ABUBAKAR BABAZANGO v. ALL PROGRESSIVE CONGRESS & ORS
(2019)LCN/13197(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/62/2019
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
ABUBAKAR BABAZANGO Appellant(s)
AND
1. ALL PROGRESSIVE CONGRESS
2. ABDULRAUF ABDULKADIR MODIBBO
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
DEFINITION OF A CAUSE OF ACTION
A cause of action is defined among other meanings as a state of facts that entitle a party to maintain an action. See Black?s Law Dictionary 10th Edition.
In considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claims before it by critically looking at the writ of summons and the statement of claim. There is no need citing any authority in support of this principle of law because the authorities are legion. See decisions of the Supreme Court inGafar V. Government of Kwara State (2007) 4 NWLR(Pt. 1024) 235; Onuorah v. K.R.P.C. (2005)6 NWLR (Pt. 9 21) 393, Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 5,7 and Nkuma V. Odili (2006) 6 NWLR (Pt. 977) 587. PER ABIRIYI, J.C.A.
WHETHER OR NOT A PLAINTIFF HAS A RIGHT TO ENFORCE AN ACTION WHERE IT IS 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. See the decision of the Supreme Court in Emiator V. Nigerian Army (1999) 12 NWLR (Pt. 631) 258.
As the Cross Appellant?s action was instituted outside the time allowed by Section 285(9) of the 1999 Constitution FRN (as amended)the Court below had no jurisdiction to entertain it. See the unreported decision of the Supreme Court in Toyin V. Peoples Democratic Party & 3 Ors SC 308/2018 delivered on 18th January, 2019. PER ABIRIYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This Cross appeal is against the judgment delivered on the 6th March, 2019 in the Federal High Court, Yola Judicial Division, holden at Yola.
At the Federal High Court (the Court below), the Cross Appellant was the plaintiff. The 1st Cross Respondent, 2nd Cross Respondent and the 3rd Cross Respondents were the 1st ? 3rd Defendants.
At the Court below, the Cross-appellant sought for the determination nine questions and fourteen reliefs. I hereby reproduce immediately hereunder the first question for determination as well as the first relief sought by the Cross Appellant. Question 1:
?Whether the 1st Respondent?s Primary election conducted for Yola North/Yola South/Girei Federal Constituency on 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 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.?
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Relief 1:
?A declaration that the 1st Respondent?s primary election conducted for Yola North/Yola South/Girei Federal Constituency on 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 South/Girei Federal Constituency of Adamawa State.?
The originating summons taken out by the Cross Appellant was consolidated with three other suits namely FHC/YL/CS/5/19, FHC/YL/CS/6/19 and FHC/YL/CS/7/19 which were all against the same defendants though different plaintiffs.
After considering the preliminary objection of the 1st Cross Respondent seeking for the striking out of the Cross Appellant?s suit on the ground inter alia that the action was statute barred, the Court below upheld the preliminary objection of the 1st Cross Respondent and dismissed the suit on the ground that it was commenced outside the time allowed by the 1999 Constitution FRN (as amended). The Court below nevertheless
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proceeded to consider the substantive matter.
Dissatisfied with the finding of the court below that the action was statute barred, the Cross Appellant approached the Court by a notice of cross appeal dated 15th March, 2019 and filed 18th March, 2019. The notice of cross appeal contains three grounds.
From the three grounds of cross appeal, the Cross appellant presented the following two issues for determination:
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 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
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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 also submitted two issues for determination. They are:
i. Whether given the entire circumstances of this case in relation to the very nature of pre-election matter particularly under S. 87 of the Electoral Act, 2010 as amended, the Lower Court?s decision to dismiss the suit on the promise that it is statute barred is correct and sustainable? (Ground 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 October, 2018?
(Ground 3 of the Notice of Appeal).
However, the 2nd Cross Respondent formulated a lone issue for determination. It is reproduced immediately hereunder:
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. (Ground 1, 2 and 3).
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Learned counsel for the Cross Appellant argued the two issues formulated by the Cross Appellant together. Learned counsel for the Cross appellant submitted that the primary election conducted for Yola North/Yola South/Girei Federal Constituency on 7th October, 2018 was not in compliance with the Section 87 of the Electoral Act and the party?s Guidelines for nomination of candidates for the 2019 general election and could not for any reason produce a candidate for the constituency in issue to warrant the submission of the name of Abdulra?uf Abdulkadir Modibbo on 18th October, 2018 to INEC.
