ALAIBE v. PDP & ORS (2020)

ALAIBE v. PDP & ORS

(2020)LCN/14230(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Tuesday, May 12, 2020

CA/0W/113/2020

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Between

CHIEF NDUTIMI ALAIBE APPELANT(S)

And

PEOPLES DEMOCRATIC PARTY (PDP) 2. SENATOR DOUYE DIRI 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 4. EMBELEAKPO ALALE (For Himself And Representing The Elected Local Government Chairmen, Vice Chairmen, Councilors Of The PDP Allowed To Be Delegates At The Elective State Congress Of The PDP In Bayelsa State Held On The 3rd Of September, 2019) 5. DOUBRA KUMOKOU (For Himself And Behalf Of The 3 Ad Hoc Delegates Allowed To Be Delegates At The Elective State Congress Of The Peoples Democratic Party In Bayelsa State) RESPONDENT(S)

RATIO

THE NATURE AND ESSENCE OF PRELIMINARY OBJECTION

By its very nature, a preliminary objection deals with law, contending that a process has not complied with an enabling law or rule of Court and should be struck out; AG Federation v ANPP (2003) LPELR-630(SC); Igbeke v Okadigbo (2013) LPELR-20664(SC). As described in Efet v INEC (2011) 1 SCNJ 179, and reaffirmed in APC v INEC (2014) LPELR-24036(SC), per I.T. Muhammad, JSC (now CJN), at pages 18 – 19 of the E-report, said:
“The aim/essence of a Preliminary Objection is to terminate at infancy, or as it were, to nip in the bud, without dissipating unnecessary energies in considering an unworthy or fruitless matter in a Court’s proceeding. It, in other words, forecloses hearing of the matter in order to save time.”Sani v. Okene LG Traditional Council & Anor (2008) LPELR 3003(SC); Wayo & Anor v. Tyough & Ors (2019) LPELR-48779(CA).
A preliminary objection must therefore raise issues of law that would or could terminate the proceedings, if upheld. PER OTISI, J.C.A.

FACTORS THAT CONSTITUTES ABUSE OF COURT PROCESS

Further, what constitutes an abuse of Court process has been defined as the improper and tortuous use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process’s scope; Ogboru & Anor v. Uduaghan & Ors (2013) LPELR-20805(SC).
In Nnatuanya v. Pharmacist Council of Nigeria (2017) LPELR 43596(CA), this Court, per Nwosu-lheme, JCA, listed instances of abuse of Court process to include the following:
(a) Instituting multiplicity of actions on the same subject matter against the same opponent on the same issue.
(b) Instituting multiplicity of actions on the same subject matter between the same parties even when there exists a right to begin the action.
(c) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
(d) Where two similar processes are used in respect of the exercise of the same rights for example a cross appeal and a Respondent’s Notice.
(e) Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness.
(f) The use of a judicial process or lawful procedure to attain unlawful result i.e. deliberate use of judicial process to pervert the legal system.
(g) A party or its representative in interest duplicates a Court process.
(h) Use of Court process to shield self against criminal investigation or criminal prosecution.
The arguments of the 5th Respondent do not reveal that the present appeal fits into the garb of abuse of Court process, as judicially defined. PER OTISI, J.C.A.

THE IMPORTANCE OF JURISDICTION OF THE COURT TO ADJUDICATE ON A MATTER

It is a rudimentary Principle of law that the jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. Jurisdiction has variously been described as the life blood, the life wire, the fiat, the stamp of authority which necessarily enures to the Court or tribunal and empowers it to adjudicate; Buremoh v Akande (2017) LPELR-41565(SC); Isaac Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (PT 1247) 465, (2011) LPELR-2185(SC), (2011) 2-3 SC (PT.1) 46; Madukolu v Nkemdilim (supra), (1962) 2 NSCC 374.

A Court is said to have jurisdiction and therefore competent to entertain a suit when: –
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other,
b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
c) The case comes before a Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise ofjurisdiction.
See: Madukolu v Nkemdilim (supra); FBN Plc v Obande & Sons Enterprises & Ors (1998) 2 NWLR (PT 538) 410. Where a Court does not have jurisdiction to hear a matter, the entire proceedings no matter how well and decided would simply amount to a nullity. PER OTISI, J.C.A.

STATUTE OF LIMITATION

“Where a statute of limitation prescribes period within which on action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed: See the cases of Eboigbe v N.N.P.C. (1994) 5 N.W.L.R. (Pt.347) 649: Odubeko v. Fowler (1993) 7 N.W.L.R. (Pt.308) 637, Sanda v. Kukawa Local Government (1991) 2 N.W.L.R. (Pt.174) 379: Ekeogu v Aliri (1991) 3 N.W.L.R. (Pt 179) 258.
The rationale or justification supporting the existence of statutes of limitation includes the following: –
(1) that long dominant claims have more of cruelty than justice in them – Lloyd v. Butler (1950) 1 K.B. 76 at 81 – 82,
(2) that a defendant might have lost the evidence to disprove a stale claim: Jones V. Bellgrove Properties Ltd. (1949) 2 K.B 700 at 704
(3) that persons with good causes of action should pursue them with reasonable diligence. Board of Trade V. Cayzer Irvine & Co. (1927) A.C.610Zof 628. PER OTISI, J.C.A.

WHEN DOES THE PERIOD OF LIMITATION BEGIN TO RUN

The period of limitation begins to run from the date on which the cause of action accrued. To determine whether an action is statute barred, all that is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred: See the case of Egbe v. Adefarasin (1987) 1 N.W.L.R. (Pt.47) 1 at 20-21.”
These time hallowed principles of the law have been restated time without number and the same position maintained in myriad judicial pronouncements. The originating process in any action, whether writ of summons and statement of claim or Originating Summons, as in the instant case, would reveal when the alleged wrong which gave rise to the cause of action arose. The date when the cause of action arose is then placed beside the date on which the originating process was filed. If the time on the originating process is beyond the period allowed by the applicable limitation law, then the action is statute barred; Woherem v. Emereuwa (2004) 6-7 S.C 161, (2004) ALL FWLR (PT 221) 1570 at 1581-1582; Military Administrator of Ekiti State & Ors v. Aladeyelu & Ors (2007) LPELR -1875 (SC). PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the decision of the Federal High Court, Owerri Division (the lower Court) Coram T.G. Ringim, J., delivered on March 10, 2020, dismissing the suit of the Appellant.

The facts leading to the appeal, as presented by the Appellant, are as follows: The Appellant was an aspirant in the elective State Congress (the primary election) conducted by the 1st Respondent on 3/9/2019 towards the nomination and sponsorship of its governorship candidate at the general election that took place on 16/11/2019. Upon the scheduling of its primary election for 3/9/2019, the 1st Respondent published a delegate list, designating the statutory delegates to participate in the said primary election. The 4th Respondent, who emerged as elected Local Government officials, comprising of the Chairman, Vice Chairman and Councilors respectively, from the eight Local Government Areas in Bayelsa State on the platform of the 1st Respondent on 10/8/2019, were listed as statutory delegates. It was the position of the Appellant that notwithstanding the fact that the 4th Respondent fell within

the category of statutory delegates in a State Congress, their privilege did not crystalize at the time of the election to enable them participate in an elective Congress, owing to the fact that their emergence was less than the mandatory 90 days prescribed by Article 25(1) of the 1st Respondent’s Constitution. The Appellant also challenged the emergence and participation of the 5th Respondent as Ad-hoc delegates in the State Congress.

Prior to the said primary election of 3/9/2019, Omotosho J. of the Federal High Court, Port Harcourt, Division, made an interim order in Suit No FHC/PH/CS/193/2019: CDR Koku Imanaagha & Ors v Peoples Democratic Party & Ors, directing the 1st Respondent to separate the ballot boxes of the statutory delegates, and of the 5th Respondent, made up of 315 Ad hoc delegates, pending the hearing and determination of the substantive suit, wherein the participation of the 5th Respondent in the elective congress was the subject of challenge. It was the Appellant’s complaint that the said order of Omotosho, J., was not obeyed by the 1st Respondent but it went ahead to conduct its primaries without separating ballot boxes, which ultimately

led to the return of the 2nd Respondent as the governorship candidate of the 1st Respondent in election of 16/11/2019. It was the Appellant’s case that it was the participation of the 4th Respondent as well as of the 5th Respondent in the elective State Congress of 3/9/2019, in spite of the subsisting Court Order of Omotosho, J., thereby violating the doctrine of lis pendens, inter alia, that culminated into Appellant’s cause of action at the lower Court. It was advanced for the Appellant that his suit was largely predicated on documentary evidence, of which he sought interpretation at the trial Court by Originating Summons.

The Respondents filed their respective counter affidavits in which they denied the depositions of the Appellant and gave their own perspectives of the case. The lower Court heard arguments thereon and dismissed the suit, on the ground, inter alia, that the contentions arising from the complaints of the Appellant could not be determined under the Originating Summons procedure.

Aggrieved by the decision of the lower Court, the Appellant lodged the instant appeal by Notice of Appeal filed on 19/3/2020 with 15 grounds of appeal, pages

867 — 885 of the Record of Appeal.

