AKPOTI v. A. P. C. & ORS (2020)

AKPOTI v. A. P. C. & ORS

(2020)LCN/14093(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/A/125/2020

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

NATASHA HADIZA AKPOTI APPELANT(S)

And

ALL PROGRESSIVE CONGRESS 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. YAHAYA BELLO RESPONDENT(S)

RATIO

DETERMINATION OF A CAUSE OF ACTION

Firstly, in determining when the cause of action of the Appellant arose, it is trite law that for a Court to determine what the cause of action is in a suit, it must look only at the statement of claim. In the case of YARE VS. NATIONAL SALARIES INCOME AND WAGES COMMISSION (2006) 2 NWLR (PT. 965) PAGE 546, it was held that:
“In determining when a cause of action is said to have accrued, the Courts are enjoined to consider the plaintiff’s statement of claim or the factual situation on which the plaintiff relies to support his claim.” The Straud’s Judicial Dictionary 4th Edition defined cause of action as “the entire set of facts that gives rise to an enforceable claim.”
In the case of OGBIMI VS. OLOLO (1993) 7 NWLR (PT. 304) PAGE 128 at 136, it was held that:
“A cause of action, is, in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaints and the consequent damage.”
In the case of AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR (PT. 127) PAGE 369 AT 382 – 383, it was held that:
“when facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligation exists side by side, a cause of action is said to have accrued.”
Finally, in the recent Court of Appeal case of OBIKA VS. OBIKA (2018) LPELR-43965, it was defined thus:
“A cause of action generally refers to every fact which is necessary for the plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle or aggregate of facts which the law recognizes as giving the plaintiff a substantive and recognized right to make the claim against the relief or remedy being sought. Thus, the verifiable factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right, capable of being claimed or enforced against the defendant. In other words, the eventual factual situation relied upon by the plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the defendant that gives to the plaintiff his cause of complaints is a cause of action.” PER IDRIS, J.C.A.

INTERPRETATION OF STATUTES; LITERAL RULE

The proper approach to the interpretation of clear words of a statute is to follow them, in their simple, grammatical and ordinary meaning rather than look further because that is what prima facie gives them their reliable meaning. This is also generally true of constitutional provisions if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation. See the cases of FAWEHINMI VS. INSPECTOR GENERAL OF POLICE (2002) FWLR (PT.108) 1355, (2002) 7 NWLR (PT. 767) 606; (2002) 5 SCNJ 103; AFRICAN NEWSPAPERS LTD VS. FEDERAL REPUBLIC OF NIGERIA (1985) 2 NWLR (PT.6) 137; SALAMI VS. CHAIRMAN L.E.D.B. (1989) 5 NWLR (PT.123) 539; OGBONNA VS. ATTORNEY-GENERAL, IMO STATE (1992) 1 NWLR (PT.220) 647. PER IDRIS, J.C.A.

THE LEGAL EFFECT OF AN ACTION BEING STATUTE BARRED

The Supreme Court in the case of ARAKA VS. EJEAGWU (2000) LPELR – 533(SC) reiterated as follows:
“…statute-barred” simply means barred by a provision of the statute. It is usually as to time i.e. the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no avail and has no valid effect. The bar can be lifted or the limit extended only if the statute allows it to be done. Where there was no such extension, the action carried out will be invalid, and the Court will treat as such.” (Emphasis mine)
From the above authority and my emphasis above, it is clear that any action taken after the specified period stipulated by the provision of statute is not only invalid. On the other hand, only the statute can provide an extension for the limitation period. Therefore, the action leading to this appeal having been filed outside the statutory period of filing same is statute barred.
Now that I have found that the action is statute barred, what is the effect where an action is statute barred?
The Supreme Court held in the case of HASSAN VS. ALIYU & ORS (2010) LPELR – 1357(SC) thus:
“When an action is statute-barred, the 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 limitation had elapsed. An action commenced after the expiration of the statutory period within which an action must be brought is not maintainable. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being properly instituted before the Court.” Per Adekeye, J.S.C. (Pp. 86-87, paras. G-C).
It would be instructive here to also cite the authority of my learned brother Sanga, JCA in the case of SPDC VS. WEST (2018) LPELR – 44290(CA) wherein it was reiterated interalia:
“I have to state that the effect of an action being statute barred means that that action is rendered incompetent and deprives the Court of the requisite jurisdiction to hear and determine same….”
This simply follows that the effect of an action that is statute barred is that it robs the Court of the jurisdiction to entertain same.
In conclusion therefore, it is my well-considered view that the action of the Appellant is statute barred as at the time it was filed having been filed 46 days outside the 14 – day period stipulated in Section 285(9) of the Constitution (4th Alteration) for the filing of a pre-election matter under which this instant appeal falls and thus robing this Court of the jurisdiction to entertain same. PER IDRIS, J.C.A.

MEANING AND IMPORTANCE OF JURISDICTION

The law is clear, the issue of jurisdiction is the lifeline, the bedrock, the power source of any matter before the Court.
The Supreme Court in FLORENCE ACHONU VS. OLADIPO OKUWOBI (2017) 14 NWLR (PT. 1584) 142 AT 171, defined jurisdiction to simply mean the power and authority of the Court, recognised by law to adjudicate over a controversy. Similarly, jurisdiction, as the authority which a Court has to decide matters that are litigated before it or take cognizance of what is presented in a formal way for its decisions. Such authority is controlled or circumscribed by the Statute which created the Court or by a condition precedent by a legislation which must be fulfilled before the Court can entertain the suit. The importance of jurisdiction cannot be overemphasized. The jurisdiction is the life wire of a Court as no Court can entertain a matter where it lacks jurisdiction. In the same vein, the Apex Court in UTIH & ORS VS. ONOYIVWE & ORS (1991) LPELR – 3436 (SC), stated that jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.
Now, the Appellant’s counsel further went ahead to cite the case of FAAN VS. WAMAL EXPRESS SERVICES (NIGERIA) LTD (2011) LPELR – 1261 (SC) and CHIEF OF NAVAL STAFF & ANOR VS. TSENONGO (2018) LPELR – 45883, arguing that it is the law that a Court of law has neither jurisdiction nor discretionary power to refuse to take a pending process before it, whatever maybe its pre-trial opinion on it. The Appellant counsel further stated that no matter how stupid, reckless, irregular, aberrant or unmeritorious such a process is, the Court must hear it and rule on it. PER IDRIS, J.C.A.

WHEN A PARTY IS SAID TO HAVE THE LOCUS STANDI TO INSTITUTE AN ACTION IN COURT

“whether the Appellant has locus standi to institute this action,” the position of the law is that a person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his rights and obligations have been or are in danger of being infringed. In other words, the plaintiffs’ statement of claim must disclose sufficient legal interest and the plaintiff must show how such interest arose in the subject matter. See Fawehinmi v. Akilu (1987) 4 NWLR (Pt.67) 797. This is sine qua non to the exercise of jurisdiction by the trial Court to hear the matter on the merit. See Arowolo vs. Akaiyejo (2012) 4 NWLR (Pt. 268) …” To the nature of locus standi the apex Court in the same NWORIKA VS. ONONEZE-MADU & ORS (SUPRA) held that:
“Locus Standi is a condition precedent to instituting an action before a Court of law. It is a legal voice with which the Plaintiff amplifies his legal rights over and above those of ordinary men. The issue of locus standi constitutes a condition precedent to the institution of any action before a Court of Law. For an action to be maintainable, the person instituting it must have legal capacity, otherwise the Court is robbed of necessary jurisdiction to entertain it.” PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Originating summons filed on the 14th of November, 2019 before the Federal High Court, sitting in Abuja, the Appellant who was Plaintiff at the trial, sought for the determination of the following questions against the 1st and 2nd Respondents:
1. Whether Yahaya Bello, the candidate of the 1st Defendant in the forthcoming Kogi State Governorship Election being organized by the 2nd Defendant, has by his act of double registration, committed a wrongful act capable of disqualifying him as a voter or person to be voted for having violated the provisions of Section 24(E) of the Electoral Act 2010 as amended.
2. Whether Yahaya Bello, candidate of the 1st Defendant is on account of his double registration as a voter, a fit and proper person to be sponsored as a Governorship candidate by the 1st Defendant or be allowed by the 2nd Defendant to contest as a Governorship candidate in the forthcoming Kogi State Governorship Election.
3. Whether Yahaya Bello, the candidate of the 1st Defendant in the forthcoming Kogi State Governorship election, is not liable to be disqualified and/or barred