Learned counsel for the Cross Appellant submitted that the main action complained of in the matter was the submission of the name of Abdulrauf Abdulkadir Modibbo on 18th October, 2018 to INEC despite the inconclusive nature of the primaries.
?It was submitted that there was no conclusive primary election on the 7th October 2018 capable of producing a candidate for the seat of House of Representatives for Yola North/Yola South/Girei Federal Constituency and that the only time a candidate emerged was from the
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National Working Committee?s meeting of 17th October, 2018.
It was submitted that the Supreme Court in the case of A.G. Adamawa V. AGF (2015) All FWLR (Pt. 797) 597 held that a cause of action arises from the date the breach complained of occurred. The Court was also referred to Plateau Const Ltd V. Aware (2014) 6 NWLR (Pt. 1404) 519 at 542-543 and U.M.B Ltd V. C.B.N (2017) All FWLR (Pt. 880) 823 at 844. It was submitted that the Court below erred when it found that the cause of action arose on 7th October, 2018 instead of 17th/18th October, 2018.
Learned counsel for the Cross Appellant submitted that in determining the cause of action, the Court must look at the plaintiff?s claim. He referred the Court to Mulima & Anor V. Usman & 3 Ors (2014) 1-2 Sc (Pt. 111) 126.
It was submitted that from the affidavit evidence of the Cross Appellant even though the primaries held on 7th October, 2018 the cause of action arose on the 18th October, 2018 when the name of Abudulrauf Abulkadir Modibbo was submitted.
?It was submitted that the Court below erred when it held that the cause of action arose from 7th October, 2018 and not 18th October, 2018.
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Learned counsel for the 1st Cross Respondent also argued the two issues formulated by the 1st Cross Respondent together.
On how a cause of action is determined, the Court was referred several authorities among which is Ethiopian Airlines V. Afribank (Nig.) Plc & Anor. (2016) LPELR -5613 at page. 11-16.
It was submitted that once an action is brought outside the time prescribed by law, in this case, Section 285(9) of the 1999 Constitution FRN (as amended), that action cannot be sustained as the plaintiff would be held to have lost his right of action. It was submitted that a perusal of the affidavit in support of the originating summons will show that the Cross Appellant contested the mode of the primary election conducted on 7th October, 2018 and went further to complain about the alleged inconclusive nature of the said primary election by writing a petition as captioned in page 32 of the record to express his dissatisfaction with the procedure and outcome of the primaries. The Court was referred to paragraphs 14-17 and 19 -23 of the affidavit in support of the originating summons pages 14 and 15 of the record.
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It was submitted that there is no dispute about the fact that the 1st respondent?s primary election to elect a candidate to represent her at the General Election for the Yola North/Yola South/Girei Constituency of Adamawa State in the National Assembly took place on the 7th October 2018. The Court was referred to paragraphs 20 and 22 of the affidavit in support of the originating summons at pages 16 and 17 of record.
It was submitted that the Cross Appellant had knowledge that the 1st Cross Respondent as at 7th October, 2018 had allegedly violated its guidelines for nomination of candidates for the 2019 general election which was the commencement of the cause of action. The Court was referred to paragraph 14 of the affidavit in support of the originating summons.
It was further submitted that paragraph 15 of the affidavit in support of the originating summons is an admission that the cause of action arose on 7th October, 2018. The Court was also referred to page 32 of the record containing a petition written by the Cross Appellant.
?It was submitted that 7th October, 2018 to 29th October when the suit was filed in the Court below is outside the 14
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days prescribed under Section 285 (9) of the 1999 Constitution (as amended)
Learned counsel for the 2nd Respondent submitted that a plea that a suit is statute barred is a challenge to the jurisdiction of a trial Court to entertain the matter. The Court was referred to the decision of this Court in Nwaka V. Head of Service Ebonyi State (2008) 3 NWLR (Pt. 1073) 156. The Court was referred to several authorities on the paramount nature of jurisdiction. It was submitted that in determining the jurisdiction of a Court it is to the claim of plaintiff that the Court should turn. Some authorities were cited in support of this principle of law.
It was submitted that the claim of the plaintiff in the instant matter was a challenge to the primary election held on 7th October, 2019. The Court was referred to the first relief sought by the Cross Appellant which learned counsel for the 2nd Cross Respondent called the principal relief.
?It was submitted that relief 1 reproduced elsewhere in this judgment nowhere mentioned the National Working Committee?s decision of 18th October, 2018 for the obvious reason that the decision of the National Working
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Committee is not the focal point of Section 87 (4) (c) (i) of the Electoral Act (as amended) the Court was referred Ufomba V. INEC (2017) All FWLR (Pt. 913) 829-859.