The parties filed Briefs of Argument. For the Appellant, the Appellant’s Brief was filed on 6/4/2020. The 1st Respondent’s Brief was filed on 16/4/2020. The 2nd Respondent’s Brief was filed on 27/4/2020. The 3rd Respondent’s Brief was filed on 22/4/2020. The 4th Respondent’s Brief was filed on 21/4/2020, while the 5th Respondent’s Brief was filed on 28/4/2020. The Appellant’s Reply Brief in response to the 1st Respondent’s Brief was filed on 21/4/2020. The Appellant’s Reply Brief in response to the 2nd Respondent’s Brief was filed on 1/5/2020. The Appellant’s Reply Brief in response to the 3rd Respondent’s Brief was filed on 27/4/2020. The Appellant’s Reply Brief in response to the Respondent’s Brief was filed on 27/4/2020 and the Appellant’s Reply Brief in response to the 5th Respondent’s Brief was filed on 1/5/2020.

At the hearing of this appeal on 5/5/2020, these Briefs were, respectively, adopted by I.A. Adedipe, SAN with A. Adedipe, Esq., D. Atogbo, Esq., Somina Johnbull, Esq. for the Appellant; Emmanuel Enoidem, Esq., with Jeny Egemba, Esq., for the 1st Respondent; C.V.C. Ihekwazu, SAN with C.C. Obiefule,

Esq., and U. V. Dim, Esq., for the 2nd Respondent; Mrs. Olachi Nwugo, Assistant Chief Legal Officer, INEC, for the 3rd Respondent; Chuks Uguru, Esq., for the 4th Respondent; and F.N. Nwosu, Esq., with J.C. Uwandu, Esq., L.U. Mgberede, Esq and D.C. Nnabugo, Esq., for the 5th Respondent.

Mr. Nwosu for the 5th Respondent had argued a Preliminary Objection in his Brief but he failed to adopt arguments thereon before Senior Counsel for the Appellant argued the appeal. Having failed to argue the said Preliminary Objection before the hearing of the appeal, the initial reaction of the Court was to deem the Preliminary Objection as having been abandoned; Carew v. Oguntokun & Ors (2011) LPELR 9355(SC); Nigerian Laboratory Corporation & Anor v. Pacific Merchant Bank Limited (2012) LPELR-7859(SC); Nsefik (Since Dead) & Ors v. Muna & Ors (2013) LPELR-21862(SC). However, as though suddenly roused from unfathomable slumber al fresco, Mr. Nwosu interrupted Senior Counsel for the Appellant, who was still on his feet, and sought to compel the Court to hear his Preliminary Objection, citing the decision of the Supreme Court in

Brittania-U (Nig.) Ltd v. Seplat Petroleum Development Co. Ltd & Ors (2016) LPELR-40007(SC).
In the said case, the Apex Court acknowledged that although it may be technically correct to deem as abandoned a preliminary objection, which was argued in a brief but which the respondent failed to formally adopt prior to the hearing of the appeal, present day emphasis has shifted from technical to substantial justice and the Court cannot abandon substance to chase shadow. In this light, and in consideration of the fact that it is customary to first consider and resolve a Preliminary Objection before delving into the merits of an appeal; Ekemezie v. Ifeanacho & Ors (2019) LPELR-46518(SC); Salami v. Muse (2019) LPELR-47038(SC) Petgas Resources Ltd v. Mbanefo (2017) LPELR-42760(SC), the Preliminary Objection of the 5th Respondent shall now be considered.

I should mention that after the appeal was argued on 5/5/2020 and the matter adjourned for judgment, Counsel for the 5th Respondent, on 8/5/2020, filed a list of authorities on whether the Court should entertain a preliminary objection which has been responded to, even if not formally moved at the hearing. I think it was

most inappropriate and overeaching for learned Counsel to have filed any further list of authorities after the appeal has been argued and adjourned for judgment.
The said list is hereby discountenanced.

Preliminary Objection
Mr. Nwosu for the 5th Respondent contended that the appeal was spent, frivolous and academic. The Appellant had sought an order from the lower Court directing that fresh primary elections be conducted for nomination and sponsorship of candidate for the governorship election in Bayelsa State, when the election has already been conducted, concluded and a winner declared. The order sought a legal impossibility. Authorities relied on included Section 178(2) of the 1999 Constitution, as amended, Section 25 (8) of the Electoral Actand a number of judicial pronouncements.

Mr. Nwosu also argued that the appeal was an abuse of Court process. The Relief (v) sought by the Appellant was self-defeating and not in line with extant provisions of the Electoral Act, 2010, as amended.

It was also Mr. Nwosu’s contention that the suit was filed outside the time prescribed by Section 285(9) of the 1999 Constitution, as amended. In

consequence, the Appellant had lost right of action over the res and the Court has no vires to hear the appeal. He urged the Court to uphold the Preliminary Objection and to dismiss the appeal.

Senior Counsel for the Appellant responded to the Preliminary Objection in his Reply Brief to the 5th Respondent’s Brief. He submitted that the arguments of the 5th Respondent sought to enthrone technicality over substantial justice. The 5th Respondent had failed to show that the appeal was merely academic but had responded to the live issues raised therein. Reliance was also placed on Ugba v Suswam (2012) LPELR 8635; AGF v ANPP (2004) LRCN 2671 at 2694; UNIBEN v Efionayi (2019) LPELR-46737. Further, no feature of the appeal had been shown to be an abuse of Court process. Senior Counsel for the Appellant did not respond to the issue of non-compliance with the provisions of Section 285(9) of the 1999 Constitution, as amended. The Court was however, urged to discountenance the arguments for the 5th Respondent and dismiss the Objection.

Resolution.
By its very nature, a preliminary objection deals with law, contending that a process has not complied with an

enabling law or rule of Court and should be struck out; AG Federation v ANPP (2003) LPELR-630(SC); Igbeke v Okadigbo (2013) LPELR-20664(SC). As described in Efet v INEC (2011) 1 SCNJ 179, and reaffirmed in APC v INEC (2014) LPELR-24036(SC), per I.T. Muhammad, JSC (now CJN), at pages 18 – 19 of the E-report, said:
“The aim/essence of a Preliminary Objection is to terminate at infancy, or as it were, to nip in the bud, without dissipating unnecessary energies in considering an unworthy or fruitless matter in a Court’s proceeding. It, in other words, forecloses hearing of the matter in order to save time.”
Sani v. Okene LG Traditional Council & Anor (2008) LPELR 3003(SC); Wayo & Anor v. Tyough & Ors (2019) LPELR-48779(CA).
A preliminary objection must therefore raise issues of law that would or could terminate the proceedings, if upheld.
However, a preliminary objection is not simply raised on a whim or relying on facts. If the objector relies on facts, then the objection cannot be heard at this stage as evidence must be led; Attorney General of the Federation v. All Nigeria Peoples Party & Ors (supra), (2003) LPELR-630(SC). A respondent

who alleges that an appeal seeks a legal impossibility in that the order(s) sought is/are not grantable, the appeal being spent, frivolous and academic must demonstrate this at the hearing of the appeal. It cannot be the ground for a preliminary objection.
Further, what constitutes an abuse of Court process has been defined as the improper and tortuous use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process’s scope; Ogboru & Anor v. Uduaghan & Ors (2013) LPELR-20805(SC).
In Nnatuanya v. Pharmacist Council of Nigeria (2017) LPELR 43596(CA), this Court, per Nwosu-lheme, JCA, listed instances of abuse of Court process to include the following:
(a) Instituting multiplicity of actions on the same subject matter against the same opponent on the same issue.
(b) Instituting multiplicity of actions on the same subject matter between the same parties even when there exists a right to begin the action.
(c) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
(d) Where two similar processes are used in respect of

the exercise of the same rights for example a cross appeal and a Respondent’s Notice.
(e) Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness.
(f) The use of a judicial process or lawful procedure to attain unlawful result i.e. deliberate use of judicial process to pervert the legal system.
(g) A party or its representative in interest duplicates a Court process.
(h) Use of Court process to shield self against criminal investigation or criminal prosecution.
The arguments of the 5th Respondent do not reveal that the present appeal fits into the garb of abuse of Court process, as judicially defined.
The argument that the suit was filed outside the time prescribed by Section 285(9) of the 1999 Constitution, as amended, raises the issue that the suit of the Appellant was statute barred. This issue, which was also raised and argued extensively in the Cross Appeal filed by the 5th Respondent, has been fully considered and resolved in the said Cross Appeal.
All considered, save the issue that attacks the competence of the suit on the contention that it was statute barred, which

shall abide the Cross Appeal, I resolve other issues raised in this Preliminary Objection against the 5th Respondent.

