ABUBAKAR BABAZANGO v. ABDULRAUF ABDULKADIR MODIBBO & ORS
(2019)LCN/13196(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/61/19
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
ABUBAKAR BABAZANGO Appellant(s)
AND
1. ABDULRAUF ABDULKADIR MODIBBO
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
WHEN A CAUSE OF ACTION IS SAID TO BE STATUTE-BARRED
A cause of action is said to be statute barred if the proceedings were brought outside the period laid down by the limitation law or Act. To determine the period of limitation one would examine the Writ of Summons and Statement of Claim alleging when the wrong was committed which gave the Plaintiff the cause of action, that date would be compared with the date on which the Writ of Summons was filed. If the time on the Writ is beyond the period allowed by the limitation law, the action is statute barred. The objection at the trial Court was in view of the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, as amended. It provides as follows:
?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.?
(Underline mine for emphasis).
?I will hereunder reproduce the Cross Appellant?s relief 1 (one) sought at the lower Court thus:
?A DECLARATION that the 1st Respondent?s Primary Election conducted for Girei/Yola North/ Yola South Federal Constituency on the 7th October, 2018 is NOT incompliance 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. 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 sitting in Yola, delivered on the 6th day of March, 2019 presided over by A. M. Anka, J. The appeal is a Cross appeal emanating from Suit No. FHC/YL/CS/7/2019 and Appeal No. CA/YL/63/19.
The background facts are that following the release of the time table for political activities by the 3rd Respondent in preparation for the 2019 General Elections, the 2nd Cross Respondent organized a primary election for the selection of its flag bearer for the seat of House of Representative for Yola North/Yola South/Girei Federal Constituency on the 7th day of October, 2018.
?The Cross Appellant adjudged the said primaries inconclusive and was unable to produce a candidate. The Cross Appellant with other aspirants caused a complaint to be written on the primary election which appeal was not heard and determined by the said appeal committee. On the 17th October, 2018 the National Working Committee of the party (APC) thereafter nominated the 1st Cross Respondent Abdulrauf Abdulkadir Modibbo as its flag bearer for the seat of
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House of Representative for Yola North/ Yola South/Girei Federal Constituency in the 2019 General Elections. It was alleged that the provisions of the Electoral Act, and the APC?s Guidelines for the conduct of primary election amongst others were breached. The Cross Appellant was aggrieved by the decision of the National Working Committee, filed an Originating Summons before the Federal High Court. Objections were taken as to the competency of the suit being a pre-election matter vis–vis the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999, 4th Alteration Act. The trial court held that the action was filed outside the prescribed time frame and dismissed the suit.
The Cross Appellant was aggrieved by the judgment of the trial Court, thus this appeal. The Cross Appellant distilled two (2) issues for the determination of the appeal thus:
i. ?Whether having regard to the facts and circumstances of this case, most especially the inconclusive nature of the primaries election of the 2nd Cross-Respondent for Yola North/ Yola South/Girei Federal Constituency held on the 7th October, 2018, the
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learned trial Judge did not err when he held that the suit instituted by the Cross-Appellant herein was statute barred and consequently struck out same. (Distilled from grounds 1 and 2 of the Notice of Appeal).
ii. Whether taking into consideration the provisions of Section 87(9) of the Electoral Act (2010) and the fact that no candidate emerged for the Yola North/ Yola South/Girei Federal Constituency as at 7th October 2018, the trial Judge did not err when in applying Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 restricted himself only to the event of 7th October, 2018.? (Distilled from ground 3 of the Notice of Appeal).
The 1st Cross Respondent distilled a sole issue thus: ?Whether in the entire circumstances of this suit the Court below was right in holding that the Cross- Appellant?s qua Plaintiff?s case was statute barred.? (Grounds 1, 2 and 3)
The 2nd Cross Respondent distilled two (2) issues thus:
i. Whether given the entire circumstances of this case in relation to the very nature of pre-election matter particular under Section 87 of the Electoral Act, 2010 as amended,
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the Lower Court?s decision to dismiss the suit on the premise that it is statute barred is correct and sustainable? (Grounds 1 & 2 of the Notice of Appeal).
ii. Whether considering the facts in support of the originating summons, the questions for adjudication and the reliefs sought, the trial Judge was correct to have held that the cause of action of the Cross Appellant arose on the 7th of October, 2018
(Ground 3 of the Notice of Appeal).
