ABDULRA’UF ABDULKADIR MODIBBO v. HON. ABUBAKAR LAWAL GARBA & ORS
(2019)LCN/13191(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/49/2019
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
ABDULRA’UF ABDULKADIR MODIBBO Appellant(s)
AND
1. HON. ABUBAKAR LAWAL GARBA
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
RATIO
WHETHER OR NOT A PARTY HAS A RIGHT OF ACTION WHEN THE CAUSE OF ACTION IS STATUTE BARRED
When an action is Statute Barred, a party 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. See EMIALOR V. NIGERIAN ARMY (1999) 12 NWLR (Part 179) 258. As the originating summons was commenced outside the time allowed by the Constitution, the lower Court was right in dismissing the suit based on the preliminary objections. The lower Court having upheld the preliminary objections was wrong to have proceeded to determine the substantive suit. See TOYIN V. PEOPLES DEMOCRATIC PARTY & 30 ORS SC/308/2018 delivered on 18th January, 2018. PER BAYERO, J.C.A.
BDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal germinated from the Judgment of the Federal High Court, Yola Division delivered by A. M. Anka J on 6th March, 2019. Following the release of time table for political activities by the 3rd Respondent, the 2nd Respondent organized primary election on 7th October, 2018 for the seat of House of Representatives for Yola North/Yola South/Girei Federal Constituency. Following the declaration of the 1st Respondent as the winner and dissatisfied with the conduct of the primaries and the declaration of the 1st Respondent as the winner, the Appellant by way of an Originating Summons filed a Suit on 29th October, 2018 before the lower court for:-
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) and (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
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South/Girei Federal Constituency of Adamawa State.
2. A DECLARATION that in view of the Provisions of Section 87 of the Electoral Act, 2010 (as amended) and having regards to the provisions of Article 20 of the Constitution of the All Progressives Congress (2014 as amended) and the 1st Respondent?s Guidelines for Nomination of candidates for 2019 General Elections, the indirect Primary election conducted for Yola North/Yola South/Girei Federal Constituency; it is unlawful for the 1st Respondent to have recognized and forwarded the name of the 2nd Respondent to the 3rd Respondent as its candidate for the forthcoming 2019 general election into Yola North/Yola South/Girei Federal Constituency of Adamawa State.
3. A DECLARATION that in view of the provisions of Section 87 of the Electoral Act, 2010 (as amended) and having regards to the provisions of Article 20 of the Constitution of the All Progressives Congress (2014 as amended); the 1st Respondent?s Guidelines for Nomination of Candidates for 2019 General Elections and the Report of the 1st Respondent?s Election Committee for Adamawa State Primary election held from 7th October, 2018;
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there is No conclusive primary election capable of producing a candidate to represent the 1st Respondent in the 2019 general election into Yola North/Yola South/Girei Federal Constituency of Adamawa State.
4. A DECLARATION that in view of the combined provisions of Sections 38, 87 of the Electoral Act, 2010 (as amended), Article 20 of the Constitution of the All Progressives Congress (2014 as amended) and the 1st Respondent?s Guidelines for Nomination of Candidates for 2019 General Elections; there is no valid nomination of Candidate by the 1st Respondent for election into Yola North/Yola South/Girei Federal Constituency of Adamawa State.
5. A DECLARATION that in view of the combined provisions of Sections 38 and 87 of the Electoral Act, 2010 (as amended), the 3rd Respondent is bound to extend the time for nomination candidate by the 1st Respondent for election in to Yola North/Yola South/Girei Federal Constituency of Adamawa State in the absence of a valid nomination.
6. A DECLARATION that the non-conduct, non-completion and suspension of the primary election in Yola North Local Government Area of the Yola North/Yola South/Girei Federal
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Constituency of Adamawa State by the Election Committee of the 1st Respondent for Adamawa State on the 7th day of October, 2018 and the nomination of the 2nd Respondent by the National Working Committee (NWC) of the 1st Respondent sitting in Abuja; is a violent and flagrant violation of the right of the Plaintiff to be voted for by Members of the 1st Respondent in Yola North Local Government Area of the Federal Constituency.
7. A DECLARATION that the participation of the 2nd Respondent in the 2019 General Election for Yola North/Yola South/Girei Federal Constituency of Adamawa State based on the Report of the Election Committee of the 1st Respondent on Primary election conducted in the said Federal Constituency and based on the acceptance of the Election Committee?s Report/Recommendation by the duo of the National Working Committee (NWC) of the 1st Respondent sitting in Abuja is unlawful, illegal, null, void and of no legal effect.
8. A DECLARATION that the non-consideration of the Petition/Complaint of the Plaintiff on the conduct of the primaries for Yola North, Yola South, Girei Federal Constituency dated the 9th day of October, 2018 and
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received by the National Chairman of the 1st Respondent on the same date for the Appeal Panel on the Primaries Election and the affirmation of the Appeal Panel?s decision made on the 17th October, 2018 by the National Working Committee (NWC) of the 1st Respondent sitting in Abuja is a breach of the fundamental right of the plaintiff to fair hearing.