Substantive appeal
Out of 15 grounds of appeal, Senior Counsel for the Appellant, Chief Adedipe, distilled four Issues for determination of this appeal as follows:
i. Whether considering the facts and circumstances of this case, the lower Court was right to have dismissed the Appellant’s suit on the basis that same could not be determined by affidavit evidence (distilled from Grounds 1, 2, 3 and 15 of the Notice of Appeal.
ii. Whether the lower Court was right in holding that the 4th Respondent was eligible to participate as delegates in the Respondent’s election state congress and that the Appellant’s issue 1 thereto could not be determined without running afoul of the provisions of Section 285 (10) of the CFRN 1999 (as amended) (Grounds 6, 7, 8, 9 and 13 of the Notice of Appeal.
iii. Whether the lower Court was right when it held that the case of the Appellant was not predicated on Section 87(9) of the Electoral Act. (Grounds 11 and 12 of the Notice of Appeal.
iv. Whether the lower Court was right when it held that

relief IX was incompetent (Ground 4 and 5 of the Notice of Appeal).

Mr. Enoidem for the 1st Respondent, adopted the issues for determination as distilled by the Appellant. Senior Counsel for the 2nd Respondent, Mr. Ihekweazu, SAN, formulated 5 issues as follows:
1. Whether on a balanced consideration of the material evidence before the Lower Court as disclosed in the respective Affidavits of the Appellant and the Respondents before the lower Court there exists hostile and contentious facts in conflict that call for oral evidence for effective resolution and as such not a matter for determination by Originating Summons. GROUNDS ONE, TWO AND FIFTEEN.
2. Whether the decision of the Lower Court that parties prove their cases by oral evidence as regards the inclusion or participation of the 315 ad-hoc delegates which participated on the 3rd September, 2019 primaries was justifiable in law, in view of the circumstances of this case and the material facts before the lower Court. GROUND THREE.
3. Whether on a consideration of the provisions of Section 8(10) and Section 25(1) Of the PDP Constitution the participation of the 4th Respondent in the 1st

Respondent’s elective state congress, the finding and decision of the Lower Court against the provisions of Section 285(1), Section 285(9) of the 1999 Constitution (as amended) was justified in law bearing in mind the circumstances of this case. GROUNDS SIX, SEVEN, EIGHT, NINE AND THIRTEEN.
4. Whether the decision of the Lower Court that relief xi was incompetent was correct and sustainable. GROUNDS FOUR AND FIVE.
5. Whether the decision of the Lower Court that there was no breach of the Electoral Act and the 1st Respondent’s Guidelines and therefore no basis for the activation of the Lower Court’s jurisdiction under Section 87(9) of the Electoral Act was justified in law. GROUNDS ELEVEN AND TWELVE.

For the 3rd Respondent, Mrs. Nwugo formulated the following issues:
1. Whether the lower Court was right when it held that there was no breach of the Electoral Act nor the Respondent’s Guidelines with respect to the participation of the 4th Respondent in the said primary election held on 3rd September 2019, (Grounds 6, 7, 8, 9, 11 and 12 and 15 of the notice of appeal.
ii. Whether the lower Court was right when in dismissing the Appellant’s

suit on the grounds that same could not be determined by affidavit evidence with respect to the hostile and contentious nature of the issues raised in the various affidavits of the parties. (Grounds 1, 2, 3 and 15 of the Notice of Appeal).
iii. Whether the lower Court was right when it held that relief IX was incompetent.
iv. Whether the learned trial Judge was right when it held that the calling of Oral evidence has been put in abeyance by the full force of Section 285(10) of the CFRN (as altered) and thereby dismissed the suit (grounds 13 of the Notice of Appeal).

Mr. Chuks Uguru, framed the issues for the 4th Respondent in this manner:
1. Whether having regards to the state of the affidavit evidence of the parties, the finding and conclusion of the learned Trial Judge that the proceeding was hostile and calling oral evidence was necessary was not justified (Grounds 1, 2, 3 and 14).
2. Whether having regards to the facts and circumstances of this Case, the Appellant proved his case that there was a breach of the Constitution/Guidelines of the 1st Respondent and the Electoral Act as to entitle him to the Reliefs sought Pursuant to

the provisions of Section 87(9) of the Electoral Act, 2010 (as amended) (Grounds 4, 5, 6, 10, 11, 12 and 15).
3. Whether in the circumstances of this case, where the Governorship election of Bayelsa State had been held the Court could still grant Relief IX in the Originating Summons (Grounds 4 and 5).

For the 5th Respondent, Mr. Nwosu formulated the Issues thus:
1. Bearing in mind all the material issues involved with the suit, did the Hon. Trial Court misinterpret any of the Provisions of the
a. Constitution of the FRN, 1999 (As amended)
b. Electoral Act, 2010(as amended)
c. Constitution and guidelines of the 1st Respondent {Grounds 6, 7, 8, 9, 10, 11, 12and 13}
2. In addition to the incompetence of relief XI, was the trial Court not right in dismissing the Suit. {Grounds 4, 5 and 15}
3. Was Appellant(sic) suit such that could be tried under Originating Summons proceedings {Grounds 1, 2, 3 and 14}.

A scrutiny of the Issues as framed by the parties reveals that the resolutions sought by the parties are the same, though worded differently. I consider it appropriate to adopt the Issues as distilled by the

Appellants for determination of this appeal. I shall first take Issues 1 and 2 together.

Issues 1 and 2
The Appellant contended that the Originating Summons procedure adopted in instituting the suit before the lower Court was appropriate because the suit before the lower Court was largely based on the interpretation of documentary evidence which were neither contentious nor hostile. For the respective Respondents, the arguments were on the other side of the divide. They respectively contended that the lower Court was right in finding that the affidavit evidence of the parties was hostile and contentious and that the suit before the lower Court could not have been fairly determined by the Originating Summons procedure adopted by the Appellant. The question now is whether the learned trial Judge was right in his summation.
The nature of originating summons has been very well pronounced in a number of legal authorities. National Bank of Nigeria & Anor v. Alakija & Anor (1978) LPELR-1949(SC) at page 17, the Supreme Court, per Eso, J.S.C., enunciated:
“In other words, it is our considered view that originating summons should only be

applicable in such circumstances as where there is no dispute on questions of fact or the likelihood of such dispute. Where, for instance, the issue is to determine short questions of construction, and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating summons could be applicable.”
The Apex Court, per Onnoghen JSC (as he then was) in Dapianlong v. Dariye (2007) 8 MJSC 140, (2007) 4 S.C. (PT.III) 18 (2007) LPELR-928(SC) at page 46, described its nature this way:
“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute. In actions commenced by

originating summons, pleadings are not required rather affidavit evidence are employed: See Director, State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 314; Din v. A-G of the Federation (1986) 1 NWLR (Pt. 17) 471; Keyamo v. House of Assembly Lagos State & Ors (2002) 18 NWLR (Pt. 799) 605.
Restating the settled nature of the originating summons procedure in Sani v. Kogi State House of Assembly & Ors (2019) LPELR 46404(SC), the Apex Court, per Onnoghen, CJN, at pages 13-14 of the E-Report said:
“What type of action/case is Originating Summons Procedure best suited? I will commence by throwing more light on an Originating Summons Process. In the case of Hussaini Isa Zakirai vs. Salisu Dan Azumi Muhammad & Ors (2017) LPELR – 42349 (SC), this Court has this to say:
“In effect, Originating Summons is a procedure wherein the evidence is mainly by way of documents and there is no serious dispute as to their existence in the pleadings. It is usually heard on affidavit evidence and involve questions of law rather than issues of fact.”
By the above proposition, Originating Summons is best suited for cases where there are no

substantial disputes of facts or likelihood of facts. In the case of Standard Cleaning Services Company vs. the Council of Obafemi Awolowo University, Ile Ife (2011) 14 NWLR (pt. 1269) 193 at 204 – 205 213 the Court held that:
“Originating Summons should only be applicable in circumstances where there is no dispute on the question of facts or even the likelihood of such dispute. Application for initiating contentious issues of facts where the facts of the plaintiff leave matter for conjecture, Originating Summons is not appropriate procedure. Where it is obvious from the state of the affidavit that there would be an air of friction in the proceedings. then an Originating Summons is not appropriate. Originating Summons should be used only where the proceeding involves question of law, rather than disputed facts, even where the facts are not in dispute, the Originating Summons should not be used, if the proceedings are hostile.”
See also:Titilayo Plastic Industries Ltd & Ors v. Fagbola (2019) LPELR-47606(SC); Alfa v Attai & Ors (2017) LPELR-42579(SC); Zakirai v. Muhammad & Ors (2017) LPELR-42349(SC); Inakoju v Adeleke (2007) 2 MJSC 1;

FGN v Zebra Energy (Nig.) Limited (2003) 1 MJSC 3; Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852) 453; (2003) LPELR-1239(SC) at pages 1213; Executive Governor, Nasarawa State & Anor v. Ukpo (2017) LPELR-42445(CA).
The originating summons procedure is one that admits only affidavit evidence. It is therefore well settled that in actions where there is likely to be substantial dispute of facts, or, where the relief or reliefs sought by a claimant are declaratory in nature, originating summons procedure that admits only affidavit evidence ought not to be employed. The facts being in dispute, the action must be brought by writ of summons. Indeed, it is in accord with justice to postulate that where the complaint of the plaintiff makes allegations against a defendant, oral evidence is required. This would provide opportunity for the defendant to cross-examine witnesses testifying against him and also to testify in his favour.
It is important to note that it is not the filing of a counter affidavit per se that determines whether or not facts are in dispute. In Ossai v Wakwah (2006) 4 NWLR (Pt 969) 208 at 229, (2006)