from participating or contesting in and/or voting for any political office for the next 10 years, pursuant to his flagrant violation of the provisions of Section 24(E) of the Electoral Act 2010 as amended.
RELIEF SOUGHT
1. A Declaration by this Honourable Court that Yahaya Bello, the 1st Defendant’s Candidate in the forthcoming Kogi State Governorship Elections has by virtue of his act of Double registration as a voter violated the provisions of Section 24(E) of the Electoral Act 2010 as amended.
2. A Declaration that Yahaya Bello, the Candidate of the 1st Defendant is liable to be disqualified and/or barred from contesting, participating and/or voting in the forthcoming Kogi State Governorship Election being organized by the 2nd Defendant on account of his wrongful act of gross violation of Section 24(E) of the Electoral Act 2010 as amended, which act of violation robs him of the capacity or vires to contest the forthcoming Kogi State Governorship Election.
3. An Order by this Honourable Court disqualifying and/or barring or ordering the 2nd Defendant to disqualify and/or Yahaya Bello, the candidate of the 1st Defendant in the

forthcoming Kogi gubernatorial election from contesting and/or vieing for the forthcoming Kogi State Governorship election or for any political office for the next 10 years, pursuant to his violation of the provisions of Section 24(E) of the Electoral Act 2010 as amended.
4. An Order of mandamus compelling and/or mandating the Independent National Electoral Commission (2nd Defendant) to thoroughly investigate the act of double registration as a voter made by Yahaya Bello, the candidate of the 1st Defendant and to immediately prosecute him upon the expiration of his first tenure of office as Governor of Kogi State in January, 2020.
5. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstance.

The case of the Appellant at the trial Court is to the effect that the 3rd Respondent is not competent or qualified to contest the governorship election having contravened the provisions of the Electoral Act as a result of double registration as a voter with the 2nd Respondent.

The Appellant claimed that sometime in 2011, during the 2nd Respondent’s Voter’s Registration, the 3rd Respondent,

the candidate of the 1st Respondent had registered as a voter with the 2nd Respondent in Abuja. The Appellant further claimed that upon the 3rd Respondent’s return to Kogi State to participate in politics, he had on the 23rd May, 2017 did a second registration at the Government house, Lokoja while his previous registration was still subsisting. The Appellant then claimed that the 3rd Respondent applied for the transfer of his original registration from Abuja to Kogi State which was carried out and his permanent voters card, was issued to him on the 26th February, 2018 while his second registration at the government house, Lokoja is still subsisting.
Owing to the foregoing, the Appellant claimed that the 3rd Respondent ought not to have been qualified by the 1st Respondent as its flag bearer and also by his double registration is not a fit and proper person to be allowed by the 2nd Respondent to vote in the Kogi State gubernatorial election.

On the other hand, the 1st Respondent filed a Counter affidavit deposed to on the 20th November, 2019. The 2nd Respondent also filed a Counter affidavit deposed to on the 20th November, 2019. The 3rd

Respondent also filed his Counter affidavit to the originating summons filed by the Appellant. It is also important to note that each Respondent filed their respective Preliminary Objection to the suit of which the Appellant joined issues to.

The Trial Court delivered its judgment in the matter on the 20th January, 2020 and in striking out the suit No: FHC/ABJ/CS/1221/2019 held that the Appellant has no locus Standi to have initiated the suit in the first place. Therefore, the Court cannot exercise jurisdiction on the matter.

Dissatisfied with the Judgment of the trial Court, the Appellant filed a Notice of Appeal dated 31st January, 2020 and filed on the same date comprising of Eight (8) grounds. The Appellant and the Respondents filed and exchanged their respective briefs of argument.

The Appellant’s Counsel filed its brief dated 3rd March, 2020 settled by Chief Mike A.A. Ozekhome SAN. In the Appellant’s brief, two (2) issues were distilled for the determination of this appeal:
1. Whether the judgment of the trial Court was not delivered without jurisdiction consequent upon the failure to determine the Originating Summons

filed by the Appellant in the Proceedings before the trial Court which gave rise to this Appeal, same thereby being liable to be set aside by the Honourable Court. (distilled from grounds 4 & 7)
2. Whether from the totality of the evidence led before the trial Court, the trial Court was right in its holding that the Appellant lacks the requisite locus standi to institute this action upon which this appeal is predicated. (distilled from grounds 1, 2, 3, 5 & 6)

As it relates to the first issue the Appellant’s counsel submitted that the trial Court after erroneously holding that Appellant has no locus to institute the subject suit of this appeal, misapplied the decision in EMEZI VS. OSUAGWU by refusing to determine the originating Summons of the Appellant. The Appellant’s Counsel argued that the issue in EMEZI VS. OSUAGWU was the question of whether the lower Court was right in entertaining the claim when its jurisdiction had been ousted by Section 5 of Decree No. 107 of 1993. The Appellant’s Counsel also argued that the trial Court ought rightly to have determined the Appellant’s Originating Summons, which was duly filed

before it. In addition, the Appellant’s Counsel submitted that the trial Court’s failure to determine the Appellant’s originating summons renders the judgments of the trial Court a complete nullity, and same liable to be set aside by the honourable Court. The Appellant relied on FAAN VS. WAMAL EXPRESS SERVICES NIGERIA LTD (2011) LPELR – 1261 (SC) and CHIEF OF NAVAL STAFF & ANOR VS. TSENONGO (2018) LPELR – 45883 (CA) to assert their points above.

The Appellant’s Counsel further argued that the trial Court has no liberty to choose which issues it should determine, but under a sacred duty to decide or pronounce on all issues raised before him once they were properly raised and canvassed by the parties before him. The Appellant’s counsel relied on UZUDA & ORS VS. EBIGAH & ORS (2009) LPELR-3458 (SC); HONEYWELL FLOUR MILLS PLC VS. ECOBANK (2018) LPELR – 4512(SC); OVUNWO VS. WOKO (2011) 17 NWLR (PT. 1277) and BRAWAL SHIPPING LTD VS. F.I. ONWADIKE CO. LTD (2000) 11 NWLR (PT. 678). In conclusion, the Appellant’s Counsel submitted that the failure to pronounce on all issues placed before it is fatal to the

whole proceedings of the trial Court and same amounts to a breach of the Appellant’s constitutional right to fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999.

As it regards issue two, the Appellant’s Counsel argued that the trial Court erred in law and same occasioned a miscarriage of justice on the Appellant when it held that the Appellant has no locus standi to maintain this action. Counsel argued that the Appellant clearly demonstrated her locus standi in the Originating Summons before the Court (pages 486 – 488 of the record of Appeal). The Appellant Counsel submitted that the Appellant being an indigene of Kogi State will be affected by governance in Kogi State. Counsel further submits that contrary to the holding of the trial Court that the suit which gave rise to this Appeal has no nexus with Section 87(9) and Sections 31(5) of the Electoral Act, 2010 (as amended), upon which basis the lower Court held that the Appellant has no locus standi to maintain this action; the act of double registration of the 3rd Respondent while filing INEC CF001 is tantamount to supplying false

information as contemplated by the said Section 31(5) of the Electoral Act. Counsel submitted that Section 87(9) the Electoral Act 2010, (as amended) being that the Appellant was actually challenging the nomination and participation of the 3rd in the November, 2019 Kogi State Gubernatorial Election.

Additionally, the counsel for the Appellant argued that the trial Court had in one breath held that the case of the Appellant is a civil action, and not about the prosecution of the 3rd Respondent, but in a rather strange manner, later held that the Appellant had no fiat to prosecute the 3rd Respondent for a criminal matter. The Appellant also argued that the issue of the propriety or otherwise of a litigant who is not a prosecuting agency bringing an action premised on Section 24(e) of the Electoral Act (as amended) before a Court was an issue raised suo motu by the learned trial Court, and not by any of the parties. Counsel then argued that having raised the issue above suo motu, about the propriety or otherwise of the Appellant bringing an action premised on Section 24(e) of Electoral Act (as amended) before a Court of law which formed basis for striking out the Appellant action.