9. A DECLARATION that the 1st Respondent is in view of the provisions of Section 87 of the Electoral Act, 2010 (as amended), the preamble to its Constitution, Article 7 (viii) and (ix) and Article 20 of its Constitution, it?s Guidelines for Nomination of Candidates for 2019 General Elections duty bound to ensure that all Aspirants are given equal opportunities of being voted for by Delegates of the Party and to ensure that Primary elections conducted by it are democratically conducted in order to ensure internal democracy within the Party.
10. AN ORDER of this Honourable Court setting aside the nomination of the 2nd Respondent as the Candidate of the 1st Respondent having being based/and or anchored on the Report/Recommendation of the Election Committee of the 1st Respondent submitted to the 1st
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Respondent and as affirmed by the Appeal Panel on the 17th October, 2018, the National Working Committee of the 1st Respondent respectively.
11. AN ORDER DIRECTING the 1st Respondent to re-conduct nomination processes by conducting election in Yola North Local Government Area of the Yola North/Yola South/Girei Federal Constituency of Adamawa State.
12. AN ORDER DIRECTING the 3rd Respondent to exercise its power of extension of time for nomination, the nomination of the 2nd Respondent by the 1st Respondent having not being validly made to the 3rd Respondent and for being a result of an inconclusive primary election.
13. AN ORDER RESTRAINING the 3rd Respondent from recognizing or dealing with the 2nd Respondent as the Candidate of the 1st Respondent in the election into the seat of Yola North/Yola South/Girei Federal Constituency or issuing any form of certificate or recognition by whatsoever name called or printing the name of the 2nd Respondent on the Ballot papers, arising from any such inconclusive primary election as conducted contrary to the 1st Respondent?s Guidelines for nomination of Candidates for 2019 General Election.
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At the trial and pursuant to a Motion on Notice dated 27th November, 2018, this Suit was consolidated with Suits Nos. FHC/YL/CS/4/2019, FHC/YL/CS/6/2019 and FHC/YL/CS/7/2019. The Originating Summons herein was heard on the 8th day of February, 2019 along with the Preliminary Objections dated 14th January, 2019 filed on the 22nd January, 2019 by Learned Counsel to the 2nd Respondent herein qua 1st Respondent at the Court below and the Preliminary objection of the Appellant herein qua 2nd Respondent at the Court below dated 18th December, 2018 and filed on the 19th day of December, 2018.
The Court below delivered its judgment on the 6th day of March, 2019 wherein, it upheld the Preliminary Objections aforesaid which were all predicated on the fact 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.
Having upheld the Preliminary Objections aforesaid and in consequence whereof, the Court below dismissed the suit. The trial Court subsequently went ahead to consider the
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substantive suit, at the end of which the trial judge delivered a judgment. It is against the judgment of the trial Court in the substantive suit as aforesaid that the Appellant herein lodged an Appeal to this Honourable Court pursuant to a Notice of Appeal filed on the 7th day of March, 2019. The Appellant?s Brief of Argument was filed on 10th April, 2019, while the 1st Respondent?s Brief was filed on 24th April, 2019. In the Appellant?s Brief six issues were formulated for determination thus:-
1. Whether the learned trial judge had jurisdiction to entertain and determine the questions as contained in the Originating Summons of the 1st Respondent having held that the 1st Respondent?s Originating Summons was statute barred, pursuant to Section 285(9) of the 4th Alteration to the 1999 Constitution of the Federal Republic of Nigeria (as amended). (Distilled from Ground 1)
2. Whether the learned trial judge was right in upholding the case of the 1st Respondent after having found that the 1st Respondent was inconsistent in stating his case. (Distilled from Ground 2).
3. Whether the learned trial judge can validly raise issues
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suo moto and decided on same without hearing from counsel to the parties. (Distilled from Ground 4).
4. Whether in view of the provisions of Section 285(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the trial Court had jurisdiction to nullify the return of the Appellant as the winner of the House of Representatives Election for Yola North/Yola South/Girei Constituency of Adamawa State which was conducted on the 29th of February, 2019. (Distilled from Ground 6)
5. Whether the learned trial judge was not wrong when he relied on the case of APC Vs. Konfi (2018) 6 NWLR (Pt. 1616) Pg. 479 in deciding the instant case of Appeal when the case of the 1st Respondent was against the action of the National Working Committee of the 2nd Respondent. (Distilled from Grounds 3 and 7).
6. Whether a fact not contravened in an Affidavit is not deemed admitted by an opposing party and if so, whether such fact needs further proof. (Distilled from Ground 8).
The first Respondent submitted five issues for determination:-
i. Whether having found as a fact that the 1st Respondent?s qua Plaintiff?s claim was stale thereby
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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 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)
?