LPELR-2813 (SC) at page 19, (2006) 2 SC (Pt 1) 19, the Supreme Court, per Mohammed JSC (as he then was) unequivocally put it this way:
“It must be emphasized that it is not the filing of a counter-affidavit to oppose claims in an originating summons that makes such proceedings contentious or result in disputed facts. Even where no counter-affidavit was filed or where counter-affidavit was filed but ignored by the trial Court, as in the lost out case, the nature of the claims and the facts deposed in the affidavit in support of the claims in the originating summons are enough to disclose disputed facts and hostile nature of the proceedings.”
Therefore, it is the nature of the claim and the facts deposed in the affidavit in support that would reveal whether the proceedings could be described as hostile.
In the instant appeal, the Appellant sought a determination of the following questions:
a. WHETHER by virtue of the provisions of Section 251 (1) (q) of the Constitution of the Federal Republic of Nigeria (as amended), Section 87(7) of the Electoral Act, the 3rd Defendant has the duty to ensure that Congress of political parties inclusive that of the

1st Defendant are conducted in compliance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Electoral Act and Constitution of the Political Parties inclusive of the Constitution of the 1st Defendant, 2017 (as amended) and Electoral Guidelines for Primary Elections issued thereunder?
b. WHETHER by virtue of the Provisions of Section 87(7) of the Electoral Act, 2010 (as amended), the 1st Defendant has a duty to comply with the provisions of the Constitution Of the Peoples Democratic Party, 2017 (as amended) and the electoral guidelines for Primary Elections issued thereunder with respect to the nomination of its candidates at the elective Special Congress held on the 3rd of September, 2019 for the Bayelsa State Governorship election?
c. WHETHER by virtue of the Provisions of Section 87(7) of the Electoral Act, 2010 (as amended), the Defendant ought to comply with the provisions of Article 8(10) of the Constitution of the Peoples Democratic Party with regards to the statutory delegates who ought to vote at the elective State Congress held on the 3rd of September, 2019 to nominate its candidate for the Bayelsa State Governorship elections

WHETHER by virtue of the Provisions of Section 87(7)of the Electoral Act, 2010 (as amended), the election of Ad hoc delegates who were allowed to participate at the elective Special Congress of the 1st Defendant held on the 3rd of September, 2019 ought to comply with the provisions of Article 2 and Paragraph IV and V of the Electoral Guidelines for Primary election issued thereunder?
e. WHETHER by virtue of Order of the Federal High Court, Port Harcourt division in FHC/PH/193/2019 between CDR KOKU IMAANAGHA (RTD) & ORS VS. PDP & ORS Coram Judice: OMOTOSHO J. made on the 2nd day of September, 2019, the inclusion of the 315 ad hoc delegates (whose elections were subject of a challenge) in the common ballot of boxes used in the elective special Congress of the 1st Defendant that held on the 3rd day of September, 2019 contrary to the express orders Of the Court does not vitiate and/or invalidate the entire primary elections held on the 3rd day of September, 2019.
f. WHETHER by virtue of the Provision of Section 87(7) of the Electoral Act, 2010 (as amended) the elective State Congress of the 1st Defendant held on

the 3rd of September, 2019 in which the Claimant was an aspirant, whereat, the 2nd Defendant was declared a winner, is valid having failed to comply with the provisions of the Constitution of the Peoples Democratic Party and the Guidelines issued thereunder?
g. WHETHER by virtue of the Provisions of Section 87(7) of the Electoral Act the declaration of the 2nd Defendant as the winner of the elective State Congress held on the 3rd of September, 2019 in which the Claimant was an aspirant, was not valid having failed to comply with the provisions of Constitution of the Peoples Democratic Party, 2017 (as amended) and the electoral Guidelines for Primary election issued thereunder?
h. WHETHER by virtue of the Provisions of Section 87(4) (ii) of the Electoral Act (as amended), the submission of the name of the 2nd Defendant purportedly submitted by the 1st Defendant to the 3rd Defendant as the winner of the elective State congress held on the 3rd day of September, 2019 in which the Claimant was an aspirant is not wrongful, irregular and invalid, in view of the infractions of the provisions of the constitution Of the Peoples Democratic Party, 2017 (as emended)

and the electoral guidelines for Primary Election issued thereunder?
If the above questions were resolved in favour of the Appellant, the Appellant sought the following reliefs against the Respondents, jointly and severally: –
i. A DECLARATION that pursuant to the provisions of Section 251 (1) (q) of the Constitution of the Federal Republic Of Nigeria (as amended), Section 87(7) of the Electoral Act, 2010, the 3rd Defendant has the duty to ensure that Congresses of political parties inclusive of the Defendant are conducted in compliance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Electoral Act, 2010 (as amended) and Constitution of the Political Parties inclusive of the Constitution of the 1st Defendant, 2017 (as amended) and Guidelines issued thereunder.
ii. A DECLARATION by virtue of the Provisions of Section 87(7) of the Electoral Act (as amended), the 1st Defendant has a duty to comply with the provisions of the Constitution of the Peoples Democratic Party, 2017 (as amended) and the Guidelines issued thereunder with respect to the nomination of its candidates at the elective Special Congress

held on the 3rd of September, 2019 for the Bayelsa State Governorship election.
iii. A DECLARATION that by virtue of the Provisions of Section 87(7) of the Electoral Act 2010 (as amended), the 1st Defendant ought to comply with the provisions of the Article 8(10) of the Constitution of the Peoples Democratic Party with regards to the statutory delegates who ought to vote at the elective Congress held on the 3rd of September, 2019 for the Bayelsa State Governorship election.
iv. A DECLARATION that by virtue of the Provisions of Section 87(7) of the Electoral Act 2010 (as amended), the election of Ad hoc delegates who have allowed to participate at the elective Special Congress of the 1st Defendant held on the 3rd of September, 2019 ought to comply with the provisions of Article 2, and paragraphs IV and V of the Guidelines issued thereunder.
v. A DECLARATION that by virtue of Order of the Federal High Court, Port Harcourt division in FHC/PH/193/2019 between CDR KOKU IMAANAGHA (RTD) & ORS VS. PDP & ORS Coram Justice: OMOTOSHO, inclusion of the 315 ad hoc delegates (whose elections were subject to a challenge) in the common ballot Box used in

the elective special congress of the 1st Respondent held on the 3rd day of September, 2019 contrary to the express orders of this Court under reference does not vitiate the entire process.
vi. A DECLARATION by virtue of the Provisions of Section 87(7) of the Electoral Act, 2010 (as amended) the elective State Congress of the 1st Defendant held on the 3rd of September, 2019 in which the Claimant was an aspirant, whereat, the 2nd Defendant was purportedly a winner, is invalid having failed to comply with the provisions of Section 251 (1) (q) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 87(7) of the Electoral Act, 2010 (as amended), the Constitution of Peoples Democratic Party and Article 2 paragraph iv and v of the Electoral Guidelines for Primary Elections issued thereunder.
vii. A DECLARATION that by virtue of the provisions of Section 87(7) of the Electoral Act (as amended) the declaration of the 2nd Defendant as the winner of the elective State Congress held on the 3rd of September, 2019 in which the Claimant was an aspirant was invalid for failing to comply with the provisions of Constitution of the Peoples

Democratic Party, 2017 (as amended) and the Electoral Guidelines for Primary election issued thereunder stated above.
viii. A DECLARATION by virtue of the Provisions of Section 87(4) (ii) ofthe Electoral Act (as amended), the purported of the submission of the name of the 2nd Defendant by the 1st Defendant to the 3rd Defendant as the winner of the elective State Congress held on the 3rd September, 2019 in which the Claimant was an aspirant is wrongful, invalid and of non(sic) effect in view of the infractions of the provisions of the Constitution of the Peoples Democratic Party, 2017 (as amended) and the Electoral Guidelines for Primary Election issued thereunder stated above.
ix. An Order setting aside the elective State Congress of the Defendant held on the 3rd of September, 2019 in which the Claimant was an aspirant and the Defendant purportedly returned as the winner for being invalid in view of the infractions of the provisions of the Constitution of the Peoples Democratic Party, 2017 (as amended) and the Guidelines issued thereunder.
x. An Order setting aside the purported submission of the name of the 2nd Defendant by the Defendant to the