It was submitted that the letter co-authored by the Cross Appellant dated 8th October, 2018 and paragraphs 13 ? 26 of the affidavit in support of the originating summons show that it is the primary election complained of by the Cross Appellant.
3rd Cross Respondent did not file a brief of argument. Learned counsel for the 3rd Cross Respondent stated that the 3rd Cross Respondent did file a brief of argument in line with its neutral posture in these matters.
Section 285 (9) of the (1999) Constitution FRN (as amended) 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 occurrence of the event, decision or action complained of in the suit.?
?For the purpose of limitation of action, time begins to run from the moment the cause of action arose or originated. A cause of action originates from the date on which the incident which gave rise to the
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cause of action occurred. See Fadare V. Attorney-General Oyo State (1982) 4 SC 1.
A cause of action is defined among other meanings as a state of facts that entitle a party to maintain an action. See Black?s Law Dictionary 10th Edition.
In considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claims before it by critically looking at the writ of summons and the statement of claim. There is no need citing any authority in support of this principle of law because the authorities are legion. See decisions of the Supreme Court inGafar V. Government of Kwara State (2007) 4 NWLR(Pt. 1024) 235; Onuorah v. K.R.P.C. (2005)6 NWLR (Pt. 9 21) 393, Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 5,7 and Nkuma V. Odili (2006) 6 NWLR (Pt. 977) 587.
?Learned counsel for the Cross Appellant submitted that even though the primary election held on 7th October, 2018 the cause of action arose on 18th October, 2018. With due respect to learned counsel for the Cross Appellant, the cause of action originated from the date on which the incident that gave rise to the cause of action occurred. That incident
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undoubtedly was the primary election held on 7th October 2018. The name was submitted as a consequence of the primary election. This explains why from the affidavit evidence in support of the originating summons, only one paragraph, that is, paragraph 32 of the affidavit deals with the forwarding of the name of Abdulrauf Abdulkadir Modibbo to INEC. On the other hand there is very weighty affidavit evidence in support of the originating summons which shows that the claim of the Cross Appellant is in respect of the primary election that held on the 7th October, 2018. See paragraphs 14, 16, 19, 20, 21 22, 24, 25 , 28, 30 and 31 of the affidavit in support of the originating summons. See also letter dated 8th October, 2018 on alleged inconclusive elections at page 32 of the record as well as question 1 for determination in the originating summons and relief 1 sought by the Cross Appellant both reproduced earlier in this judgment.
?On the face the originating summons, therefore, particularly relief 1 and the affidavit in support of the originating summons, it is not difficult to find that the incident which gave rise to cause of action was the primary election
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held on the 7th October, 2018 and not the submission of the name of Abdulrauf Abdulkadir Modibbo to INEC.
The Court below was on firm ground when it held that the action was statute barred. 7th October, 2018 to 29th October, 2018 when the cross Appellant instituted the action was outside the 14 days allowed by Section 285(9) of the 1999 Constitution FRN (as amended).
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. See the decision of the Supreme Court in Emiator V. Nigerian Army (1999) 12 NWLR (Pt. 631) 258.
As the Cross Appellant?s action was instituted outside the time allowed by Section 285(9) of the 1999 Constitution FRN (as amended)the Court below had no jurisdiction to entertain it. See the unreported decision of the Supreme Court in Toyin V. Peoples Democratic Party & 3 Ors SC 308/2018 delivered on 18th January, 2019.
?In the circumstances, the two issues presented by learned counsel for the Cross-Appellant which were
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argued together are resolved against the Cross-Appellant and in favour of the 1st and 2nd Cross-Respondents.
The cross appeal is hereby dismissed.
The judgment of the Court below dismissing the suit for being statute barred is affirmed by me.
CHIDI NWAOMA UWA, J.C.A.: I agree.
?ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
Y.D. Dangana, Esq. with him, Idirs Musa Talle, Esq.For Appellant(s)
Sule Shu’aibu, Esq. for the 1st Cross Respondent.
Samuel Atung, Esq. for the 2nd Cross Respondent.
I. Bala, Esq. for the 3rd Cross Respondent
For Respondent(s)
Appearances
Y.D. Dangana, Esq. with him, Idirs Musa Talle, Esq.For Appellant
AND
Sule Shu’aibu, Esq. for the 1st Cross Respondent.
Samuel Atung, Esq. for the 2nd Cross Respondent.
I. Bala, Esq. for the 3rd Cross RespondentFor Respondent