/6/2019 and FHC/YL/CS/7/2019. The Originating Summons was heard along with the
1
Preliminary Objections raised by the Appellant and the 2nd Respondent. The trial Court in its judgment upheld the preliminary objections predicated on the fact that the 1st Respondent?s suit was stale in that it was brought outside the 14 days period allowed by the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017. It was the contention of the learned counsel to the Appellant that the trial Court having upheld the Preliminary Objections dismissed the suit. The trial Court consequently proceeded to consider the substantive suit and at the end of which he made far reaching declarations most of which were not claimed by the parties without an opportunity to address the Court on the propriety or otherwise of making such far reaching declarations.
It is against the judgment of the trial Court in the substantive suit that the Appellant is unhappy with, thus this appeal. The following five (5) issues were distilled for the determination of the appeal thus:
(i) ?Whether having found as a fact that the 1st Respondent?s qua Plaintiff’s claim was stale thereby
2
depraving him of both the right of cause of action and extinguishing his right to maintain the action, the trial Court was right to have subsequently proceeded to make far reaching declarations in the selfsame suit. (Ground 1).
(ii) Whether the trial Court having found that the 1st Respondent was not consistent in stating his case, it was bound to have dismissed the substantive claim. (Ground 2).
(iii) Whether having regards to the right to fair hearing enshrined in the 1999 Constitution, the Court below was duty bound to afford the parties herein the opportunity to address it on issues not specifically raised by any party before its decision thereon. (Grounds 4 and 5).
(iv) Whether the Court below is not bound by its finding of fact to the effect that only an election Tribunal set up pursuant to Section 285(1) of the 1999 Constitution is duly empowered to nullify an election conducted by INEC. (Ground 6).
(v) Whether the facts and circumstances of this appeal are on all fours with that as existed in APC V. KARFI (2008) 6 NWLR (PT. 1616) page 479 as to warrant the Court below apply same hook line and sinker to the facts and
3
circumstances of this suit.? (Ground 3 and 7).
The 1st Respondent on his part also distilled five (5) issues for the determination of the appeal thus:
i. ?Whether having found as a fact that the 1st Respondent?s qua Plaintiff?s claim was stale thereby depraving him both the right of cause of action and extinguishing his right to maintain the action, the trial Court was right to have subsequently proceeded to make far reaching declarations in the selfsame suit. (Distilled from Ground 1 of the Notice of Appeal)
ii. Whether the trial Court having found that the 1st Respondent was not consistent in stating his case it was bound to have dismissed the substantive claim. (Distilled from ground 2 of the Notice of Appeal).
iii. Whether having regards to the right to fair hearing enshrined in the 1999 Constitution, the Court Below was duty bound to afford the parties herein the opportunity to address it on issues not specifically raised by any party before its decision thereon. (Distilled from grounds 4 & 5 of the Notice of Appeal).
iv. Whether the Court below is not bound by its finding of fact to the
4
effect that only an election tribunal set up pursuant to Section 285(1) of the 1999 Constitution is duly empowered to nullify an election conducted by INEC. (Distilled from ground 6 of the Notice of Appeal).
v. Whether the facts and circumstances of this appeal are on all fours with that as existed in APC V. KARFI (2008) 6 NWLR ((PT.1616) page 479 as to warrant the Court below applying same hook line and sinker to the facts and circumstances of this suit. (Distilled from grounds 3 & 7 of the Notice of Appeal).
The 2nd Respondent did not file any brief of argument but aligned himself with the position of the Appellant.
The 3rd Respondent did not file any brief of argument but remained neutral as to the outcome of the Appeal.
In arguing the first issue, the learned counsel to the Appellant S. Atung Esq., adopted and relied on his brief of argument filed on 9/4/19 as his argument in this appeal in urging us to allow same. It was submitted that a finding of the Court that a suit or claim is statute barred is one that leaves the claimant with no cause of action and extinguishes his right to maintain an action even where the action would
5
have been otherwise meritorious, it extinguishes the jurisdiction of the Court to entertain a suit. See, SHELIM VS. GOBANG (2009) 12 NWLR (PT. 1156) 435 AT PAGE 452, Paragraphs A-G. Also, UNIVERSITY OF ILORIN VS. OLUWADARE (2006) 14 NWLR (PT. 1000) 751 (SC) AT P. 767, Paragraphs E-F and PP. 770-771, Paragraphs A-B; D.E.N.R VS. TRANS INT?L BANK LTD (2008) NWLR (PT. 1119) 388 (SC) AT PP 417 Paragraphs C-G, 427 Paragraphs D-E; and OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508 (SC). It was submitted that in deciding whether the Court has jurisdiction over the subject matter the statement of claim, the Writ of Summons and the particulars of claim where filed along with the Writ of Summons or other Originating Processes must be examined. See, F.R.N. VS. OSHIOMHOLE (2004) 3 NWLR (PT. 531) 29; EGBUONU VS. B.R.T.C (1997) 12 NWLR (PT. 531) 29 and USMAN VS. BABA (2005) NWLR (PT. 917) 113. Also, LAGOS STATE WATER CORPORATION VS. SAKAMORI CONSTRUCTION (NIG.) LTD (2011) 12 NWLR (PT. 162) PAGE 569 AT PAGES 595 Paragraphs D ? E.