3rd Defendant as its candidate for the Bayelsa State Governorship elections scheduled for the 16th day of November, 2019 in view of the infractions of the provisions of the Constitution of the Peoples Democratic Party, 2017 (as amended) and the Guidelines issued thereunder with respect to the elective special congress held on the 3rd of September, 2019.
xi. An Order directing the Defendant to conduct fresh primary elections for the nomination and sponsorship of candidate for the forthcoming governorship election in Bayelsa.
In support of his claim, the Appellant had deposed to a 54-paragraph affidavit. On specific allegations concerning the inclusion of the votes of 315 Ad-hoc delegates in the common ballot boxes at the special elective Congress, he deposed:
34. I know as a fact that pursuant to the provisions of the Electoral Act which requires the delegates to vote at the Congress of the political party, the 1st Defendant acting under the provisions of exhibit NA4 stipulated the manner for the election of three (3) Ad hoc delegates from the wards to participate in the State Congress. The guideline is Exhibit NAS.
35. However, the election

of the three (3) ad hoc delegates was a farce in Bayelsa State and along with some other aspirants, we wrote a petition to the Defendant. A Copy at the Petition to the 1st defendant is herein annexed as Exhibit NA8.
36. Upon receipt of our petition, the Defendant empanelled a committee to look into our compliant and come up with its findings.
37. The committee which was empanelled by the 1st Defendant found reasonable ground in the petitions and recommended an amicable resolution in order to have a united front as a party. A copy of the report by the Committee is herein annexed and marked as Exhibit NA9.
38. That the recommendations were not implemented by the 1st Defendant before the conduct of the elective special congresses.
39. Sequel to this substantial irregularity that marred the election, some concerned members of the party Commenced an action before the Federal High Court, Port Harcourt Division in FHC/PW193/2019 between CDR KOKU IMAANAGHA (RTD) & ORS V PDP & ORS Coram Judice: OMOTOSHO, J. wherein the Court ordered inter alia, that the contentious 315 ad hoc delegates be separated from the ballot of the undisputed

delegates. A copy of the Order is herein annexed and marked as Exhibit NA10.
40. However, and despite the orders and pendency of exhibit NA8, the 1st Defendant included and/or failed to separate the disputed ad hoc delegates from the residue of the undisputed delegates in the elective special congresses that took place on the 3rd day of September2019.
41. I know a fact that before the start of the elective State Congress held on the of 3rd of February, 2019, I drew the attention of the officials of the 1st Defendant to the contents of exhibit NA8.
42. I know a fact that I participated in the said elective State Congress without prejudice to my right to protest and object to the infractions of the PDP constitution and Guidelines issued thereunder, which fact was verbally communicated to the 1st Defendant through its officials.
43. I know that the inclusion of the disputed 315 ad hoc delegates in the common ballot was in violation of the orders of a Court of competent jurisdiction.
44. I know as a fact that the total number of the 4th Defendants is 121 (One hundred and twenty one) delegates who participated in the primary election on the

3rd day of September, 2019.
45. I equally know that a total number of the 5th Defendant’s delegates who participated in the primary election held on the 3rd day of September, 2019 is 315 (Three Hundred and fifty) delegates contrary to the Constitution of the 1st Defendant and the Guidelines issued thereunder and the pendency of the suit.
46. That the total number of ineligible delegates (both ad hoc and statutory) who participated in the elective State congresses which held on the 3rd day of September, 2019 is 436 (Four Hundred and Thirty Six) exceeds the margin of lead between the two leading candidates (i.e. myself and the 2nd Defendant) and this substantive affected the result of primaries declared.
47. I know a fact that the Defendant is bound to conduct its affairs especially the elective State Congress held on the 3rd of September, 2019 in accordance with the provisions of exhibits NA4 and NA5 respectively.
48. I know as a fact that it was the elective State Congress which was not conducted in compliance with the provisions of the exhibits NA4 and NA5 respectively that purportedly produced the 2nd Defendant as winner and the candidate of

the 1st Defendant for the Governorship election of Bayelsa State. A copy of the Final declaration of the result is herein annexed and marked as Exhibit NA11.
Exhibit NA4 was the Constitution of the 1st Respondent, pages 28 — 83 of the Record of Appeal. Exhibit NA5 was the Electoral Guidelines for Primary Elections of the Respondent, pages 84 — 111 of the Record of Appeal. These Exhibits state the composition of delegates at a State Congress and provide guidelines for this composition. The 5th Respondent, 315 delegates, were elected as ad hoc delegates at Ward Congresses. By letter, Exhibit NA8, the Appellant, and some other aspirants, complained to the 1st Respondent on the conduct of the said election of the ad hoc delegates. The Respondent thereupon set up a Panel to look into their complaint. Minutes of the meeting of the Panel was attached as Exhibit NA9, pages 124 — 126 of the Record of Appeal. At the said meeting, the Appellant and other aspirants, who were signatories to Exhibit NA8, demanded, inter alia, for the cancellation of the ad hoc delegates election, or in the alternative, for their exclusion from the primary

election and only statutory delegates be permitted to vote in the gubernatorial primaries.
The Appellant in paragraphs 35 and 39 of his affidavit in support of the Originating Summons, described the election of the three ad hoc delegates per Local Government, which was 315 delegates, as a farce as there was substantial irregularity in the conduct of their election. Although he had also complained about the inclusion of the votes of the 4th Respondent, his complaints were mostly anchored on the alleged controversial inclusion of the 315 votes of the 3 ad hoc delegates per ward, the Respondent, whose election was alleged to be substantially irregular, and whose votes had been included, contrary to the order of Omotosho, J.

Now, without even looking at the respective Counter Affidavits of the Respondents, it is very obvious that the depositions of the Appellant reveal the hostile nature of the dispute. How does a Court of law make declarations to the effect that the election of the 3 ad hoc Ward delegates (315 delegates) was not done in compliance with the 1st Respondent’s Constitution or Guidelines without the benefit of oral evidence which has been

subjected to cross examination? How does a Court of law determine that there was non-compliance with a subsisting Court order made in Suit No FHC/PH/193/2019 by Omotosho J., without proof that the party that was to comply with the said Court order was aware that the order had been made by a Court of competent jurisdiction and that the said Court order was in fact served on the party? How does a Court of law declare primary elections to be invalid and the return of a candidate wrongful for non-compliance with provisions of the party’s constitution then make the far-reaching order for conduct of fresh primary election on account of alleged infractions merely by affidavit evidence?
It is instructive to note that none of the allegations of the Appellant was admitted by any of the Respondents. Indeed, the 4th and 5th Respondents had filed a Motion on Notice on 4/3/2019 seeking an order of the lower Court to file pleadings and set the matter down for hearing, pages 730 -734 of the Record of Appeal. In paragraph 6 of the affidavit in support of the said Motion, the 4th and 5th Respondents deposed that the affidavit evidence of the parties to the Originating
36

Summons contained brutally conflicting facts. Indeed, a study of the affidavit evidence of the parties would reveal the crystal clear and indisputable brutally conflicting facts. The learned trial Judge identified that the affidavit evidence of the parties regarding the conduct of the Ward Congresses which produced the 315 ad hoc delegates, the intervention of the National Working Committee, and service of the Court order in Suit No FHC/PH/193/2019, were in conflict. Upon a calm consideration of the affidavit evidence of the parties, I also arrived at the same observation. How then would the trial Court decide on which account to believe and act without the benefit of oral evidence? I think it would be almost impossible to arrive at a fair and just determination of the contentions thrown up herein without the assistance of oral evidence. The settled principle of law is that where depositions in the affidavit evidence of the parties are in conflict, the Court seised of the matter must resolve the conflict by calling oral evidence; Falobi v. Falobi (1976) LPELR-1236(SC); Ugwu & Ors v. PDP & Ors (2015) LPELR-24352(SC). Therefore, without much ado, I

would agree with the learned trial Judge that in the light of these disputations, the parties ought to have called oral evidence.
An aggrieved litigant should not employ originating summons as a procedure to ventilate grievances which are in dispute. Indeed, judicial pronouncements have always emphasized that the originating summons procedure is not the appropriate procedure to employ in determining hostile proceedings in which facts are in dispute; Eze v. University of Jos (2017) LPELR-42345(SC); Amasike v The Registrar, Corporate Affairs Commission (2010) 13 NWLR (PT.1211) 337 S.C; Ezeigwe v Nwawulu (2010) 4 NWLR (PT 1183) 159 S.C.; Agbakoba v INEC (2008) 18 NWLR (PT.1119) 489 S.C.
In my considered view, therefore, there is no gainsaying the fact that the Appellant commenced this action by a procedure that does not permit a comprehensive ventilation of the matters in controversy in order to ensure justice for all the parties. The declarations and orders sought by the Appellant arising from the issues thrown up by the affidavit evidence of the parties cannot fairly be determined without recourse to oral evidence which is tested by cross

examination.
The general principle of law is that where there is conflicting affidavit evidence, such as in an originating summons procedure, the trial Court should order pleadings in order for the parties to lead evidence to resolve such conflicts. An exception to this general principle is that where there are documents annexed to the affidavits of the parties that can be effectively used to resolve the conflicts, there would be no need to order pleadings; Ezechukwu & Anor v. Onwuka (2016) LPELR-26055(SC); Jev & Anor v. Iyortyom & Ors (2014) LPELR 23000(SC); Nagogo v. CPC & Ors (2012) LPELR-15521(SC). The decision of the Apex Court in Agbakoba v INEC (2008) LPELR-232(SC) clearly illuminates this point, wherein Chukwuma Eneh, JSC said:
“Even then instituting this action by way of Originating Summons appears to me, after all said, to be the most appropriate form of action to speedily resolve in the context of Sections 32 and 34 of the Electoral Act, 2006, that is to say, the controversy surrounding the nomination and substitution of the appellant by the 2nd Respondent in this case. It is significant that the materials by way of facts