The 3rd Respondent remained neutral and did not file any brief of argument.
In arguing the appeal, the learned counsel to the Cross Appellant Y. D. Dangana Esq., adopted and relied on his brief of argument filed on 15/4/19 in urging us to allow same. The two issues were jointly argued. Learned Counsel reviewed the provisions of Section 87 of the Electoral Act, 2010 as amended and article 20 of the Constitution of the 2nd Cross Respondent, referred to as Exhibit ABZ6 which provided the procedure for nomination of candidates with an Electoral College. The Guidelines for the nomination of candidates for the 2019 Elections ? Indirect Primaries was attached as Exhibit ABZ7. It was
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argued that there was non compliance with Section 87 of the Electoral Act and Exhibits ABZ6 and ABZ7, therefore the name of the 1st Cross Respondent ought not to have been submitted by the 2nd Cross Respondent to the 3rd Cross Respondent as its candidate. The provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999, (Fourth Alteration, No. 21) Act 2017 was reviewed. It was submitted that the act complained of is the submission of the name of the 1st Cross Respondent to the 3rd Respondent on the 18th of October, 2018 after the meeting of the National Working Committee on the 17th of October, 2018. It was contended that the primaries of 7th October, 2018 was inconclusive and could not have produced any candidate having regard to Exhibits ABZ8, ABZ9 and ABZ10, at pages 284 ? 290 of the printed record of appeal. It was submitted that a cause of action arises from the date the breach complaint of occurred. See, AG ADAMAWA VS. THE AGF (2015) ALL FWLR (PT. 797) AT 597; PLATEAU CONSTRUCTION LTD V. AWARE (2014) 6 NWLR (PT. 1404) PG 519 AT PP 542-543 Paragraphs H-C; U.M.B. LTD VS. C.B.N. (2017) ALL FWLR (PT. 880) PG. 823 AT 844
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Paragraphs D-H. We were urged to look at a combination of facts forming the basis for the plaintiff?s case. See MULIMA & ANOR VS. USMAN & 3 ORS (2014) 1-2 SC (PT. 111) PG 126 AT 164-5. It was concluded that even though the primaries held on the 7th of October, 2018, the cause of action upon which the Cross Appellant could sue arose on the 18th of October, 2018 when the 2nd Cross Respondent submitted the name of the Appellant/ 1st Cross Respondent as its candidate. The trial Court was said to have erred in holding that the cause of action arose on the 7th of October, 2018 when the primaries took place and the 1st Cross Respondent emerged as the candidate for the Yola North/ Yola South/ Girei Federal Constituency.
In response, the learned counsel to the 1st Cross Respondent S. Atung Esq., adopted and relied on his brief of argument filed on 25/4/19 as his argument in the appeal in urging us to dismiss same. In arguing his sole issue, it was submitted that a plea that a suit is statute barred is an attack on the jurisdiction of a trial Court to entertain same. See NWAKA VS. HEAD OF SERVICE, EBONYI STATE (2008)3 NWLR (Pt. 1073) PAGE 156; U.M.B.