Finally, the counsel for the Appellant submitted the trial Court which held that the Appellant has no locus standi is against public policy which seeks to halt malfeasance in government. Additionally, counsel argued that every citizen has the locus standi to institute an action founded on declaring the unconstitutionality or invalidity of laws. In conclusion, the Appellant argued that contrary to the holding of the trial Court that the Appellant has no locus standi to maintain the subject suit of this appeal, because, fraud and false declaration in the opinion of the trial Court have no semblance, that the fraudulent act of the 3rd Respondent in not disclosing his act of double registration is tantamount to false declaration as contemplated by Section 31(5) of the Electoral Act.

The 1st Respondent’s Counsel filed his brief of argument on the 6th March, 2020 settled by Abdulwahab Mohammed, Esq. and a Notice of preliminary objection, challenging this Appeal and same was argued together.

The 1st Respondent’s Notice of Preliminary Objection is predicated on the fact that the Appellant’s suit leading to this appeal is statute barred, having been filed 14 days after the purported accrual of the cause of action, in contravention of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration Act).

The 1st Respondent Counsel raised a sole issue for determination of the Preliminary objection thus:
“Whether this Honourable Court has requisite Jurisdiction to entertain the instant Appeal in view of the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No 21) Act 2017 and the decision of the Supreme Court in the case of Bello V Yusuf & Ors (2019) LPELR-47918 (SC)”

The 1st Respondent’s Counsel, while arguing the Preliminary Objection cited the case of IKPEKPE VS. WARRI REFINERY & PETROCHEMICAL CO. LTD & ANOR (2018) LPELR – 44471 and submitted that Jurisdiction is the live wire of every suit. He also argued that pre-election and election related matters are sui generis hence time is of essence. On this point, counsel cited the case of PDP VS. EZEONWUKA & ANOR (2017) LPELR – 42263.

The 1st Respondent’s Counsel also argued that the entire gamut of the Appellant’s cause of action is hinged on the determination of, whether in view of the purported infraction of Section 24(e) of the Electoral Act 2010 (as amended in 2015), the 3rd Respondent was rightly sponsored by the 1st Respondent and therefore qualified to contest the 16th November, 2019 Gubernatorial election in Kogi State.

The 1st Respondent’s Counsel argued that the cause of action of the Appellant predates the November 16th 2019 gubernatorial election in Kogi State and therefore a pre-election matter. He further argued that it was stated in the affidavit in support of the preliminary objection that the 3rd Respondent, having emerged winner of the 1st Respondent’s primary election conducted on the 29th of August, 2019, automatically became the candidate of the 1st Respondent in the concluded gubernatorial election held on the 16th November, 2019.

The 1st Respondent’s Counsel also argued that, in determining the Cause of Action of the Appellant it is important to examine some paragraphs of the Originating summons. He went further to reproduce paragraphs 32(d) (e) and 34 of the

affidavit in support of the originating summons. He further argued that the nomination, qualification and candidacy of the 3rd Respondent was the issue in the originating summons leading to the appeal. The 1st Respondent Counsel also argued that the 3rd Respondent became candidate of the 1st Respondent by virtue of his emergence as winner of the primary election of the 1st Respondent held on the 29th of August, 2019. Therefore, the Appellant having filed the Originating summons on 14th October, 2019 about 46 days after the primaries, same has become statute barred by virtue of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration) Act 2017.
The 1st Respondent’s Counsel also argued that assuming but not conceding that the cause of action cannot date back to 29th August, 2019 the Appellant’s suit can still not escape the wrath of limitation of time imposed by the said Section 285(9). He further argued that the last date the 2nd Respondent fixed for the submission and acceptance of candidates in respect of the 16th November, 2019 Governorship election in Kogi State is 9th September, 2019. Therefore, if the

cause of action is traced back to the said 9th September, 2019 the suit will be stale as it was filed 35 days after the last date of submission and acceptance of candidates which means the suit was filed outside the 14 days allowed by Section 285(9) of the Constitution (4th alteration).
The 1st Respondent’s Counsel submitted that a suit being statute barred is that a party who otherwise has a valid claim, which is not even the case in the instant appeal, would no longer be allowed to enforce same in a Court of law. Counsel cited the case of HASSAN VS. ALIYU & ORS (2010) 17 NWLR (PT. 1223) P. 547.

The 1st Respondent’s Counsel further submitted that where a trial Court is bereft of Jurisdiction to entertain a matter, an appellant Court is also bereft of jurisdiction to entertain the matter on Appeal. Therefore, the Jurisdiction of this Court is hinged on the Jurisdiction of the trial Court. He cited the case of EHUWA VS. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS.
In conclusion, the 1st Respondent Counsel urged this Court to resolve the sole issue submitted for the determination of the 1st Respondent’s Preliminary Objection in her favour and dismiss this appeal.

In the 1st Respondent’s Brief of Argument, the 1st Respondent’s Counsel raised two issues for determination as follows:
1. Whether the judgment of the trial Court was not delivered without jurisdiction consequent upon the failure to determine the originating summons filed by the Appellant in the proceedings before the trial Court which gave rise to this Appeal, same thereby being liable to be set aside by the Honourable Court (Distilled from grounds 4 & 7 of the Notice of Appeal)
2. Whether from the totality of evidence led before the trial Court, the trial Court was right in its holding that the Appellant lacks the Locus Standi to institute this action upon which this appeal is predicated (Distilled from grounds 1, 2, 3, 5 and 6 of the Notice of Appeal).

The 1st Respondent’s Counsel argued the afore-mentioned issues for determination as follows:
On issue One, the 1st Respondent’s Counsel argued that while a Court is bound by law to consider all issues raised by parties before it, it is not bound to go into the merits of the matter where it is bereft of

requisite jurisdiction to entertain such matter abinitio. Counsel cited the case of LAKANMI VS. ADENE & ORS (2003) 10 NWLR (PT. 828) P. 353.

The 1st Respondent’s Counsel further argued that the proper position of the law is that a Court of law would have no business considering an application where it lacks jurisdiction to entertain it. At this stage, it does not matter the strength or weaknesses on the merits of such application and the proper course to take by a Court where it finds that it has no jurisdiction is to strike out the application without further ado. On this point, he cited the case of IZEZE VS. INEC & ORS (2018) 11 NWLR (PT. 1629).

The 1st Respondent’s Counsel also argued that it is not a breach of the fundamental right to fair hearing of a party where a Court declines to entertain a matter for lack of jurisdiction.

On Issue two, the 1st Respondent’s Counsel argued that the question of whether the Appellant not being a prosecuting authority and not having a fiat from the requisite prosecuting agency can institute an action pursuant to Section 24(e) of the Electoral Act (as amended) is tied to the issue of

whether the Appellant has locus standi to institute the action and therefore goes to the jurisdiction of the trial Court to entertain the suit. He further argued that the issue of locus standi is a jurisdictional issue. It is one that can be raised by the Court without any of the parties raising it.

The 1st Respondent’s Counsel submitted that it is not in every instance where the Court raises an issue suo motu that it must call or require parties to address it on the point. Where the issue raised by the Court suo motu borders on the jurisdiction of the Court to entertain the suit, the Court can decide the point without asking parties to address it. On this point, counsel cited the case of ANGADI VS. PDP & ORS (2018) LPELR – 44375.

The 1st Respondent’s Counsel argued that the trial Court was right to draw inference without requiring parties to address it on the point, that the Appellant who is not a prosecuting agency and does not have a fiat from requisite prosecuting agency cannot indict the 3rd Respondent in the manner she has pleaded in her originating summons when she is not a prosecuting authority, has no fiat and when 3rd

Respondent has never faced any form of criminal trial or indictment on account of any electoral infraction, bothers on her locus standi to institute the suit.

The 1st Respondent’s Counsel therefore urged this Court to hold that, the trial Judge was in order when it drew the right inference based on the processes filed by parties and arguments therein in holding that the Appellant not being a prosecuting agency and not having any fiat is bereft of the locus standi to institute the suit subject matter of this appeal.

The 1st Respondent’s Counsel argued that the Appellant is not a member of the 1st Respondent neither was she an aspirant of the primary election that ushered in the 3rd Respondent as the lawfully nominated candidate of the 1st Respondent in the 16th November, 2019 Governorship election in Kogi State.