deposed to and documents exhibited to the said affidavits of the parties and the ones tendered from the Bar provide more than sufficient materials to deal with the issue of whether the appellant has been properly substituted in the circumstances. As they have not been challenged, they constitute admissible evidence. See: Shitta-Bey v. Attorney-General of the Federation (1998) 7 S.C. (Pt. II) 121; (1998) 10 NWLR (Pt.570) 392. And again, the applicable law in this instance is not being contested. There is no application before the Courts below for oral evidence, none whatsoever.”
In this case however, with both sides relying on the same documents, there certainly was need for oral evidence.
The primary election in issue herein was held on 3/9/2019. The learned trial Judge rightly noted that being a pre-election matter, by virtue of the provisions of Section 285(10) of the 1999 Constitution, as amended, the trial Court had only 180 days to deliver its judgment on the matter from the date of filing the suit. The day that the judgment of the lower Court was delivered, was the 180th day from the date of filing the suit. It was therefore too late to order

pleadings and proceed with hearing of the matter.
The learned trial Judge had concluded, page 896 of the Record of Appeal:
“It is thus, enough for me to state that parties ought to have called oral evidence to prove matters I have identified above, but I cannot order for such oral evidence lest I give my order in vain with the constitutional prowess evidently taking over the sphere of our timings.”
I see no reason to disturb the conclusion of the learned trial Judge. By the unambiguous extant Constitutional provisions of Section 285(10), the continued hearing of the matter was definitely blotched. It came to an end on 10/3/2020 and cannot be resurrected. Issues 1 and 2 are therefore resolved against the Appellant and in favour of the Respondents.

Issues 3 and 4
Having resolved Issues 1 and 2 against the Appellant, no useful purpose will be served in proceeding to consider Issues 3 and 4. This is because the crux of the Appellant’s complaint was centred on the eligibility of the 4th and 5th Respondents to participate in the 1st Respondent’s State Congress in which the governorship candidate for the party was determined. Having adjudged

that the procedure employed by the Appellant to ventilate his grievance was wrong, the evidence that ought to guide the trial Court in its decision, being oral evidence passed through the fiery crucible of cross examination, was not adduced. The trial Court could not therefore have proceeded further in hearing and determining the matter. I would therefore resolve Issues 3 and 4 against the Appellant and in favour of the Respondents.

In all, this appeal is without merit. It fails and is hereby dismissed.
Parties are to bear their costs.

CROSS APPEAL
Four different cross appeals were lodged by the Cross Appellant, the 2nd Respondent, the Respondent and 5th Respondent herein against the decision of the Federal High Court, Owerri Division (the lower Court) Coram T.G. Ringim, J., delivered on March 10, 2020, in which the suit of the Cross Respondent was dismissed.

Having regard to the fact that the respective cross appeals seek similar resolutions, the Court had indicated at the hearing thereof that the cross appeals shall be taken in one fell swoop. In consequence, I shall in this Judgment refer to the Cross Appellant as the 1st Cross

Appellant, the 2nd Respondent herein as the 2nd Cross Appellant, the 4th Respondent herein as the 3rd Cross Appellant and the 5th Respondent herein as the Cross Appellant; while the 1st Cross Respondent remains the Cross Respondent, the 3rd Cross Respondent becomes the 2nd Cross Respondent.

The facts leading to the cross appeal are as follows: The 1st Cross Respondent was an aspirant in the elective State Congress (the primary election) conducted by the 1st Cross Appellant on 3/9/2019 towards the nomination and sponsorship of its governorship candidate at the general election that took place on 16/11/2019. Upon the scheduling of its primary election for 3/9/2019, the 1st Cross Appellant published a delegate list, designating the statutory delegates to participate in the said primary election. The 3rd Cross Appellant, who emerged as elected Local Government officials, comprising of the Chairman, Vice Chairman and Councilors respectively, from the eight Local Government Areas in Bayelsa State on the platform of the 1st Cross Appellant on 10/8/2019, were listed as statutory delegates. It was the position of the 1st Cross Respondent that notwithstanding the

fact that the 3rd Cross Appellant fell within the category of statutory delegates in a State Congress, their privilege did not crystalize at the time of the election to enable them participate in an elective Congress, owing to the fact that their emergence was less than the mandatory 90 days prescribed by Article 25(1) of the 1st Cross Appellant’s Constitution. The 1st Cross Respondent also challenged the emergence and participation of the 4th Cross Appellant as Ad-hoc delegates in the State Congress.

Prior to the said primary election of 3/9/2019, Omotosho J. of the Federal High Court, Port Harcourt, Division, made an interim order in Suit No FHC/PH/CS/193/2019: CDR Koku Imanaagha & Ors v Peoples Democratic Party & Ors, directing the 1st Cross Appellant to separate the ballot boxes of the statutory delegates, and that of the 4th Cross Appellant, made up of 315 Ad hoc delegates, pending the hearing and determination of the substantive suit, wherein the participation of the 4th Cross Appellant in the elective congress was the subject of challenge. It was the 1st Cross-Respondent’s complaint that the said order of Omotosho, J., was not obeyed by

the 1st Cross Appellant but it went ahead to conduct its primaries without separating ballot boxes, which ultimately led to the return of the 2nd Cross Appellant as the governorship candidate of the 1st Cross Appellant in election of 16/11/2019. It was the 1st Cross Respondent’s case that it was the participation of the 3rd Cross Appellant as well as of the 4th Cross Appellant in the elective State Congress of 3/9/2019, in spite of the subsisting Court Order of Omotosho, J, thereby violating the doctrine of lis pendens, inter alia, that culminated into 1st Cross Respondent’s cause of action at the lower Court.

The 1st Cross Respondent instituted action by way of Originating Summons. The respective Cross Appellants and the 2nd Cross Respondent all filed Counter Affidavits and Preliminary Objections, which were heard together with the substantive suit. At the conclusion of hearing, the learned trial Judge overruled the Preliminary Objections and dismissed the 1st Cross-Respondent’s suit. Dissatisfied with the decision of the lower Court overruling their Objections, the respective Cross Appellants lodged Notices of Cross Appeal.

The parties filed

Briefs of Argument pursuant to the Rules of Court. The 1st Cross Appellant’s Brief was filed on 21/4/2020 and a Reply Brief on 4/5/2020. The 2nd Cross Appellant’s Brief was filed on 27/4/2020 and a Reply Brief on 4/5/2020. The 3rd Cross Appellant’s Brief was 22/4/2020 and a Reply Brief on 4/5/2020. The 4th cross Appellant’s Brief was filed 28/4/2020. The 1st Cross-Respondent’s Brief to the 1st Cross Appellant’s Brief was filed 27/4/2020. The 1st Cross-Respondent’s Brief to the 2nd Cross Appellant’s Brief was filed on 28/4/2020. The 1st Cross-Respondent’s Brief to the 3rd Cross Appellant’s Brief was filed 27/4/2020. The 1st Cross-Respondent’s Brief to the 4th Cross Appellant’s Brief was filed on 1/5/2020. The 2nd Cross Respondent filed no Brief of Argument.

At the hearing of the cross appeals on 5/5/2020, these Briefs were respectively adopted by E. Enoidem, Esq., with Jerry Egemba, Esq., for the 1st Cross Appellant; C.V.C. Ihekweazu, SAN, with Chikezie Obiefule, Esq., and U.V. Dim, Esq., for the 2nd Cross Appellant; Chuks Uguru, Esq., for the 3rd Cross Appellant; and F.N. Nwosu, Esq., with J.C. Uwandu, Esq., L.U. Mgberede, Esq., and D.C. Nnabugo, Esq.,

for the 4th Cross Appellant. The Briefs of the 1st Cross Respondent were adopted by I.A. Adedipe, SAN, with A. Adedipe, Esq., D. Atogbo, Esq., Somina Johnbull, Esq., and Daniel Odiba, Esq.

For the 1st Cross Appellant, the following Issues were distilled for determination:
1. Whether the learned Judge was not wrong in law when he overruled the Cross Appellant’s Preliminary Objection and held that Respondent’s reliefs iv and v which were directed at the elections of the 315 ad hoc delegates conducted on August, 22, 2019 was not statute barred (Distilled from Ground 1).
2. Whether the learned trial Judge did not err in law in failing to consider and or to sustain the plea of estoppel by conduct against the 1st Respondent, who was well aware of the decision of the Cross appellant to include the 315 ad hoc delegates and the 121 elected Local Government officials as delegates to the State Congress and yet participated in the Congress held on September 3, 2019.

For the 2nd Cross Appellant, the following Issues were distilled:
1. Whether on a balanced consideration of the 1st Respondent’s Originating Summons before the Lower Court, it discloses

a reasonable cause of action against the Appellant.
2. Whether the learned trial Judge was justified in law when he held inter alia, that the Respondent’s suit at the Lower Court as constituted, was competent and not an abuse of Court process of the Court and that the Lower Court had jurisdiction to hear and determine the action.
3. Whether on the consideration on the Respondent’s Suit before the Lower Court, it cannot be said that the action was statute barred.

