ABDULRAUF ABDULKADIR MODIBBO v. SALIHU MOHAMMED & ORS
(2019)LCN/13194(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/47/19
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. SALIHU MOHAMMED
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
WHETHER OR NOT WHERE A COURT LACKS JURISDICTION TO DETERMINE A MATTER, EVERYTHING DONE IN WANT OF JURISDICTION IS A NULLITY
Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity. The issue of jurisdiction is fundamental as it is the lifeline of any suit.
The law is that in order to determine whether a Court has jurisdiction or not over the subject matter, the Statement of Claim and the Writ of Summons or other Originating Processes would be examined. PER UWA, J.C.A.
THE ESSENCE OF A PRELIMINARY OBJECTION IN AN APPEAL
The essence of the challenge by way of Preliminary Objection is to foreclose the determination of the appeal, it is therefore best to resolve it first to save valuable time, which the trial court did. See, YARO VS. AREWA CONSTRUCTION & ORS (2007) LPELR ? 3516 (SC), OKAFOR VS. NWUDE (1999) 7 S.C. (PT. 1) 106, PETROJESSICA ENTERPRISES LTD & ANOR VS. LEVENTIS TECHNICAL CO. LTD (1992) LPELR ? 2915 (SC) PP. 23 ? 24, Paragraphs E ? C. PER UWA, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION OF A COURT
?The question is: was the trial Court clothed with jurisdiction to have determined the substantive suit after holding that the suit was statute barred and dismissed same? The issue of jurisdiction of a Court to entertain a matter is so fundamental that any proceeding conducted without it is a nullity and liable to be set aside, no matter how well conducted. See, MADUKOLU VS. NKEMDILIM (1962) 2 SCLR 341; (1962) 2 ALL NLR 587 AT 594; SKENCONSULT (NIG). LTD VS. UKEY (1981) 1 S.C. 6 AT 52; INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 427 AT 588, F. The futility of proceedings conducted without jurisdiction has made room for it to be raised at any stage of the proceedings, in any manner and even for the first time on appeal before the apex court. See, NDUUL VS. WAYO & ORS (2018) LPELR ? 45151 (SC) PP. 29 ? 30, Paragraphs E-D, and MARTINS VS. NICANNAR FOOD CO. LTD & ANOR (1988) LPELR ? 1844 (SC). PER UWA, J.C.A.
WHETHER OR NOT A COURT CAN DETERMINE A SUBSTANTIVE SUIT WHERE IT UPHOLDS THE OBJECTION TO JURISDICTION
In RALPH UWAZURUIKE VS. ATTORNEY GENERAL OF THE FEDERAL (2007) 8 NWLR (PT. 1035) 1 the Supreme Court in respect of a preliminary objection to an appeal held thus: Where a preliminary objection to an appeal succeeds there would be no need to go further to consider the arguments in support of issues for determination. See, CHIEF BRIGHT ONYEMEH & ORS VS. LAMBERT EGBUCHULAM & ORS (1966) 5 NWLR (PT. 448) 255 AT 268; (1996) 4 SCNJ 237; NEPA VS ANGO (2001) 15 NWLR (PT. 737) 627 AT 645-646; ANPP VS RETURNING OFFICER ABIA SOUTH SENATORIAL DISTRICT; MR. FESTUS UKAGWU & 2 ORS (2005) 6 NWLR (PT. 920) 140 AT 170-170; ATTORNEY GENERAL OF THE FEDERATION VS. ANPP & ORS (2003) 12 SCNJ 67 AT 81-82; (2003) 18 NWLR (PT. 851) 182.?
(underlined mine for emphasis)
Also, the Supreme Court in UDENWA & ANOR VS.UZODINMA & ANOR (2013) 5 NWLR (PT. 1346) 94. held thus: ?Preliminary objection in a case is an objection, if upheld would render further proceedings before the Court impossible or unnecessary. An objection to the Court?s jurisdiction is an example of a preliminary objection….
The purpose of this is to bring the appeal to an end having been discovered to be incompetent and or fundamentally defective. It will therefore be unnecessary to continue with an appeal once an objection is raised without disposing of same.?