The Preliminary Objection touched on the jurisdiction of the trial Court to have entertained the matter. Being a threshold issue the
6
trial Court rightly determined it first. See, ELABANJO VS. DAWODU (2006) 6 JNSC (PT. 22) PAGE 181 AT PAGE 208, Paragraphs C ? H. The present situation was distinguished from the situation where the objection is on the proper parties not being before the Court, in such a situation the trial Court would be obliged to give its opinion on the substantive suit in the event that it is wrong in its finding that there are no proper parties. In the present case, the trial Court?s finding that the suit was statute barred is not the quarrel on the part of the Appellant but, the resolution of the substantive suit after so holding and dismissal of the suit.
In response, the learned counsel to the 1st Respondent Y. D. Dangana Esq., adopted and relied on his brief of argument filed on 24/4/19 in urging us to dismiss the appeal. It was submitted under issue one that a Court of law is allowed to give judgment in the alternative on the assumption that the first position is wrong, it is known in our jurisprudence. It was the contention of the learned counsel that a trial Court is duty bound to pronounce on all issues placed before it also, intermediate Courts
7
which are duty bound to pronounce on the merits of the case before it in the alternative to its declining jurisdiction. See, KATTO VS. C.B.N (1991) 9 NWLR (PT. 214) 126 AT 149 ? 150 Paragraphs G ? A. See also, F & F FARMS (NIG) LTD VS. NNPC (2009) 12 NWLR (PT. 1155) 387 AT 409 Paragraphs D ? E and F.R.N. VS. DAIRO (2015) 6 NWLR (PT. 1454) 141 AT 174 Paragraphs F ? H.
I would utilize the issues as formulated by the Appellant in determination of the appeal. No doubt jurisdiction is the live wire of any action in the Court of law, without which the action would be lifeless. There is no quarrel over the trial Court holding that the suit at the trial Court was statute barred. The Appellant?s grouse is that the trial Court having held that the action was statute barred and dismissed the action ought not to have proceeded to determine a matter adjudged statute barred and dismissed. The determination of the substantive suit was an academic exercise which would not enure any benefit on the successful party. See, UTIH VS. ONOYIVWE (1991) (SUPRA), NDAEYO VS OGUNAYA (1977) 1 SC 11; MISCELLANEOUS OFFENCES TRIBUNAL VS. OKOROAFOR (2001)
8
18 NWLR (PT. 745) 295 AT P. 326-327, H-A and MBAH VS. STATE (2014) LPELR ? 22729 (SC).
In the present case, the Plaintiff?s claim was held to be statute barred pursuant to Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No. 21) Act, 2017 which is akin to a statute of limitation. The date of the accrual of the cause of action was put alongside the date the action was filed for the trial Court to have rightly found that the action filed on 29th of October, 2018 was statute barred considering that the date of accrual of action is 7th October, 2018 when the primary election took place. The trial Court having held the action to be statute barred and dismissing same cannot look into the merits of the suit now stale to determine the merit of the action.
It is the law that where the Court has no jurisdiction to look into the substantive matter, having adjudged same statute barred, the entire proceedings thereafter are a nullity, no matter how well conducted. See, NDAEYO VS. OGUNAYA (1977) 1 SC 11; CHACHAROS VS. EKIMPEX LTD (1988) 1 NWLR (PT. 68) 88; OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508;
9
BAKARE VS. ATTORNEY GENERAL OF THE FEDERATION (1990) 5 NWLR (PT. 152) 516 and JERIC (NIG) LTD VS. UNION BANK OF NIGERIA PLC (2000) 15 NWLR (PT. 691) 447. Where an objection to the jurisdiction of the Court is timeously raised and it is upheld, it saves time and costs and a trial that is a nullity is avoided no matter how well argued or decided upon. Resolving, the issues on the merit after the Court held that it was statute barred and dismissed same, is an exercise in futility. The trial Court had no jurisdiction to have done so. In NASIR VS. CIVIL SERVICE COMMISSION KANO STATE & ORS (2010) LPELR ? 1943 (SC) P. 16, Paragraphs C-D his Lordship Mukhtar JSC (as he then was) simply put the effect of a matter that is statute barred thus:
?Once the action was statute barred there was nothing to build on it.?
See also ASABORO & ANOR VS. PAN OCEAN OIL CORPORATION (NIG) LTD & ANOR (2017) LPELR 41558 (SC) PP 30 ? 31, Paragraph E.
The trial Court having held that the suit was statute barred and dismissed same ought not to have proceeded to determine a stale action. It is an exercise in futility.
10
In the final analysis, based on issue one alone, I hold that the appeal is meritorious, I allow same. The judgment of the trial Court in Suit No. FHC/YL/CS/7/2019 delivered on 6th March, 2019 to the extent of the determination of the substantive suit is hereby set aside.
Parties to bear their respective costs.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
11
Appearances:
S. Atung, Esq.For Appellant(s)
Y. D. Dangana, Esq. with him, Idris M. Talle, Esq. -for 1st Respondent.
Sule Shuaibu, Esq. – for 2nd Respondent.
F. R. Baiyo, Esq. with him, Ishaka Baba, Esq. holding the brief of I. Uzuegbu, Esq. -for 3rd Respondent.For Respondent(s)
Appearances
S. Atung, Esq.For Appellant
AND
Y. D. Dangana, Esq. with him, Idris M. Talle, Esq. -for 1st Respondent.
Sule Shuaibu, Esq. – for 2nd Respondent.
F. R. Baiyo, Esq. with him, Ishaka Baba, Esq. holding the brief of I. Uzuegbu, Esq. -for 3rd Respondent.For Respondent