ABDULRA’UF ABDULKADIR MODIBBO v. SA’ADATU MADAWAKI BELLO & ORS
(2019)LCN/13192(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/51/2019
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.SA’ADATU MADAWAKI BELLO
2.ALL PROGRESSIVE CONGRESS (APC)
3.INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
THE CONSEQUENCE OF AN ACTION BEING STATUTE BARRED
Where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action had lapsed. A Court of law has no jurisdiction to entertain an action that is statute barred. See the unreported decision of the Supreme Court in Toyin V. Peoples Democratic Party & 3 Ors SC. 308/2018 delivered on 18th January, 2019 and Emialor v. Nigeria Army (1999) 12 NWLR (Pt. 179) 158. PER ABIRIYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on the 6th March, 2019 in the Federal High Court (Court below) in the Yola Judicial Division, holden at Yola. In the Court below, the 1st Respondent was the plaintiff. The Appellant was the 2nd Defendant while the 2nd Respondent and the 3rd Respondent were the 1st and 3rd Defendants. The 1st Respondent?s claim in the Court below was consolidated with three other suits viz FHC/YL/CS/5/19, FHC/YL/CS/4/19 and FHC/YL/CS/7/19 all against the same defendants though different plaintiffs.
The 1st Respondent sought for the determination of nine questions. The first question is reproduced immediately hereunder:
Whether the 1st Respondent?s Primary election conducted for Girei/Yola North/Yola South Federal Constituency on the 7th day of October, 2018 is 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 Girei/Yola North/Yola
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South Federal Constituency of Adamawa State.
Upon the determination of the nine questions, the 1st Respondent sought for fourteen reliefs. Relief 1 is reproduced immediately hereunder:
A DECLARATION that the 1st Respondent?s Primary election conducted for Girei/Yola North/Yola South 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 Girei/yola North/Yola South Federal constituency of Adamawa State.
The Court below heard preliminary objections to the originating summons and held that the action was statute barred having been commenced outside the 14 days allowed by Section 285(9) of the 1999 Constitution FRN (as amended). Despite this finding, the Court below nevertheless proceeded to consider the originating summons on the merits.
The Appellant has approached this Court by a notice of appeal dated 7th March, 2019 and filed on 8th March, 2019. The notice of appeal contains
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eight grounds of appeal.
Appellant filed an Appellant?s brief of argument. It is dated 8th April, 2019 and filed 9th April, 2019.
From the eight grounds of appeal, the Appellant presented five issues for determination. Issue 1 is reproduced immediately hereunder:
Whether having found as a fact that the 1st Respondent?s qua Plaintiff?s claim was stale thereby depraving him of the 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 declaration in the selfsame suit. (Ground 1).
The 1st Respondent adopted the five issues submitted for determination by the Appellant.
The 2nd and 3rd Respondents filed no briefs of argument.
Arguing issue 1, learned counsel for the Appellant submitted that a finding that a suit is statute barred is one that leaves the claimant with no cause of action and extinguishes his right to maintain an action even in respect of an otherwise meritorious claim. It is thus a finding which for all intents and purposes also extinguishes the jurisdiction of Court to entertain a suit.
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Jurisdiction, it was submitted, is paramount and crucial. The Court was referred to Shelim V. Gobang (2009) 12 NWLR (Pt. 1156) 435 at 452; Madukolu v. Nkemdilim (1962) 2 SC NLR 341; University of Ilorin V. Oluwadare (2006) 14 NWLR (Pt. 1000) 751; D.E.N.R. Ltd V. Trans Int?l Bank Ltd (2008) NWLR (Pt. 119) 388 SC and Oloba V. Akereja (1988) 3 NWLR (Pt. 84) 508.
Learned counsel for the Appellant submitted that in determining whether a Court has jurisdiction, it is the claim before the Court that the Court should turn to. The Court was referred to F.G.N V. Oshiomhole (2004) 3 NWLR (Pt. 531) 29; Egbuonu V. B.R.T.C. (1997) 12 NWLR (Pt. 531) 29; Usman V. Baba (2005) NWLR (Pt.917) 113 and Lagos State Water Corp. V. Sakamori Const. (Nig.) Ltd (2011) 12 NWLR (Pt. 162) 569 at 595.
The Appellant?s preliminary Objection, it was pointed out that the 1st Respondent?s claim was statute barred pursuant to Section 285(9) and (14) of the 1999 Constitution FRN (as amended) and the Court below found that the suit, was statute barred and dismissed it.
The Court, it was submitted, cannot look into the merit of the suit once it is found to be statute barred.
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Learned counsel for the 1st respondent submitted that the Court below was right when it proceeded to consider the matter on the merits even though it had found that it was statute barred.
It was submitted that a trial or intermediate Court must pronounce on all issues placed before it. The Court was referred to Katto V. C.B.N. (1991) 9 NWLR (Pt. 214) 126 at 149-150, F & F Farms (Nig.) Ltd V. NNPC (2009) 12 NWLR (Pt. 1155) 387 at 409 and FRN V. Dairo (2015) 6 NWLR (Pt. 1454) 14 at 174.
The 2nd Respondent did not file any brief. Learned counsel for the 2nd Respondent said the 2nd Respondent filed no brief because he aligned with the Appellant. He urged the Court to allow the appeal.
The 3rd respondent did not file any brief. Learned counsel for the 3rd respondent said the 3rd Respondent filed no brief because it is neutral.
Where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action had lapsed. A Court of law has no jurisdiction to
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entertain an action that is statute barred. See the unreported decision of the Supreme Court in Toyin V. Peoples Democratic Party & 3 Ors SC. 308/2018 delivered on 18th January, 2019 and Emialor v. Nigeria Army (1999) 12 NWLR (Pt. 179) 158.
In the instant matter, the Court below held that the action and three others with which it was consolidated were statute barred. See page 392 of the record. It however proceeded to consider the substantive actions.
With due respect to the Court below, it had no jurisdiction to proceed with the substantive action in this matter having found that the action was caught by the provision of Section 285 (9) of the 1999 Constitution FRN (as amended).
Issue 1 is therefore resolved in favour of the Appellant and against the 1st Respondent.
From the result of the resolution of issue 1, it will be a futile exercise considering remaining issues in the appeal.
This appeal succeeds on issue 1 alone. The appeal is allowed.
The judgment of the Court below, in the substantive matter delivered on 6th February, 2019 in Suit No. FHC/YL/CS/6/2019 is hereby struck out.
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The originating summons and proceedings in Suit No. FHC/YL/CS/6/2019 commenced outside the time allowed by the Constitution are hereby struck out.
Parties shall bear their respective costs of the appeal.
CHIDI NWAOMA UWA, J.C.A.: I agree.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
Samuel Atung, Esq.
For Appellant(s)
Y.D. Dangana, Esq. with him Idris Musa Talle, Esq. for the 1st Respondent.
Sule Shu’aibu, Esq. for the 2nd Respondent.
F. R. Baiyo, Esq. holding the brief of I. E. Uzuegbu, Esq. for the 3rd Respondent
For Respondent(s)
Appearances
Samuel Atung, Esq.For Appellant
AND
Y.D. Dangana, Esq. with him Idris Musa Talle, Esq. for the 1st Respondent.
Sule Shu’aibu, Esq. for the 2nd Respondent.
F. R. Baiyo, Esq. holding the brief of I. E. Uzuegbu, Esq. for the 3rd RespondentFor Respondent