Issues 1 of both Appellant and the 1st Respondent are similar. Arguing issue
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one, learned Appellants Counsel submitted that the trial Court having pronounced that the case of the 1st Respondent was statute barred should not have gone further to determine the substantive suit. The Court was referred to NASIR V CIVIL SERVICE COMMISSION KANO STATE & ORS (2010) LPELR ? 1943 (SC).
Learned counsel to the 1st Respondent submitted on issue one that the Court below is allowed to give judgment in the alternative on the assumption that the first position is wrong.
DETERMINATION OF THE APPEAL
A careful look at the affidavit in support of the Originating Summons filed on the 29th of October, 2018 before the lower Court clearly shows that the sets of facts that entitled the 1st Respondent to this action are contained in Paragraphs 19, 20 and 23 which deal with the primary election held on 7th October, 2018. Paragraph 19 reads:-
?Further to paragraph 18 above and to my utter dismay, in the 8th of October, 2018, I saw the name of the 2nd Respondent going viral on the social media as the winner of the primary election and the said 2nd Respondent was actually parading himself as the winner of the election while the
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summary result sheet of 7th October, 2018 declared the election inconclusive and no winner returned.” Paragraph 20 reads:-
?Whilst I was still wondering how and where the 2nd Defendant has gotten the outcome of the election to have declared himself the winner of the election contrary to the contents of Exhibit LAG4 above, I got a copy of the report of the Election Committee for Adamawa State titled ? REPORT ON ADAMAWA STATE PRIMARY ELECTION HELD FROM 5TH TO 7TH OCTOBER, 2018? jointly signed by the Chairman and Secretary of the Election Committee for Adamawa State and same report is hereby attached and marked as Exhibit LAG5.” Paragraph 23 reads:-
?That before I became aware of the contents of Exhibit LAG5, I have seen the 2nd Respondent parading himself as the winner of the primary election, I forwarded my complaint to the Chairman of the 1st Respondent and the Appeal Panel on Primary Elections, APC National Secretariat, Federal Capital Territory, Abuja for consideration. The said Petition against the conduct of the primary election dated 9th October, 2018 is hereby attached and marked as Exhibit LAG6.?
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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 held on 7th October, 2018. That was the date when the cause of action originated. See FADARE V. ATTORNEY-GENERAL OYO STATE (1982) 4 S.C. 1. From the 7th October, 2018 when the primary election was held to 29th October, 2018 when the 1st Respondent filed the action at the Federal High Court Yola Division is more than 14 days allowed by Section 285 (9) of the Constitution.
The trial Court was therefore right when it rightly held at Pages 385 to 386 that:-
?From the circumstances of the preliminary objections filed by the Respondent?s Counsel, my take is that the action having been affected by the Provisions of Section 285 (9) of the 1999 Constitution 4th Alteration Act 2017, the latest virus now generally affecting the adjudicatory lifeblood of pre-election matters in the form of statutory limitation is Statute Barred and I so hold, the circumstance which will lead to the inevitable conclusion of waiver of right, the action therefore stands dismissed.”
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When an action is Statute Barred, a party 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. See EMIALOR V. NIGERIAN ARMY (1999) 12 NWLR (Part 179) 258. As the originating summons was commenced outside the time allowed by the Constitution, the lower Court was right in dismissing the suit based on the preliminary objections. The lower Court having upheld the preliminary objections was wrong to have proceeded to determine the substantive suit. See TOYIN V. PEOPLES DEMOCRATIC PARTY & 30 ORS SC/308/2018 delivered on 18th January, 2018.
Having upheld the ruling of the trial Court dismissing the suit, there is no basis for considering the remaining issues in the main Appeal. The originating summons and proceedings in Suit No. FHC/YL/CS/5/2019 is hereby set aside. Parties should bear their costs.
CHIDI NWAOMA UWA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
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Appearances:
S. Atung, Esq. with him, Okechukwu Edeze, Esq., Efut Okoi, Esq., Hameed Tukur, Esq., Mahmud Ahmad, Esq. and Ifeoma Johnson, Esq.For Appellant(s)
Y.D. Dangana, Esq. with him, Idris I. Talle, Esq. for the 1st Respondent.
Sule Shu’aibu, Esq. for the 2nd Respondent.
Ishaka Bala, Esq. for the 3rd Respondent
For Respondent(s)
Appearances
S. Atung, Esq. with him, Okechukwu Edeze, Esq., Efut Okoi, Esq., Hameed Tukur, Esq., Mahmud Ahmad, Esq. and Ifeoma Johnson, Esq.For Appellant
AND
Y.D. Dangana, Esq. with him, Idris I. Talle, Esq. for the 1st Respondent.
Sule Shu’aibu, Esq. for the 2nd Respondent.
Ishaka Bala, Esq. for the 3rd RespondentFor Respondent