The situation is the same with the trial Court. The settled position of the law is that jurisdiction is the livewire for any adjudication and where the Court lacks jurisdiction to entertain a matter, in this case for being statute barred, it would lack the jurisdiction to proceed to make any pronouncement therein as was done by the trial Court in the present case. See, ELABANJO VS. DAWODU (SUPRA). 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 on the 6th day of March, 2019 by A. M. Anka, J. in Suit No. FHC/YL/CS/4/19.
The 1st Respondent by an Originating Summons filed on the 29th day of October, 2018 claimed against the Appellant amongst other reliefs sought for a declaration that the 2nd 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 2nd Respondent herein submitting the name of the Appellant herein 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, the following suits 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 on the 8th day of February, 2019 along with the Preliminary Objections filed on 22nd January, 2019 by the 2nd Respondent herein (1st
1
Respondent in the lower Court) and the preliminary objection of the Appellant herein (2nd Respondent in the lower Court) filed on the 19th day of December, 2018.
In its judgment, the trial Court upheld the preliminary objections both predicated on the fact that the 1st Respondent?s suit was stale in that it was instituted 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). After upholding the preliminary objections the trial Court dismissed the suit and subsequently went ahead to consider the substantive suit and made far reaching declarations thus this appeal. It is against the resolution of the substantive suit that the Appellant filed his Notice of Appeal on 7th day of March, 2019 from which the following issues were formulated for determination thus:
(i) ?Whether having found as a fact that the 1st Respondent?s qua Plaintiff?s claim was stale thereby depriving 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
2
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 (2018) 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.? (Ground 3 and 7).
?The 1st Respondent on his part distilled the following issues for the determination of the appeal thus:
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i. ?Whether having found as a fact that the 1st Respondent?s qua Plaintiff?s claim was stale thereby depriving 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
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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 (2018) 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 learned counsel to the 2nd Respondent did not file any brief of argument but urged that the appeal be allowed.
The learned counsel to the 3rd Respondent did not file any brief of argument and had nothing to urge the Court.
In arguing the appeal, 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 arguing his first issue, it was submitted that a suit that is statute barred leaves the claimant with no cause of action and extinguishes his right to maintain an action even in an otherwise meritorious claim, it extinguishes the jurisdiction of a Court to entertain a suit. See, SHELIM VS. GOBANG (2009) 12 NWLR (PT. 1156) 435, UTIH VS. ONOYIVWE (1991) 1 NWLR (PT. 166) AT P.206,
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Paragraphs A ? B, UNIVERSITY OF ILORIN VS. OLUWADARE (2006) 14 NWLR (PT. 1000) 751 (SC) AT P. 767 Paragraphs E ? F and PP 770 ? 771, Paragraphs G ? B; D. E. N. R. LTD VS. TRANS INT?L BANK LTD (2008) NWLR (PT. 1115) 388 (SC) AT PP. 417 Paragraphs C ? G, 427 Paragraphs D ? G, & 435 Paragraphs D ? E; and OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508 (SC). It was submitted that in determining whether a Court has jurisdiction, it is the claim and the reliefs sought by the plaintiff that have to be examined. The Statement of Claim, the Writ of Summons and the particulars of claim where one is filed along with the Writ of Summons or other Originating Processes. See, F. G. N. VS. OSHIOMHOLE (2004) 3 NWLR (PT. 531) 29 AT RATIO 2; EGBUONU VS. B.R.T.C (1997) 12 NWLR (PT. 531) 29 AT RATIO 3; USMAN VS. BABA (2005) NWLR (PT. 917) 113 AT RATIO 5. Also, LAGOS STATE WATER CORPORATION VS. SAKAMORI CONSTRUCTION (NIG.) LTD (2011) 12 NWLR (PT. 162) PAGE 569 AT PAGES 595 Paragraphs D ? E.