For the 3rd Cross Appellant, the issues for determination were framed thus:
1. Whether having regards to the facts and circumstances of this case, the trial Court was clothed with the jurisdiction to entertain this case? (ground 1 and 2)
2. Whether it was a proper exercise of judicial discretion for the learned trial judge after holding that the affidavit evidence was hostile and required the calling of oral evidence to proceed to determine the case on the merits? (ground 3)

The 4th Cross Appellant formulated the issues in this manner:
ISSUE 1
Is the Appellant’s Suit not an abuse of Court Process? (Ground 1 and 4)
ISSUE 2
Whether the Appellant has not

lost his right of Action over this Appeal (Ground 2).
ISSUE THREE
Was the Trial Court right to have proceeded further with the suit having found that the Originating Summons was a commencement proceeding for the suit.

The 1st Cross Respondent adopted the issues as framed by the 1st Cross Appellant with slight modifications as follows:
i. Whether the learned trial Judge was not wrong in law when he overruled the Cross Appellant’s preliminary objection and held that the 1st Respondent’s reliefs iv and v were not statute barred. (Ground 1 of the Notice of Cross Appeal).
ii. Whether the learned trial Judge did not err in law in failing to consider and or to sustain the plea of estoppel by conduct against the 1st Respondent, who was well aware of the decision of the Cross Appellant to include the 315 ad hoc delegates and the 121 elected Local Government officials as delegates to the State Congress and yet participated in the Congress held on September 3, 2019.

The Cross Appellants as well as the 1st Cross Respondent have distilled similar issues for the resolution of the respective cross appeals. I have read the submissions of Counsel in

the respective Briefs. To my mind, the sole issue that stands for the determination of the cross appeals respectively filed by the Cross Appellants is this:
Whether the Cross Respondent’s Suit before the Lower Court was statute barred.
I shall proceed to consider this issue.

Arguments
The Cross Appellants all contend that the action of the 1st Cross Respondent was statute barred and relied on a number of judicial authorities to buttress their submissions, which include: Asaboro v Pan Ocean Oil Corp Nig Ltd (2017) 7 NWLR (PT 1563) 42; Ajayi v Adebiyi (2012) 11 NWLR (PT 1310) 137; Egbe v Adefarasin (1) (1985) 1 NWLR (PT 3) 549; Sulgrave Holdings Inc v FGN (2012) 17 NWLR (PT 1329) 309 at 343. They argued the Originating Summons seek reliefs (in particular reliefs iv and v, for the 1st Cross Appellant) that relate to the election of the 3 ad hoc delegates from each of the 105 electoral wards of Bayelsa State, being 315 delegates, which took place on 23/8/2019. The 1st Cross Respondent had made complaints regarding the said election to the 1st Cross Appellant, alleging that the said election of the 3 ad hoc delegates from each of the 105

electoral wards was irregularly conducted. The complaint in Suit No FHC/PH/193/2019: CDR Koku Imaanagha (RTD) & Ors v PDP & Ors, on which the 1st Cross Respondent’s case was anchored, was centred on the election of the 315 ad hoc delegates alleged to have been irregular. The Cross Appellants have therefore argued that the complaint and thus, the cause of action of the Cross Respondent, arose on 23/8/2019 when the said election of the ad hoc delegates took place, and not upon the inclusion of their votes in the State Congress that took place on 3/9/2019. That being the case, the action of the Cross Respondent ought to have been instituted in line with the provisions of Section 285(9) of the Fourth Alteration to the 1999 Constitution, as amended, which provides that every pre-election matter must be filed 14 days from the date of occurrence of the event, decision or action complained of in the suit. Reliance was placed on authorities that included: APC v Umar (2019) LPELR-47296(SC); Jafar Sani Bello v Abba K. Yusuf & Ors (2019) LPELR-47918(SC). The Cross Appellants therefore argued that the Originating Summons filed more than 14 days after 23/8/2019,

was statute barred.

For the 1st Cross Respondent, Senior Counsel, Chief Adedipe, SAN, argued that the suit of the 1st Cross Respondent was not a challenge to the election of ad-hoc delegates and statutory delegates, but rather that it challenged the participation of the said delegates in the State Congress, that was the primary election. He also referred to the judgment of the lower Court wherein the learned trial Judge made a finding that it was not the elections which put both the statutory and ad hoc delegates in office as delegates that was being challenged by the 1st Cross Respondent but rather that it was their participation in the primary election that was the basis of his case. It was argued that this finding was not appealed against and therefore ought to stand, relying on NBCI v Integrated Gas (Nig) Ltd (2005) 1 SC (PT 1) 80 at 140; Unity Bank Plc v Bouari (2008) 7 NWLR (PT 1086) 362 at 400.

On this argument, Mr. Enoidem for the 1st Cross Appellant responded that the holding or decision of the learned trial Judge that the action was not statute barred was a complaint in the instant cross appeal. It is the decision of a trial Court that

is appealable, as had been done herein. Cases relied on include Saipem Contracting (Nig) Ltd & Ord v FIRS & Ors (2018) LPELR-45118(CA); Folorunsho v Rosula Nigeria Ltd & Anor (2019) LPELR-47339(CA).

Senior Counsel for the 2nd Cross Appellant, Mr. Ihekwazu, SAN, submitted that the combination of facts as encapsulated in the 1st Cross Respondent’s Originating Summons will determine the cause of action and when it arose. Therefore, a comprehensive reading of the Originating Summons will confirm whether or not the cause of action was within the statutory limit.

In his Reply for the 3rd Cross Appellant, Mr. Uguru argued that the complaint in Ground 1 of the Notice of Cross Appeal was clearly against the ratio decidendi of the judgment to the effect that the trial Court was satisfied that there was a cognizable cause of action in the matter.
The Cross Appellants all urged the Court to grant their respective cross appeals.

Resolution
It is a rudimentary Principle of law that the jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a Court has to decide matters

that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. Jurisdiction has variously been described as the life blood, the life wire, the fiat, the stamp of authority which necessarily enures to the Court or tribunal and empowers it to adjudicate; Buremoh v Akande (2017) LPELR-41565(SC); Isaac Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (PT 1247) 465, (2011) LPELR-2185(SC), (2011) 2-3 SC (PT.1) 46; Madukolu v Nkemdilim (supra), (1962) 2 NSCC 374. A Court is said to have jurisdiction and therefore competent to entertain a suit when: –
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other,
b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
c) The case comes before a Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of

jurisdiction.
See: Madukolu v Nkemdilim (supra); FBN Plc v Obande & Sons Enterprises & Ors (1998) 2 NWLR (PT 538) 410. Where a Court does not have jurisdiction to hear a matter, the entire proceedings no matter how well and decided would simply amount to a nullity.

Further, the claim of the plaintiff is the process to be examined in determining if the particular Court has jurisdiction to hear and determine the matter submitted to it for adjudication. The Court must restrict itself to the case as put forward by the plaintiff in his writ of summons and statement of claim;Tukur v Gongola State (1989) 4 NWLR (Pt. 147) 517; Akpamgbo-Okadigbo & Ors v. Chidi & Ors LPELR 24565 (SC); Emeka v Okoroafor (2017) LPELR-41738(SC); PDP v Oranezi (2017) LPELR-43471(SC); Agi v. PDP & Ors (2016) LPELR – 42578(SC).

In the cross appeals, the contention was that the action of the 1st Cross Respondent was statute barred, thereby impacting on the jurisdiction of the trial Court to entertain the matter. Expounding on the implication and effect of a matter being statute barred, the Supreme Court, per Edozie, JSC in Aremo II Vs Adekanye (2004) LPELR 544(SC) at

pages 17 – 18, (2004) ALL FWLR (PT. 224) 2113 at 2132 – 2133 said:
“Where a statute of limitation prescribes period within which on action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed: See the cases of Eboigbe v N.N.P.C. (1994) 5 N.W.L.R. (Pt.347) 649: Odubeko v. Fowler (1993) 7 N.W.L.R. (Pt.308) 637, Sanda v. Kukawa Local Government (1991) 2 N.W.L.R. (Pt.174) 379: Ekeogu v Aliri (1991) 3 N.W.L.R. (Pt 179) 258.
The rationale or justification supporting the existence of statutes of limitation includes the following: –
(1) that long dominant claims have more of cruelty than justice in them – Lloyd v. Butler (1950) 1 K.B. 76 at 81 – 82,
(2) that a defendant might have lost the evidence to disprove a stale claim: Jones V. Bellgrove Properties Ltd. (1949) 2 K.B 700 at 704
(3) that persons with good causes of action should

pursue them with reasonable diligence. Board of Trade V. Cayzer Irvine & Co. (1927) A.C.610 of 628.
The period of limitation begins to run from the date on which the cause of action accrued. To determine whether an action is statute barred, all that is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred: See the case of Egbe v. Adefarasin (1987) 1 N.W.L.R. (Pt.47) 1 at 20-21.”
These time hallowed principles of the law have been restated time without number and the same position maintained in myriad judicial pronouncements. The originating process in any action, whether writ of summons and statement of claim or Originating Summons, as in the instant case, would reveal when the alleged wrong which gave rise to the cause of action arose. The date when the cause of action arose is then placed beside the date on which the originating process was filed. If the time on