In conclusion, the 1st Respondent Counsel urged this Court to resolve the two issues formulated for determination of this appeal in favour of the 3rd Respondent, uphold our arguments by dismissing this appeal.

The 2nd Respondent counsel filed their brief of argument on the 13th of March, 2020 and settled by Wendy Kuku (Mrs.) and two issues for determination were distilled:

Whether the judgment of the trial Court was not delivered without jurisdiction consequent upon the failure to determine the Originating Summons filed by the Appellant in the Proceedings before the trial Court which gave rise to this Appeal, same thereby being liable to be set aside by the Honourable Court. (Distilled from Grounds 4 and 7).
2. Whether from the totality of the evidence led before the trial Court, the trial Court was right in its holding that the Appellant lacks the requisite locus standi to institute this action upon which this appeal is predicated. (Distilled from Grounds 1,2,3, 5 & 6).

On issue one, the 2nd Respondent has argued that where jurisdiction of Court is challenged, it is the first thing the Court must consider and once it decides that it does not have jurisdiction, he need not embark on a journey of futility by going into the merits of the case. Reference was made to PDP VS. EZEONWUKA (2018) 3 NWLR (PT. 1606) PAGE 187 AT 257.

The 2nd Respondent’s counsel has argued that the issue raised before the trial Federal High Court is on the locus standi

of the Appellant as the Plaintiff which is jurisdictional and the Court having determined that it lacked jurisdiction to entertain the matter and was right to have struck it out. It was further stated that, the Appellant did not show to the Court how the failure of the trial Court to go into the merit of the case had occasioned a miscarriage of justice.

On issue two, the 2nd Respondent’s counsel has argued that the term “locus standi” denotes the legal capacity to institute proceedings in a Court of law, to appear and be heard before the Court or a tribunal. The 2nd Respondent’s counsel has argued that to see if a plaintiff has locus standi, the statement of claim or affidavit in support of the originating summons. It was then submitted that when the reliefs sought by the Appellant in the originating summons and the affidavit of support are examined, it will be clear that the Appellant lacked the locus standi to institute the action.

The 2nd Respondent’s counsel also made reference to Section 6(6) of the 1999 Constitution, stating that the Courts must operate within the ambit of those judicial powers and take cognizance

of justiciable actions properly brought before them. Reliance was placed on TUKUR VS. GOVERNMENT OF TARABA STATE (1997) 6 NWLR (PT. 510) PAGE 549.

It was then argued that it is trite law that where a person institutes an action to claim a relief, which on the facts of the cause is enforceable to another person, then, the former cannot succeed because of lack of “locus standi” for it is the person in whom is vested the aggregate of the enforceable rights in a cause that has the standing to sue. Reliance was placed on EGOLUM VS. OBASANJO (1999) 4 NWLR (PT. 611) PAGE 423.

The 2nd Respondent’s counsel urged this Court to affirm the holdings of the trial judge on pages 1736 – 1739 of the Records of appeal and hold that the Appellant lacked the requisite “locus standi” to maintain the suit and affirm the order by the trial judge striking out the suit for incompetence and lack of jurisdiction.

The 3rd Respondent counsel filed his brief of argument on the 6th of March, 2020 and it was settled by M.Y. Abdullahi Esq. in the said brief of argument two issues for determination were distilled:

Whether the trial Court was right to determine the Preliminary objection first and not proceed into the merit of the suit having found that the Appellant lacked locus to institute the action. (Distilled from Grounds 4 and 7 of the Grounds of appeal.)
2. Whether the trial Court was right to hold that the Appellant lacks the requisite locus standi to institute this action. (Distilled from Grounds 1, 2, 3, 5, and 6 of the grounds of appeal.)

On issue one, the 3rd Respondent’s counsel has argued that once the issue of jurisdiction is raised and challenged, the Court must first hear and determine its jurisdiction before going into the matter where it becomes necessary. Reference was made to OGBORU & ANOR VS. UDUAGHAN & ORS (2012) LPELR – 8287 SC.

It was also submitted that it is trite that where no question as to the civil rights and obligations of the plaintiff is raised in the claim of the Plaintiff, the claim will be struck out and the action dismissed. It was also argued that the first hurdle for the plaintiff to surmount in maintaining an action is to let his claim reflect his legal authority to demand declarations sought and his right which have been

injured or likely to be injured and for the protection of which he needs the remedy. Reliance was placed THOMAS VS. OLUFOSOYE (1986) 1 NWLR (PT. 18) PAGE 669.

This Court was then urged to hold that the trial Judge was right in first determining the issue of locus standi.
It was submitted that parties and the Court are bound by pleadings in a particular case. It was then argued by 3rd Respondent counsel that the Appellant had tried to deviate from her pleadings by arguing that her action was pursuant to Section 31(5) of the Electoral Act 2010 as amended instead of Section 87(9) of the Electoral Act 2010 as earlier relied on.

The 3rd Respondent’s counsel also argued that the trial judge was right in striking out the suit without going into its merits having found that the Appellant did not have the locus standi to institute the action. This was also held in the case of ELDER GODWIN INE AMADI & ANOR VS. FYNECOUNTRY ABRAHAM & ORS (2019) LPELR – 48314.

This Court was urged to hold that the trial Court was right for not going into the merits of the case after declining jurisdiction.

On issue two, it was argued by the 3rd Respondent’s counsel that for any person to be heard in an action before any competent Court, such person must show his/her right in law to pursue such action otherwise every busybody will institute an action just to embarrass the Respondent. It is the right to be heard in a matter pending before a Court or legislative body. The case of ADESANYA VS. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 358 was cited in support.

It was further argued that for the Appellant herein to have the locus to maintain this action, she must be able to show that her civil rights and obligations have been infringed upon. She must also show that either her personal interest will immediately be or has been adversely affected by the action. Reference was made to CHIDI B VS. MRS. ANN ONONEZE-MADU & ORS (2019) LPELR-46521 SC.

It was then submitted that it is crystal clear that from the questions raised for determination by the trial Court on the originating summons, together with the reliefs sought and the grounds upon which the action was founded, the grouse of the Appellant is that the 3rd Respondent violated Section 24(1) (E) of the Electoral Act

Section 24(1) (E) of the Electoral Act 2010 as amended and thus, should be disqualified. It was submitted that all the authorities relied upon by the Appellant on whether the Court raised the issue of Section 24(1)(E) of the Electoral Act 2010 (as amended) suo motu are misplaced and not helpful to the case of the Appellant. It was further stated that this is because an action pursuant to Section 24(1)(E) of the Electoral Act 2010 as amended is not a civil action and can only be prosecuted in a manner prescribed by law.

The 3rd Respondent finally submitted that the trial Court was right to hold that the Appellant lacked locus standi to institute the action pursuant to Section 24(1)(E) of the Electoral Act 2010 as amended being a criminal allegation and was right not to delve into the merit of the substantive originating summons having found that it was robbed of jurisdiction on the account of the Appellant’s lack of locus standi.

In the Appellant’s Reply Brief of Argument to the 1st Respondent’s Brief of Argument dated 3rd March 2020 and filed on 4th March, 2020, counsel for the Appellant argued a reply to the Notice of Preliminary Objection. Counsel argued in reply to the

preliminary objection that the cited decision in BELLO VS. YUSUF AND ALL PROGRESSIVE CONGRESS VS. HON JOHN HALIMS AGODA (SUPRA) was cited out of contest as none is applicable to the facts of this case. Counsel for the Appellant further submitted that this Appeal is founded on fraud wherein particulars where rightly supplied and that the limitation period created under Section 285(9) of the Constitution of the Federal Republic of Nigeria is not a bar to this Appeal.

Counsel for the Appellant also argued that the limitation period created in the said Section 285(9) of the Constitution is not a magical wand that admits no exceptions. Counsel additionally argued that fraud is an exception to every limitation law. Counsel for the Appellant relied on EGWUINI & ORS VS. AGADA & ANOR (2018) LPELR – 44683 (CA); LAWAL & ORS VS. EXECUTIVE GOVERNOR, LAGOS STATE & ORS (2017) LPELR – 43047(CA) and DUZU & ANOR VS. YUNUSA & ORS (2010) LPELR – 8989(CA).