Further, that the Preliminary Objection was predicated on the fact that the 1st Respondent?s claim was stale pursuant to Section
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285(9) and (14) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No. 21) Act, 2017. It was submitted that the parties agreed that the above provision is akin to a statute of limitation, the trial Court was therefore right to have held that from the accrual of the cause of action and the date, the suit was filed, the action was statute barred. See, ELABANJO VS. DAWODU (2006) 6 JNSC (PT. 22) PAGE 181 AT PAGE 208, Paragraphs C?H. It was concluded that where a Court lacks jurisdiction to entertain a matter, it would lack the vires to proceed further to make any pronouncement therein. The present situation was distinguished from other aspects of Preliminary Objection for instance as to whether the proper parties are before the Court, in such a case the Court could proceed to determine the merits of the suit should the Court be wrong in its decision over the parties before the Court. It was submitted that the trial Court ought not to have proceeded to determine the substantive suit having found that the action was statute barred.
?
On the part of the 1st Respondent, the learned counsel, Y. D. Dangana Esq., adopted and relied
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on his brief of argument filed on 24/4/19 as his argument in the appeal in urging us to dismiss the appeal and affirm the judgment of the trial Court. It was submitted that a Court of Law is allowed to give judgment in the alternative on the assumption that the first position might be wrong. It was contended that alternative judgment is known to our jurisprudence. It was contended that an appellate Court is duty bound to pronounce on all the issues placed before it. Further, that a trial or intermediate Court must 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. The trial Court was said to be right to have proceeded to consider the suit in the alternative. 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. On the first issue, it is trite that a finding that a suit or claim is statute barred is one that leaves the claimant with
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no cause of action and extinguishes his right to maintain an action in respect of an otherwise meritorious claim. It is a finding that extinguishes the jurisdiction of a Court to entertain a suit. There is no argument in this case challenging the holding of the trial Court that the matter before the lower Court was filed outside 14 days contrary to the provisions of Section 285(9) and (14) of the Constitution of the Federal Republic of Nigeria 1999, as amended concerning pre-election matters. The Appellant?s grouse is that after the learned trial Judge held that the suit was statute barred and dismissed the suit, the Court ought not to have proceeded to determine the merits of the suit, same was argued to be a nullity. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity. The issue of jurisdiction is fundamental as it is the lifeline of any suit.
The law is that in order to determine whether a Court has jurisdiction or not over the subject matter, the Statement of Claim and the Writ of Summons or other Originating Processes would be examined. The Appellant?s Preliminary
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Objection was predicated on the fact that the 1st Respondent?s (Plaintiff) claim was stale pursuant to Section 285(9) and (14) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No. 21) Act, 2017, hereafter referred to as the Constitution. The parties are agreed that the effect or purpose of the above provision is akin to a statute of limitation, the reason why the trial Court rightly examined the date of the accrual of the cause of action alongside the date the suit was filed and had no difficulty in holding that the suit is statute barred and accordingly dismissed same. The learned trial Judge promptly and rightly considered the preliminary objection first. The reason being that where it is sustained, that ends the matter and there would be no need to consider the merits of the substantive suit. See, ALL PROGRESSIVE CONGRESS VS. IBRAHIM UMAR & ORS (2019) LPELR ? 47296 (SC) P. 7, Paragraphs A ? D. The essence of the challenge by way of Preliminary Objection is to foreclose the determination of the appeal, it is therefore best to resolve it first to save valuable time, which the trial court did. See, YARO VS.
10
AREWA CONSTRUCTION & ORS (2007) LPELR ? 3516 (SC), OKAFOR VS. NWUDE (1999) 7 S.C. (PT. 1) 106, PETROJESSICA ENTERPRISES LTD & ANOR VS. LEVENTIS TECHNICAL CO. LTD (1992) LPELR ? 2915 (SC) PP. 23 ? 24, Paragraphs E ? C.
?The question is: was the trial Court clothed with jurisdiction to have determined the substantive suit after holding that the suit was statute barred and dismissed same? The issue of jurisdiction of a Court to entertain a matter is so fundamental that any proceeding conducted without it is a nullity and liable to be set aside, no matter how well conducted. See, MADUKOLU VS. NKEMDILIM (1962) 2 SCLR 341; (1962) 2 ALL NLR 587 AT 594; SKENCONSULT (NIG). LTD VS. UKEY (1981) 1 S.C. 6 AT 52; INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 427 AT 588, F. The futility of proceedings conducted without jurisdiction has made room for it to be raised at any stage of the proceedings, in any manner and even for the first time on appeal before the apex court. See, NDUUL VS. WAYO & ORS (2018) LPELR ? 45151 (SC) PP. 29 ? 30, Paragraphs E-D, and MARTINS VS. NICANNAR FOOD CO. LTD & ANOR (1988) LPELR ? 1844 (SC).