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LTD V. C.B.N. (2017) ALL FWLR (PT. 880) PAGE 823 AT PAGE 848 Paragraphs B-D; SHELIM VS. GOBANG (2009) 12 NWLR (PT. 1156) 435 AT P. 452, A-G; UTIH VS. ONOYIVWE (1991) 1 NWLR (PT. 166) 166 AT P. 206 Paragraphs A-B. Also, UNIVERSITY OF ILORIN VS. OLUWADARE (2006) 14 NWLR (PT. 1000) 388 (SC) AT P. 417 Paragraphs C-G, 427 Paragraphs D-G & 435 Paragraphs D-E and OLOBA V. AKEREJA (1988) 3 NWLR (PT. 84) 508 (SC). It was submitted that to determine whether a Court has jurisdiction, it is the claim before the Court, particularly the relief sought by the Plaintiff that determines jurisdiction of the Court. The relevant processes are the Statement of Claim, the Writ of Summons and particulars of claim where one is filed along with the Writ of Summons or other original processes. See F.G.N. VS. OSHIOMHOLE (2004) 3 NWLR (PT. 531) 291; EGBUONU VS. B.R.T.C (1997) 12 NWLR (PT. 531) 29; USMAN VS. BABA (2005) NWLR (PT. 917) 113 and LAGOS STATE WATER CORP. VS. SAKAMORI CONST. (NIG) LTD (2011) 12 NWLR (PT. 162) PAGE 569 AT PAGE 595 Paragraphs D-E. It was argued that the Cross Appellant?s claim at the lower Court is a challenge of the 2nd Cross Respondent?s
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primary election held on 7th October, 2018 to select its candidate for Yola North/Yola South/Girei Federal Constituency for the 2019 general election, relief 1 (one) referred to, the other reliefs were said to be ancillary thereto. It was argued that the claim that was instituted pursuant to Section 87(4) (c) (i) and (ii) of the Electoral Act, 2010 (as amended) did not mention the decision of the National Working Committee (NWC) of 18th October, 2018. See OFOMBA VS. INEC (2017) ALL FWLR (PT. 913) AT PAGES 829 ? 859 Paragraphs H-G, P. 860-861 Paragraphs B-C. It was contended that under Section 87 (9) of the Electoral Act (as amended) the Cross Appellant?s right to a remedy accrued on the 7th of October, 2018. See DAVIES VS. AJIBONA (1994) 5 NWLR (PT. 343) PAGE 234 AT PAGE 257 Paragraphs D-F, ELABANJO VS. DAWODU (2006) ALL FWLR (PT 328) PAGE 604, CONGRESS FOR PROGRESSIVE CHANGE VS. YUGUDA (2012) ALL FWLR (PT 651) PAGE 1466 AT PAGE 1471 Paragraph C. That a suit is statute barred is a threshold issue of jurisdiction which the trial Court rightly determined. See U.M.B. LTD VS. C.B.N. (2017) ALL FWLR (PT. 880) PG. 823 AT 848 Paragraphs B-D. It was
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concluded that the cause of action arose on 7th October, 2018 while this suit was filed on 29th October, 2018 clearly outside the 14 days period allowed by Section 285(9) of the 4th Alteration, No. 21, Act, 2017 of the Constitution of the Federal Republic of Nigeria. The trial Court was said to have been right to have held that the action was statute barred.