To the 1st Respondent’s argument contained in paragraph 4.14 of their brief argument which states that this Court is bereft of jurisdiction, Counsel for the Appellant argued

this submission is untenable. Counsel further stated that the Appeal is challenging the holding of the trial Court that it lacked jurisdiction to entertain the case of the Appellant. Additionally, Counsel for the Appellant then submitted that the issue of the Appellant not being a prosecuting agency and could not maintain a case under Section 24(e) of the Electoral Act 2010 was in fact raised suo moto as it was never apparent from the records before the Court so as to be accommodated under the exceptions on when a Court can raise an issue suo motu and proceed to resolve same without giving parties opportunity to address it on same. Counsel for the Appellant relied on EFFIOM VS. C.R.O.S.I.E.C. (2010) ALL FWLR (PT. 552) 1610.
The Appellant’s counsel urged the Court to allow this appeal and set aside the decision of the trial Court.

The Appellant’s counsel filed a Reply to the 3rd Respondent’s Brief of Argument dated 3rd March, 2020 and filed on 4th March, 2020. The Appellant stated that the 3rd Respondent in paragraph 4.3 of its brief of argument argued that the lack of competence to sue or claim becomes a feature in the case that robs

the Court of the jurisdiction to entertain the case and relied on CHARLES & ANOR VS. GOVERNOR OF ONDO STATE & ORS (supra) and CHUKWUEGBO VS. AGU & ORS (supra). Counsel for the Appellant then submitted that the above decisions decided that once a trial Court lacks jurisdiction, that the Appellant is also divested of locus standi and as such, are untenable. Counsel for the Appellant maintained that this Court has the jurisdiction to hear this matter by virtue of Section 240 of the Constitution of the Federal Republic of Nigeria.
Finally, the Appellant argued that in reply to paragraph 4.23 and 4.36 of the 3rd Respondent Brief that issue of the Appellant not being a prosecuting agency and could not maintain a case under Section 24(e) of the Electoral Act 2010, was never apparent from the records before the Court so as to be accommodated under the exceptions on when a Court can raise an issue suo motu and proceed to resolve same without giving parties opportunity to address it on same. Counsel for the Appellant again relied on EFFIOM VS. C.R.O.S.I.E.C. (2010) ALL FWLR (PT. 552) 1610. The Appellant’s counsel urged the Court to allow this appeal and set aside the decision of the trial Court.

The 1st Respondent also filed a reply on points of law to the Appellant’s Reply to the 1st Respondent’s Notice of Preliminary objection on the 16th March, 2020 and argued by its Counsel Abdulwahab Muhammed Esq.

The 1st Respondent’s Counsel in the said reply on point of law argued as follows:
The 1st Respondent’s Counsel argued that the Appellant does not appreciate the purport of the provisions of Section 285(9) of the Constitution. Counsel further argued that the wordings of the section are unequivocal and does not admit any exception once the subject matter is a pre-election matter.

The 1st Respondent’s Counsel also argued that although the provision of Section 24(e) of the Electoral Act 2010 (as amended) contains an element of fraud, once the section is sought to be applied to facts or dispute arising from a pre-election matter, the Provision of Section 285(9) takes pre-eminence over the provisions of the Electoral Act. On this point, Counsel cited the case of OBI VS. INEC & ORS (2007) LPELR – 24347 (SC).

The 1st Respondent’s Counsel also argued that fraud as a ground for disqualifying a candidate in an election is already provided for in Section 182(1)(d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), so in spite of this provision, once the issue of fraud is tied to a pre-election matter, the provision of Section 285(9) holds sway. He further argued that the act of fraud has not even been proved by the Appellant neither has the alleged offender been indicted or prosecuted before any Court in Nigeria on any purported allegation of fraud.

In conclusion, the 1st Respondent’s Counsel further argued that the cases of EGWUINI & ORS VS. AGADA & ANOR and LAWAL & ORS VS. EXECUTIVE GOVERNOR LAGOS STATE cited by the Appellant’s Counsel in his Reply Brief are markedly different from this instant appeal which is clearly an appeal arising from a pre-election matter therefore, they are irrelevant and inapplicable to the facts of this appeal and therefore urged this Court to discountenance same.

DECISION ON THE PRELIMINARY OBJECTION FILED BY THE 1ST RESPONDENT
In determining the Notice of Preliminary Objection, I have distilled a sole issue for determination thus:

“Whether this Court has the Jurisdiction to entertain this Appeal in view of the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration).”

In dealing with this issue, it is important that I examine the originating summons of the Appellant filed at the trial Court to determine when the cause of action arose and Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration) to determine whether the suit leading to this appeal was filed within the time limit to file same.

The Straud’s Judicial Dictionary 4th Edition defined cause of action as “the entire set of facts that gives rise to an enforceable claim.”
In the case of OGBIMI VS. OLOLO (1993) 7 NWLR (PT. 304) PAGE 128 at 136, it was held that:
“A cause of action, is, in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaints and the consequent damage.”
In the case of AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR (PT. 127) PAGE 369 AT 382 – 383, it was held that:
“when facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligation exists side by side, a cause of action is said to have accrued.”
Finally, in the recent Court of Appeal case of OBIKA VS. OBIKA (2018) LPELR-43965, it was defined thus:
“A cause of action generally refers to every fact which is necessary for the plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle or

aggregate of facts which the law recognizes as giving the plaintiff a substantive and recognized right to make the claim against the relief or remedy being sought. Thus, the verifiable factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right, capable of being claimed or enforced against the defendant. In other words, the eventual factual situation relied upon by the plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the defendant that gives to the plaintiff his cause of complaints is a cause of action.”

Enough said, the question that must be answered is: when did the cause of action arise in the instant suit giving rise to this Appeal?

This is a pre-election matter and thus, strict adherence must be had to the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration). Its provision is crystal clear and unambiguous and it states thus:

“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.”

Now looking at the Originating Summons filed by the Appellant at the trial Court at pages 3 – 16 of the Record of Appeal, especially the affidavit in support of the originating summons in pages 9 – 16 of the Record of Appeal, when the cause of action arose can be determined therefrom.

It is also important at this point to examine paragraphs 12(c) which paragraphs in my considered view shows when the cause of action in the suit leading to this instant appeal arose:
“12 (c) That the 1st Defendant’s candidate (Yahaya Bello) ought not to have been qualified by the 2nd defendant to be the flag bearer of the 1st Defendant, having been fully indicted by the same 2nd defendant to have Registered twice as a voter with the 2nd Defendant.”

The above clearly shows that the cause of action arose at the point where the 3rd Respondent was made the flag bearer of the 1st Respondent pursuant to the 1st Respondent’s primary election conducted on the 29th August, 2019

(This date can be seen from the document titled “Report on 2019 Kogi Governorship primary election of All Progressive Congress (APC) conducted on 29th August, 2019 in Kogi State at page 173 of the Record of Appeal.

Now that it can be clearly seen that the date the cause of action arose is 29th August, 2019, it is also important to look at the date in which the Originating summons was filed to determine if the action was filed within the time as prescribed for under Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 as amended (4th Alteration).
Looking at the Originating Summons, it is clear that the action was filed on the 14th of October, 2019 which is 46 days from the 29th day of August, 2019 when the cause of action arose and a clear breach of the 14 – day period stipulated for the filing of pre-election matters by Section 285(9) of the Constitution of the Federal Republic of Nigeria (4th Alteration).
The Appellant’s Counsel in paragraph 5.0 of his argument in Reply to the Notice of Preliminary Objection did not also contest that the action was filed outside the 14 day period stipulated for filing a

pre-election matter of which this instant appeal falls under. However, he argued that there is an exception to the limitation period provided for under Section 285(9) of the Constitution of the Federal Republic of Nigeria (4th Alteration). He further argued that the said Section 285(9) just like every other limitation law, is circumscribed by fraud and that fraud is an exception to every limitation law.
This argument of the Appellant’s Counsel now brings me to examine the provision of the said Section 285(9) again:
“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 decision or action complained of in this suit.”
It was important for me to emphasize as above because, it is clear from the provisions of the said Section 285(9) that it applies to every pre-election matter of which this instant appeal falls under and it is also clear and self-sufficient not accommodating any exception.