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In the present appeal, the learned trial judge sustained the preliminary objection and dismissed the suit for being statute barred. The quarrel now is the trial Court proceeding to determine the merits of the issues for determination. In RALPH UWAZURUIKE VS. ATTORNEY GENERAL OF THE FEDERAL (2007) 8 NWLR (PT. 1035) 1 the Supreme Court in respect of a preliminary objection to an appeal held thus:
?Where a preliminary objection to an appeal succeeds there would be no need to go further to consider the arguments in support of issues for determination. See, CHIEF BRIGHT ONYEMEH & ORS VS. LAMBERT EGBUCHULAM & ORS (1966) 5 NWLR (PT. 448) 255 AT 268; (1996) 4 SCNJ 237; NEPA VS ANGO (2001) 15 NWLR (PT. 737) 627 AT 645-646; ANPP VS RETURNING OFFICER ABIA SOUTH SENATORIAL DISTRICT; MR. FESTUS UKAGWU & 2 ORS (2005) 6 NWLR (PT. 920) 140 AT 170-170; ATTORNEY GENERAL OF THE FEDERATION VS. ANPP & ORS (2003) 12 SCNJ 67 AT 81-82; (2003) 18 NWLR (PT. 851) 182.?
(underlined mine for emphasis)
Also, the Supreme Court in UDENWA & ANOR VS.UZODINMA & ANOR (2013) 5 NWLR (PT. 1346) 94. held thus:
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?Preliminary objection in a case is an objection, if upheld would render further proceedings before the Court impossible or unnecessary. An objection to the Court?s jurisdiction is an example of a preliminary objection….
The purpose of this is to bring the appeal to an end having been discovered to be incompetent and or fundamentally defective. It will therefore be unnecessary to continue with an appeal once an objection is raised without disposing of same.?
The situation is the same with the trial Court. The settled position of the law is that jurisdiction is the livewire for any adjudication and where the Court lacks jurisdiction to entertain a matter, in this case for being statute barred, it would lack the jurisdiction to proceed to make any pronouncement therein as was done by the trial Court in the present case. See, ELABANJO VS. DAWODU (SUPRA). The case is different where for instance there is an objection that the proper parties were not before the Court, the trial Court may give its opinion on the substantive matter in the
13
event that it is wrong in its finding that the proper parties were not before the Court. In the present appeal where the trial Court sustained the objection that the case was statute barred, went ahead to dismiss same, there was nothing left to be determined. I hold that the trial Court was wrong to have determined the substantive suit.
In sum, the appeal succeeds and is hereby allowed. The judgment of the trial Court in Suit No. FHC/YL/CS/4/2019 in respect of the determination of the substantive matter on the merits 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.
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Appearances:
S. Atung, Esq. with him, Okechukwu Edeze, Esq., Efut Okoi, Esq., Hamidu M. Tukur, Esq., Mahmud Ahmed, Esq. and Ifeoma Johnson, Esq.For Appellant(s)
Y. D. Dangana, Esq. with him, Idris M. Talle, Esq. – for 1st Respondent.
Sule Shu?aibu, Esq. – for 2nd Respondent.
F.R. Baiyo, Esq. holding the brief of I. E. Uzuegbu Esq. with him, Ishaka Baba, Esq. – for 3rd RespondentFor Respondent(s)
Appearances
S. Atung, Esq. with him, Okechukwu Edeze, Esq., Efut Okoi, Esq., Hamidu M. Tukur, Esq., Mahmud Ahmed, Esq. and Ifeoma Johnson, Esq.For Appellant
AND
Y. D. Dangana, Esq. with him, Idris M. Talle, Esq. – for 1st Respondent.
Sule Shu’aibu, Esq. – for 2nd Respondent.
F.R. Baiyo, Esq. holding the brief of I. E. Uzuegbu Esq. with him, Ishaka Baba, Esq. – for 3rd RespondentFor Respondent