The learned counsel to the 2nd Cross Respondent, Sule Shuaibu Esq., adopted and relied on his brief of argument filed on 25/4/19 as his argument in this appeal in urging us to dismiss the appeal and affirm the judgment of the lower Court. The two issues were jointly argued. It was submitted that once an action is instituted or brought outside the time prescribed by law or statute, in this case Section 285(9) of the 1999 Constitution, Fourth Alteration Act, that action cannot be sustained as the Plaintiff would have lost his right of action. See ETHIOPIAN AIRLINES VS. AFRIBANK (NIG) PLC & ANOR (2006) LPELR ? 5613 AT 11-16 Paragraphs A-B; FALANA & ORS VS. OLORO & ORS (2012) LPELR 14794 AT 39-48 Paragraphs B-E; KPATI & ANOR VS. PLATEAU INVESTMENT & PROPERTY DEVELOPMENT CO. LTD
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(2017) LPELR-43365 AT 21-24 Paragraphs B-C amongst others. It was argued that once an action is instituted or brought outside the time prescribed by law or statute, in this case Section 285(9) of the 1999 Constitution, Fourth Alteration Act, that action cannot be sustained as the Plaintiff would have lost his right of action. It was submitted that from the affidavit in support of the Originating Summons at the lower Court which formed the basis for the objection based on the limitation of action would reveal that the Cross Appellant had objected to and contested the mode upon which the primary election of the 2nd Cross Respondent was conducted on the 7th October, 2018. The Cross Appellant went further to complain about the alleged inconclusive nature of the said primary election by writing a petition, at page 32 of the printed records where he expressed his dissatisfaction with the procedure and outcome of the primaries. Reference was made to the affidavit in support of the Originating Summons, particularly paragraphs 14-20 and 22-23 at pages 14-15 of the Printed Records of Appeal. Further, that the primary election to elect a candidate to represent her in the
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General Election of the 3rd Respondent for the Yola North/ Yola South/ Girei Federal Constituency of Adamawa State took place on the 7th October, 2018. The letter of complaint about the conduct of the primary election dated 8th October, 2018 was also attached, reference was made to paragraphs 18 and 20 of the supporting affidavit. It was submitted that the commencement of the cause of action was on the 7th of October, 2018, paragraph 15 of the Counter Affidavit referred. Also, that the petition written by the Cross Appellant is self explanatory as to the date of accrual of cause of action, the petition dated 8th October, 2018 was captioned thus:
?RESOLUTION OF THE CONTESTANTS FOR THE HOUSE OF REPS FOR GIREI, YOLA NORTH AND YOLA SOUTH FEDERAL CONSTITUENCY ON INCONCLUSIVE ELECTIONS HELD ON THE 7TH OCT., 2018 AT LAMIDO CINEMA JIMETA.”
Further, that the petition as captioned, its contents and prayers show the Cross Appellant?s dissatisfaction with the conduct of the primary election of 7th October, 2018. From the 7th October, 2018 and the 29th October, 2018 when the suit was filed reveals that it was filed beyond the 14 days limit
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permissible under Section 285(9) of the 1999 Constitution, Fourth Alteration Act. The lower Court was said to have been right to have held that the action was statute barred. The Cross Appellant was said to be wrong to have hinged his cause of action to have arisen on 18th October, 2018 when the name of the 1st Cross Respondent was submitted to the 3rd Cross Respondent.
In alternative argument, without conceding that the cause of action arose on the 17th and 18th October, 2018 as alleged by the Cross Appellant it was submitted that the Courts have in a plethora of authorities decided that the nomination of a candidate by a political party is purely an intra-party affair which the Court has no jurisdiction to entertain. See,ANGADI VS. PDP (2018) 15 NWLR 1 AT 34?36, Paragraphs C ? A; PEOPLES DEMOCRATIC PARTY (PDP) & ORS VS. BARRISTER SOPULUCHUKWU E. EZE & ANOR (2017) LPELR ? 42563; UGWU & ORS VS. PDP & ORS (2015) LPELR ? 24352 and ARDO VS. NYAKO (2014) LPELR ? 22878. It was concluded that the trial Court was right to have held that the cause of action of the Cross Appellant arose on the 7th October, 2018 and
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that the action was statute barred.
The crux of the appeal is whether the learned trial Judge was right to have held that the suit was statute barred. A cause of action is said to be statute barred if the proceedings were brought outside the period laid down by the limitation law or Act. To determine the period of limitation one would examine the Writ of Summons and Statement of Claim alleging when the wrong was committed which gave the Plaintiff the cause of action, that date would be compared with the date on which the Writ of Summons was filed. If the time on the Writ is beyond the period allowed by the limitation law, the action is statute barred. The objection at the trial Court was in view of the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, as amended. It provides as follows:
?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.?
(Underline mine for emphasis).
?I will hereunder reproduce the Cross Appellant?s relief
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1 (one) sought at the lower Court thus:
?A DECLARATION that the 1st Respondent?s Primary Election conducted for Girei/Yola North/ Yola South Federal Constituency on the 7th October, 2018 is NOT incompliance 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.?