Moving forward, I am now at the point where I make a finding as to whether the action is statute barred considering also the examination and findings above. The Supreme Court in the case of ARAKA VS. EJEAGWU (2000) LPELR – 533(SC) reiterated as follows:
“…statute-barred” simply means barred by a provision of the statute. It is usually as to time i.e. the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified

in the statute. Any action taken after or outside the specified limit or period is of no avail and has no valid effect. The bar can be lifted or the limit extended only if the statute allows it to be done. Where there was no such extension, the action carried out will be invalid, and the Court will treat as such.” (Emphasis mine)
From the above authority and my emphasis above, it is clear that any action taken after the specified period stipulated by the provision of statute is not only invalid. On the other hand, only the statute can provide an extension for the limitation period. Therefore, the action leading to this appeal having been filed outside the statutory period of filing same is statute barred.
Now that I have found that the action is statute barred, what is the effect where an action is statute barred?
The Supreme Court held in the case of HASSAN VS. ALIYU & ORS (2010) LPELR – 1357(SC) thus:
“When an action is statute-barred, the 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 limitation had elapsed. An action commenced after

the expiration of the statutory period within which an action must be brought is not maintainable. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being properly instituted before the Court.” Per Adekeye, J.S.C. (Pp. 86-87, paras. G-C).
It would be instructive here to also cite the authority of my learned brother Sanga, JCA in the case of SPDC VS. WEST (2018) LPELR – 44290(CA) wherein it was reiterated interalia:
“I have to state that the effect of an action being statute barred means that that action is rendered incompetent and deprives the Court of the requisite jurisdiction to hear and determine same….”
This simply follows that the effect of an action that is statute barred is that it robs the Court of the jurisdiction to entertain same.
In conclusion therefore, it is my well-considered view that the action of the Appellant is statute barred as at the time it was filed having been filed 46 days outside

the 14 – day period stipulated in Section 285(9) of the Constitution (4th Alteration) for the filing of a pre-election matter under which this instant appeal falls and thus robing this Court of the jurisdiction to entertain same.

I here uphold the Notice Preliminary Objection filed by the 1st Respondent, and hold that the action filed at the trial Court was incompetent. In the circumstances, this appeal is also incompetent and it is hereby struck out.

Assuming I am wrong and the preliminary objection fails, I will hereby proceed into determining the issues raised in the substantive appeal.

THE MAIN JUDGMENT
Having thoroughly read and digested the briefs filed by the Appellant, 1st Respondent, 2nd Respondent and 3rd Respondent respectively, I hereby, adopt the issues for determination raised by the Appellant.
1. Whether the judgment of the trial Court was not delivered without jurisdiction consequent upon the failure to determine the Originating Summons filed by the Appellant in the proceedings before the trial Court which gave rise to this Appeal, same thereby being liable to be set aside by the Honourable Court. (Distilled from Grounds Grounds 4 and 7).

Whether from the totality of the evidence led before the trial Court, the trial Court was right in its holding that the Appellant lacks the requisite locus standi to institute this action upon which this appeal is predicated. (Distilled from Grounds 1, 2, 3, 5 & 6).ISSUE ONE
Whether the judgment of the trial Court was not delivered without jurisdiction consequent upon the failure to determine the Originating Summons filed by the Appellant in the proceedings before the trial Court which gave rise to this Appeal, same thereby being liable to be set aside by the Honourable Court.Under this issue, I can see that the Appellant’s counsel has argued vehemently that the trial Court had erroneously held on page 1740 Volume 2 of the Records of appeal that the Appellant has no locus to institute the action and misapplied the decision of the Apex Court in EMEZI VS. OSUAGWU by refusing to determine the Originating summons of the Appellant.
The holding of the trial judge is hereby reproduced:
“Lack of locus has its effect in law and this has been stated severally; see for example Emezi v Osuagwu (Supra).

Therein the Court held that when a plaintiff has been found not to have the standing to sue, the question whether other issues in the case had been properly decided or not does not arise. This is because, the trial Court had no jurisdiction to entertain the claim. The correct position of the law therefore is that, where a plaintiff is held to lack the locus standi to maintain his action, the finding goes to the jurisdiction of the Court and denies its jurisdiction to determine the action. The proper order to be made in such a situation therefore is strike out the claim.”

It was further argued that the issue of locus standi never arose in the case of EMEZI VS. OSUAGWU (SUPRA) and was not a live issue in the case.

This brings to fore the following question; Is the Appellant saying that the trial Court, having discovered and decided that the Appellant did not have the locus standi to institute the action, must have still gone ahead to determine the case on its merits? If this is the position maintained by the Appellant, then it is crystal clear is it is unfounded in law. While it is the accepted practice that a lower Court should pronounce on all

issues before it so as to afford a higher Court a view of the pronouncement before rendering its own view, the judgment of the lower Court will not be rendered a nullity and set aside simply because, after finding that it had no jurisdiction, it refused to deal with the substantive matter, in this case, the Originating Summons.
I have thoroughly read the Supreme Court case EMEZI VS. OSUAGWU (SUPRA) and the term “locus standi” was explained as the legal capacity based upon sufficient interest in a subject matter to institute proceedings in a Court of law to pursue a specified cause. It is the legal capacity to institute an action in a Court of law.
It was further held that:
“It is not in doubt that locus standi affects the jurisdiction of the Court before which an action is brought, and if there is no locus standi to file the action in the 1st place, the Court cannot properly found jurisdiction to entertain the matter. See Central Bank of Nigeria & Ors. v. N.A.B. Kotoye (1994) 3 NWLR (Pt.330) 66 at 73.” PER OGUNTADE, JSC (P.27, Paras. E-G)

It was held also that:
“It follows therefore that when a plaintiff has been found not to have the standing to sue, the question whether other issues in the case had been properly decided or not does not arise. This is because, the trial Court has no jurisdiction to entertain the claim. The correct position of the law therefore is that where a plaintiff is held to lack the locus standi to maintain his action, as I have found in this case, the finding goes to the jurisdiction of the Court and denies its jurisdiction to determine the action. The proper order to be made in such a situation therefore is to strike out the claim: see Oloriode v. Oyebi (1984) 1 SCNLR 390; Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669; Momoh & Anor v. Olotu, supra, and Madukolu v. Nkemdilim, supra.” Per Akintan, JSC (P.21, Paras. A-D)
The law is clear, the issue of jurisdiction is the lifeline, the bedrock, the power source of any matter before the Court.
The Supreme Court in FLORENCE ACHONU VS. OLADIPO OKUWOBI (2017) 14 NWLR (PT. 1584) 142 AT 171, defined jurisdiction to simply mean the power and authority of the Court, recognised by law to adjudicate over a controversy. Similarly, jurisdiction, as the authority which a Court has to decide

matters that are litigated before it or take cognizance of what is presented in a formal way for its decisions. Such authority is controlled or circumscribed by the Statute which created the Court or by a condition precedent by a legislation which must be fulfilled before the Court can entertain the suit.
The importance of jurisdiction cannot be overemphasized. The jurisdiction is the life wire of a Court as no Court can entertain a matter where it lacks jurisdiction. In the same vein, the Apex Court in UTIH & ORS VS. ONOYIVWE & ORS (1991) LPELR – 3436 (SC), stated that jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.
Now, the Appellant’s counsel further went ahead to cite the case of FAAN VS. WAMAL EXPRESS SERVICES (NIGERIA) LTD (2011) LPELR – 1261 (SC) and CHIEF OF NAVAL STAFF & ANOR VS. TSENONGO (2018) LPELR – 45883, arguing that it is the law that a Court of law

has neither jurisdiction nor discretionary power to refuse to take a pending process before it, whatever maybe its pre-trial opinion on it. The Appellant counsel further stated that no matter how stupid, reckless, irregular, aberrant or unmeritorious such a process is, the Court must hear it and rule on it.
I am taken aback and shocked at the submission of Appellant counsel. I am in fact disappointed to say the least. Is the Appellant counsel now comparing an Originating process to interlocutory applications filed during the pendency of the case? This is unbelievable.
I have taken my time to read the case of CHIEF OF NAVAL STAFF & ANOR VS. TSENONGO (2018) LPELR – 45883 which the Appellant’s counsel has placed heavy reliance on in arguing that the trial Court had the obligation by law to decide the merit of the Originating summons even though it had been held that the Appellant lacked the locus standi to initiate the action, thus, robbing the Court of its jurisdiction.
In the case of CHIEF OF NAVAL STAFF & ANOR VS. TSENONGO (SUPRA), the Respondent had sued the Appellant at the trial Court for unlawful termination of employment

before the National Industrial Court. The Appellants in this case filed two motions; A motion on notice for an order extending the time for the Appellants to file their statement of defence, conditional memorandum of appearance and a deeming order. The second motion was seeking for an order, directing parties to file their pleadings. The Appellants moved the two motions on the same day and the trial judge ruled on only the first motion, dismissing it. Aggrieved, the Appellants appealed and the Appeal Court held that:
“It is the bounden duty of the Court to hear and determine all applications pending before it, before making a final pronouncement by way of delivering of judgment. It was further held that it is immaterial that an application maybe stupid, frivolous, malicious or an abuse of judicial process. An exception in proper circumstances is the exercise of the punitive jurisdiction of the Court against a contemnor of a Court order who is expected to purge himself of the contempt before he could be heard.”
The case of CHIEF OF NAVAL STAFF & ANOR VS. TSENONGO (SUPRA) which I have just carefully dissected and explained is totally

different in facts and issues as the instant case giving rise to this appeal. There are no similarities at all. The facts are not all on fours; not an iota of resemblance. The issue of the jurisdiction of the Court was never in question in the above case neither was the locus standi of the Plaintiff challenged.
What does it mean to distinguish a case from another? It simply means to spot an important difference between the instant case and the one cited and relied on in facts and using such difference as a solid reason for departing and disagreeing with the decision of the earlier decided case. It was further established by a learned author, Abiola Sanni in his book “Introduction to Nigerian Legal method (Ile-Ife) OAU Press Limited (2006) at page 179” that:
“In the flux of human existence, it is extremely difficult to find two cases with the same facts. It is the duty of the judges to determine which facts are covered by the previous case and which are not. This is known as distinguishing.”
Now, there are a plethora of cases where it has been held that once the issue of the jurisdiction has been raised timeously and the

Court has decided that it does not have jurisdiction, the appropriate order that should be made is that the case be struck out. It will amount to an exercise in futility to determine the case before it when there is no jurisdiction.
In the case of AKINJOKUN VS. LUFTHANSA GERMAN AIRLINES & ANOR (2018) LPELR – 46729(CA) it was held that “Where a Court lacks jurisdiction as in the instant case, it is unnecessary to consider other issues. See FCDA VS. SULE (1994) 3 SCNJ 71 (P. 30, Paras. B – C)” Per Jauro, JCA
Also, in the case of UPS (NIG) LTD VS. UMUKORO (2016) LPELR – 45188(CA) it was held that:
“It is settled that jurisdiction is the blood and life of the Court, and where a Court lacks jurisdiction in a given case, any decision by the Court thereon is an exercise in futility no matter how well it might have otherwise been considered.” Per Akeju, JCA (Pp. 21 – 22, Paras. F – A)
The Supreme Court held in the case of IZEZE VS. INEC & ORS (2018) LPELR – 44284(SC) that:

“Once a Court lacks jurisdiction as a result of a fundamental defect in the originating process all that can be done is to strike out the case. If it is still the desire of the plaintiff to proceed with his claim, he can only do so by filing a fresh action. In the light of all that I have been saying the cross appeal is not worth considering in view of my conclusions in the main appeal.” Per Rhodes-Vivour, JSC (P. 24, Paras. E – G)
Finally, it was held in the case of NATIONAL ELECTRIC POWER AUTHORITY VS. BOT & ORS (2007) LPELR – 8100 (CA) that:
“It is trite law that where a Court lacks jurisdiction, the trial, no matter how well conducted, becomes a nullity ab initio.” Per Ndukwe-Anyanwu, JCA (P. 20, Paras E – F).
From the above cited cases, I make bold to say that the trial Court was not wrong when it refrained from going into the merits of the case having decided that the Appellant lacked the requisite locus standi to institute the action. All the seven and more cases cited by the Appellant’s counsel to buttress his arguments are highly irrelevant as they all do not apply to the instant case.

The Appellant’s counsel submitted in paragraph 3.16 of the Appellant’s brief of argument that the failure of the Court to determine the merits of the case is fatal to the entire proceedings of the trial Court as same amounts to a breach of the Appellant’s constitutional right to fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999. He has cited the case of ONWUDINJO VS. STATE (2014) LPELR – 24061 to support his assertion.
It will be a waste of the precious time of this Court to belabor this issue raised. The case cited by the learned counsel is inapplicable to the instant case, and the submissions made cannot stand. The issue of jurisdiction in this instant case distinguishes it from the above cited case. Let me state for the avoidance of doubt that, where an issue in which a lower Court decides such as jurisdiction is the live issue before it, and a Court of Appeal sets aside the decision, then there would be an order for rehearing and thus there cannot be said to be a miscarriage of justice occasioned by the failure of the lower Court to consider the substantive matter, and it cannot amount to a denial of fair hearing. In the instant case, where the lower Court arrived at the view that the

only live issue is enough to dispose of the entire suit, this Court will not impose upon it the obligation to consider all the other issues posed by the Appellant herein. Again, prudence may dictate that other issues raised may not be pronounced upon where it might prejudge a retrial. See 7UP BOTTLING CO LTC VS. ABIOLA & SONS BOTTLING CO LTD (2001) FWLR (70) 1611 SC.

I hereby affirm the position of the learned trial judge on this issue. Issue one is hereby resolved against the Appellant.

ISSUE TWO
Whether from the totality of the evidence led before the trial Court, the trial Court was right in its holding that the Appellant lacks the requisite locus standi to institute this action upon which this appeal is predicated.

As it relates to this issue, counsel for the Appellant maintained that the Appellant demonstrated her locus standi in the Originating Summons before the trial Court. Furthermore, counsel submitted that this case is founded on Sections 31(5) and 87(9) Electoral Act, 2010 (as amended) as the act of suppressing the act of double registration of the 3rd Respondent while filing INEC CF001 is tantamount to supplying false

information while section 87(9) allows the Appellant to challenge the nomination and participation of the 3rd defendant in the November 2019 Kogi election.

At this juncture, it is pertinent to reproduce the averments in the originating summons which the Appellant argues, demonstrate locus standi and the two Sections of the Electoral Act mentioned above and relied on by the Appellant. These are reproduced respectively below:
1. The Appellant is an indigene of Kogi State, who will be affected by governance in Kogi State as shown in the Originating Summons.
2. The Appellant has a passion for the development of Kogi State, and has been a strong advocate for the resuscitation of the Ajaokuta Steel Company situated in Ajaokuta town, within her local district in Kogi State. This advocacy climaxed on the 1st of March, 2018, when the Appellant made an expository presentation of facts on the floor of the National Assembly’s plenary debate on the Nigeria’s steel sector.
3. Shortly after the Appellant’s shocking revelations and call for action, the National Assembly took urgent steps to amend the privatization bill by expunging

Ajaokuta steel from the concession list. The NASS also created a 1billion dollars lifeline funding for revival of Ajaokuta steel company and the commencement of the drafting of a set of laws to protect the development of the Nigerian steel sector.
4. The Appellant is the first woman in the modern Ebira nation and indeed first Nigerian non-engineer to receive the presidential award from the Nigerian society of Engineers, in December, 2017, for her efforts and advocacy on the revival of the Ajaokuta Steel project.
5. The Appellant also instituted Court actions against both Federal and State Government over the popular Ogaminana massacre.
6. The Appellant is an eligible voter in Kogi State who is affected by all acts of governance in Kogi.
7. The Appellant was the flag bearer of the Social Democratic Party (SDP) in the keenly contested election for the Senatorial seat of Kogi Central Senatorial District in the general election, conducted in February, 2019.
8. The Appellant was elected in the primary election conducted by the Social Democratic Party as the flag bearer and candidate of the party in the gubernatorial election that held 16th of November, 2019.

Section 31(5):
“A person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.”
Section 87(9):
“Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State, for redress.”

From the foregoing, the question this Court must answer is; whether by virtue of Sections 31(5), 87(9) of the Electoral Act 2010 (as amended) and the averments contained in the Originating Summons reproduced above, has the Appellant established her locus standi?

First and foremost, I must state that issue of locus standi was discussed in the earlier part of this judgment with the aid of EMEZI VS. OSUAGWU (SUPRA) however, this issue demands an in-depth explanation.