Reliefs 2 -14 are ancillary to relief 1 (one) above. Once an action is instituted or brought outside the time stipulated or prescribed by law or statute, in this case Section 285(9) of the 1999 Constitution, Fourth Alteration Act, the action cannot be sustained as the Plaintiff would have lost his right of action. The act or event that the Cross Appellant complained about for which he came to Court is the primary election of the 2nd Cross Respondent held on 7th October, 2018 alleging non compliance with the Electoral Act, the Constitution and Guidelines of the 2nd Cross Respondent?s primary elections. From the
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affidavit of the Cross Appellant in the lower Court in support of the Originating Summons the Cross Appellant had objected to and contested the mode upon which the primary election was conducted by the 2nd Cross Respondent on the 7th of October, 2018. The Cross Appellant also complained about the alleged inconclusive nature of the said primary election by writing a petition contained at page 32 of the printed records of appeal to express his dissatisfaction with the procedure and outcome of the primaries. The Appellant?s complaint or grouse is on the outcome of the primary election, see, paragraphs 14 ? 20 and 22 ? 23 of the affidavit in support of the Originating Summons at pages 14 ? 15 of the printed records of appeal. Particularly, paragraph 14 shows the Cross Appellant?s dissatisfaction with the turn of events, by paragraph 26, the Cross Appellant forwarded his complaint to the chairman of the 2nd Respondent herein and the Appeal panel on the primary election. The petition dated 9th October, 2018 which was attached as Exhibit LAG 6 was deposed to. The primary election complained about took place on 7th October, 2018 which the
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Cross Appellant alleged violated the Constitution of the 1st Cross Respondent and the Guidelines to primary elections of the party, APC. As rightly argued by the learned counsel to the 2nd Cross Respondent, the petition written by the Cross Appellant is self explanatory as to the date of accrual of cause of action. The petition was on the alleged inconclusive elections that held on the 7th October, 2018, the petition was dated 8th October, 2018.
There is nothing to show that the Cross Appellant?s grouse was the submission of the name of the 1st Cross Respondent by the 2nd Cross Respondent to the 3rd Cross Respondent as the candidate of the party for the election into Yola North/ Yola South/Girei Federal Constituency which event took place on the 18th of October, 2018.
From the 7th of October, 2018 to the 29th of October, 2018 when the suit was filed would reveal that it was filed outside the prescribed 14 days limit under Section 285(9) of the 1999 Constitution, Fourth Alteration Act. I hold that the trial Court was right to have held that the action is statute barred, bearing in mind that the action is a pre-election matter under Section 87
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of the Electoral Act, as amended. The Cross Appellant was wrong to have believed that his cause of action accrued when the name of the 1st Cross Respondent was forwarded by the 2nd Cross Respondent to the 3rd Cross Respondent on the 18th day of October, 2018. I hold that the action of the Cross Appellant was filed outside the 14 days permitted by Section 285(9) of the 1999 Constitution, as amended. The lower Court rightly dismissed the action for being statute barred. Having affirmed that the action was statute barred, there would be no need to consider, the alternative argument.
In the final analysis, the Cross Appeal is without merit, same is hereby dismissed. I affirm the judgment of the trial Court to the extent that the action was statute barred in Suit No. FHC/YL/CS/7/2019 delivered on 6th March, 2018.
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:
Y. D. Dangana, Esq. with him, Idris M. Talle, Esq.For Appellant(s)
S. Atung, Esq. for the 1st Cross Respondent.
Sule Shuaibu, Esq. for the 2nd Cross Respondent.
Ishaka Bala, Esq. for the 3rd Cross RespondentFor Respondent(s)
Appearances
Y. D. Dangana, Esq. with him, Idris M. Talle, Esq.For Appellant
AND
S. Atung, Esq. for the 1st Cross Respondent.
Sule Shuaibu, Esq. for the 2nd Cross Respondent.
Ishaka Bala, Esq. for the 3rd Cross RespondentFor Respondent