It is settled law that locus standi denotes the right of a party to bring an action or to be heard in a given forum. Hence, simply put, locus standi is the legal capacity or right of a party to institute an action in Court or a tribunal.

The general approach therefore is that the plaintiff/claimant must have something to show, prima facie, that the action of the defendant has adversely affected his own right or interest, in the subject matter of the claim. If a party is found not to have locus standi, then it delimits the jurisdiction of the Court to entertain the complaint. This means that no Court is obliged to provide a remedy for a claim in which the applicant has a remote, hypothetical or no interest.
In NWORIKA VS. ONONEZE-MADU & ORS (2019) LPELR – 46521(SC) the apex Court in stating what a party must show to establish locus standi held that
“With regard to the question “whether the Appellant has locus standi to institute this action,” the position of the law is that a person has locus standi to sue in an action if he is

able to show to the satisfaction of the Court that his rights and obligations have been or are in danger of being infringed. In other words, the plaintiffs’ statement of claim must disclose sufficient legal interest and the plaintiff must show how such interest arose in the subject matter. See Fawehinmi v. Akilu (1987) 4 NWLR (Pt.67) 797. This is sine qua non to the exercise of jurisdiction by the trial Court to hear the matter on the merit. See Arowolo vs. Akaiyejo (2012) 4 NWLR (Pt. 268) …”

To the nature of locus standi the apex Court in the same NWORIKA VS. ONONEZE-MADU & ORS (SUPRA) held that:
“Locus Standi is a condition precedent to instituting an action before a Court of law. It is a legal voice with which the Plaintiff amplifies his legal rights over and above those of ordinary men. The issue of locus standi constitutes a condition precedent to the institution of any action before a Court of Law. For an action to be maintainable, the person instituting it must have legal capacity, otherwise the Court is robbed of necessary jurisdiction to entertain it.”

Again, I ask from an in-depth reading of the averments of the Appellant, the two sections of the Electoral Act and from the definition of locus standi given above, can it in all actuality be said that the Appellant has locus standi? The trial judge answered NO to the question and I totally agree with the decision of the trial judge.

Firstly, taking Section 87(9) which if read properly deals with the selection or nomination of a candidate by parties. How does the Appellant expect this Court to believe that aspirant A from party C can challenge the nomination of aspirant B from party D? Certainly that is not the intention of the section. The simple question to ask is can an individual who is not a member of a party be allowed to challenge the nomination of an aspirant of the party? To my mind, it is unlikely that is the meaning of Section 87(9). See TARZOOR VS. IORAER & ORS (2016) 3 NWLR (1500) 463; SHINKAFI & ORS VS. YARI & ORS (2016) 7 NWLR (PT 1511) 340.

Additionally, I am in total agreement with the decision of the trial Court’s judgment contained in pages 1735 of the records of Appeal where he stated that:

“Upon stating the grounds, the Plaintiff also stated the particulars of fraud. I cannot therefore agree with the learned Counsel for the 1st Defendant that what the plaintiff is merely challenging is just the qualification, nomination, sponsorship and candidacy of the 3rd defendant in the 16th November, 2019. This postulation seems to shift the beacon stones of the subject matter of this case. Simply put, there is no nexus between the subject matter of the case and the provisions of Section 87(9) of the Electoral Act 2010 (as amended)”
Indeed, it is hard to see the nexus of Section 87(9) and the case of the Appellant which is dealing with fraud.
Secondly, as it pertains to Section 31(5) of the Electoral Act 2010 (as amended) as the basis of locus standi, when one goes through the Originating processes of the Appellant, one will find just as the trial Judge found that it is “narrowed and predicated on Section 24(1)(e) of the Electoral Act 2010 (as amended)”. Now relating Section 31(5) to the case at hand, the trial judge stated on page 1736 of the records of Appeal and I vehemently agree that “it is to be stated that S. 31(5)of the Electoral Act 2010 (as amended) does not deal with fraud but false

declaration and the phrase ‘fraud’ is not synonymous with the phrase ‘false declaration’. In addition to that, I find no iota of any issue of false declaration in the questions for determination, reliefs, grounds for action and particulars of fraud in the originating processes.”

Furthermore, the trial Judge again rightly held at pages 1738 – 1739 of the records of Appeal that:
“…it is clear that S.31(5) of the Electoral Act 2010 (as amended) creates a civil cause of action and gives locus standi to a person whose cause of action is founded therein…It is pertinent to state that Section 24 of the Electoral Act 2010 is not framed in the same manner, style and intent and there is nothing linking the two provisions to each other…. Contrary to Section 31(5), it can be seen that neither Section S.24 in general nor S24(1)(e) of the Electoral Act 2010 (as amended) in particular creates any civil cause of action. In other words, S24(1) of the Electoral Act 2010 (as amended) creates a criminal offence and liability for the offender subject to conviction. It presupposes an action where the

allegation against a person pursuant to the provisions are proved beyond reasonable doubt for any finding to be made in order to ground the conviction.”

I am on all fours with the reasoning above and the argument made by the Appellant that the act of suppressing the double registration of the 3rd Respondent while filing form INEC CF001 is tantamount to supplying false information as contemplated by Section 31(5) of the Electoral Act 2010 (as amended) goes to no moment. The act of double registration has not been proved and the same act of double registration as captured in Section 24(1)(e) is in fact a criminal offence that the Appellant does not have the capacity or has not shown this Court that it has the capacity to prosecute.

Finally, Counsel to the Appellant maintained that the issue of a litigant not being a prosecuting agency premised on Section 24(1)(e) of the Electoral Act (as amended) was raised suo motu by the trial Court and not the parties. To buttress this issue the Appellant cited a plethora of cases which are right as they relate to the line of argument that the Appellant was peddling.

However, it is important to state that a Judge is at liberty to draw inferences which are logical and reasonable deductions from evidence on record. See IKENTA BEST (NIG) v. ATTORNEY-GENERAL, RIVERS STATE (2008) 6 NWLR (PT. 1084) 612; SAVANNAH BANK OF NIGERIA PLC VS. CENTRAL BANK OF NIGERIA AND 2 ORS (2009) 6 NWLR (PT. 1137) 237.

Furthermore, where in the overall assessment of evidence before a Court, an opinion crystallizes into an issue, the Court would not be said to have raised the issue suo motu. This is because, it is reasoned by the apex Court in the case of ENEKWE VS. IMB (NIG) LTD (2006) 11 – 12 SC 3, that the use of words (capable of categorization into an issue), in the opinion of a judge where germane to the evaluation of the facts of a case cannot amount to raising an issue suo motu.

Looking at the judgment of the trial Court which I have reproduced in earlier parts of this judgment, it is clear that the trial Judge simply made logical and reasonable deductions from the evidence on record. The fact that the Court found that the Appellant by Section 24(1)(e) has no power to prosecute the 3rd Respondent and has not shown any fiat allowing it to prosecute goes to the issue of

lack of locus standi which in turn as mentioned before goes to jurisdiction.

Issue two is resolved against the Appellant and in favour of the Respondents.
In a nutshell, I find no merit in this Appeal. The appeal is hereby dismissed. Parties are to bear their respective costs.

STEPHEN JONAH ADAH J.C.A.:, I have had the benefit of reading in draft the judgment just delivered by my learned brother Mohammed Baba Idris, JCA.

I am in agreement with his reasoning and conclusion that this appeal is lacking in merit. I, for the same reasoning find the appeal lacking in merit and I do dismiss the appeal.
I abide by the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA. My lord in a succinct and concise manner resolved all issues presented for resolution in this appeal. I agree with him and I have nothing more to add.
I also agree with the orders made in the lead judgment and adopt them as mine.

Appearances:

Chief M. Ozekhome, SAN with him, B. Igbanoi Esq., M. Sylvanus Esq., A. Balogun Esq. and C. E. Wilson-Okereke Esq. For Appellant(s)

Mohammed Esq. with him, G. P. Dangana Esq. – for the 1st Respondent
W. Kuku Esq. with him, A. Onyeri Esq. and S. M. Danbaba Esq. – for the 2nd Respondent
M. Y. Abdullahi Esq. with him, M. O. Obakpolor Esq. – for the 3rd Respondent For Respondent(s)

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