the originating process is beyond the period allowed by the applicable limitation law, then the action is statute barred; Woherem v. Emereuwa (2004) 6-7 S.C 161, (2004) ALL FWLR (PT 221) 1570 at 1581-1582; Military Administrator of Ekiti State & Ors v. Aladeyelu & Ors (2007) LPELR -1875 (SC).
It is therefore fundamental to identify what constitutes the cause of action in a matter as well as when it arose. In Egbe v Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 20 – 21, (1987) LPELR -1032 (SC) at page 32, described, per Peter-Odili, JSC in CIL Risk & Asset Management Ltd v. Ekiti State Govt & Ors (2020) LPELR – 49565 (SC) as a timeless decision, Oputa, JSC, explained “cause of action” as follows:
“Now let us look at the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief.
A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words a cause of

action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right.”
In Bello v Attorney General, Oyo State (1986) LPELR-764 (SC) at page 81, (1986) 5 NWLR (Pt. 45) 828 at 876, the Supreme Court, per Karibi-Whyte, JSC, described a cause of action thus:
“I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the Plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim. See Trower & Sons Ltd. v. Ripstein (1944) A.C. 254 at p.263; Read v. Brown 22 Q.B.D.128, Cooke v. Gill (1873) L.R. 8 C.A.107; Sugden v. Sugden (1957) All ER.300: Jackson v. Spinal (IR 70) L.R. 5C. P. 542. Concisely stated, any act on the part of the defendant which gives to the Plaintiff his cause of

complaint is a cause of action.” (Emphasis mine).
Similarly, in Zubair V. Kolawole (2019) LPELR-46928 (SC) at pages 19 -20, the Apex Court, per Kekere-Ekun, JSC
“A cause of action has been defined as consisting of “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. See: Adimora Vs Ajufo (1988) 3 NWLR (PT. 80) 1. It has also been defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right judicial relief.” See: Egbe vs Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ 20; Adekoya vs F.H.A. (2008) 11 NWLR (Pt. 1099) 539; Oshoboja vs Amuda (1992) 6 NWLR (Pt.250) 690.
In Adekoya Vs F.H.A. (supra), it was held that a cause of action arises the moment a wrong is done to the plaintiff by the defendant and the wrong, which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a Court of law by way of enforcement.”
See also: Forestry Research Institute of Nigeria v. Gold (2007) LPELR-1287 (SC); P.N. Udoh Trading Co Ltd v. Abere & Anor (2001) LPELR-2893 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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By these enduring judicial pronouncements, a cause of action means a combination of facts and circumstances giving rise to the right to file a claim in Court for a remedy. It includes all those things which are necessary to give a right of action and every material fact which ought to be proved to entitle the plaintiff to succeed. Time will start to run when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed; Fadare v. Attorney General of Oyo State (1982) LPELR – 1222 (SC) at page 17, (1982) 4 SC (Reprint) 1 of 11; Nigeria Ports Authority v Ajobi (2006) LPELR 2029(SC).
The point must also be made that the statute of limitation does not take away the cause of action but it removes the right of action, the right of enforcement, the right to judicial relief and leaves the claimant with a bare and empty cause of action which he cannot enforce; Egbe v Adefarasin (supra); Araka v. Ejeagwu (2000) 12 SC (Part I) 99. Indeed, an action commenced after expiration of the period, within which an action must be brought, as stipulated in a statute of

limitation, is not maintainable. The Court would have no jurisdiction to entertain a statute barred claim. Therefore, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed limitation period; Ekeogu v. Aliri (1991) 3 NWLR (Pt 179) 258; Sanda v. Kukawa Local Government & Anor (1991) LPELR – 3001 (SC); Eboigbe v. The Nigerian National Petroleum Corporation (1994) LPELR – 992 (SC); Attorney General of Adamawa State & Ors v. Attorney General of the Federation (2014) LPELR-23221(SC); Buremoh v. Akande (supra).
Restating this position of the law, the Apex Court, per Eko, JSC in CIL Risk & Asset Management Ltd v. Ekiti State Govt. & Ors (supra) at pages 9-10 said:
“It is of course true, and the law is, that where an action is statute barred the effect is that the cause of action is or becomes extinct by operation and it can no longer be maintained in the law Court: SOSAN V. ADEMUYIWA (1986) 3 NWLR (pt. 27) 241. Consequently, a cause of action extinguished or statute barred cannot be a reasonable cause of action.”
In sum, established yardsticks to determine whether an action is statute-barred are:

(a) The date when the cause of action accrued.
(b) The date of commencement of the suit as indicated in the originating process.
(c) Period of time prescribed to bringing an action to be ascertained from the statute in question. Time begins to run for the purposes of the limitation law from the date the cause of action accrues; Ajayi v. Adebiyi (2012) LPELR-7811 (SC); INEC v. Ogbadibo Local Govt & Ors (2015) LPELR-24839 (SC).
The 1st Cross Respondent commenced this action by Originating Summons in which he sought a determination of the following questions:
i. WHETHER by virtue of the provisions of Section 251 (1)(q) of the Constitution of the Federal Republic of Nigeria (as amended), Section 87(7) of the Electoral Act, the 3rd Defendant has the duty to ensure that Congress of political parties inclusive that of the 1st Defendant are conducted in compliance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Electoral Act and Constitution Of the Political Parties inclusive of the Constitution of the Defendant, 2017 (as amended) and Electoral Guidelines for Primary Elections issued thereunder?

WHETHER by virtue of the Provisions of Section 87(7) of the Electoral Act, 2010 (as amended), the 1st Defendant has a duty to comply with the provisions of the Constitution of the Peoples Democratic Party, 2017 (as amended) and the electoral guidelines for Primary Elections issued thereunder with respect to the nomination of its candidates at the elective Special Congress held on the 3rd of September, 2019 for the Bayelsa State Governorship election?
k. WHETHER by virtue of the Provisions of Section 87 (7) of the Electoral Act, 2010 (as amended), the 1st Defendant ought to comply with the provisions of Article 8(10) of the Constitution of the Peoples Democratic Party with regards to the statutory delegates who ought to vote at the elective State Congress held on the 3rd of September, 2019 to nominate its candidate for the Bayelsa State Governorship elections.
l. WHETHER by virtue of the Provisions of Section 87 (7) of the Electoral Act, 2010 (as amended), the election of Ad hoc delegates who were allowed to participate at the elective Special Congress of the 1st Defendant held on the 3rd of September, 2019 ought to comply with the provisions of Article 2 and Paragraph IV and V of

the electoral Guidelines for Primary election issued thereunder?
m. WHETHER by virtue of Order of the Federal High Court, Port Harcourt division in FHC/PH/193/2019 between CDR KOKU IMAANAGHA (RTD) & ORS VS. PDP & ORS Coram Justice OMOTOSHO J. made on the 2nd day of September, 2019, the inclusion of the 315 adhoc delegates (whose elections were subject of a challenge) in the common ballot of boxes used in the elective special Congress of the 1st Defendant that held on the 3rd day of September, 2019 contrary to the express orders of the Court does not vitiate and/or invalidate the entire primary elections held on the 3rd day of September, 2019.
n. WHETHER by virtue of the Provisions of Section 87(7) of the Electoral Act, 2010 (as amended) the elective State Congress of the 1st Defendant held on the 3rd of September, 2019 in which the Claimant was an aspirant, whereat, the 2nd Defendant was declared a winner, is valid having failed to comply with the provisions of the Constitution of the Peoples Democratic Party and the Guidelines issued thereunder?
o. WHETHER by virtue of the Provisions of Section 87(7) of the Electoral Act the declaration of

the 2nd Defendant as the winner of the elective State Congress held on the 3rd of September, 2019 in which the Claimant was an aspirant, was not valid having failed to comply with the provisions Of Constitution of the Peoples Democratic Party, 2017 (as amended) and the electoral Guidelines for Primary election issued thereunder?
p. WHETHER by virtue of the Provisions of Section 87(4) (ii) of the Electoral Act (as amended), the submission of the name of the Defendant purportedly submitted by the 1st Defendant to the 3rd Defendant as the winner of the elective State congress held on the 3rd day of September, 2019 in which the Claimant was an aspirant is not wrongful, irregular and invalid, in view of the infractions of the provisions of the constitution of the Peoples Democratic Party, 2017 (as amended) and the electoral guidelines for Primary Election issued thereunder?
If the above questions were resolved in favour of the 1st Cross Respondent, he sought the following reliefs against the Cross Appellants, jointly and severally:
i. A DECLARATION that pursuant to the provisions of Section 251 (1) (q) of the Constitution of the Federal Republic of Nigeria (as amended),

Section 87(7) Electoral Act, 2010, the 3rd Defendant has the duty to ensure that Congresses of political parties inclusive of the 1st Defendant are conducted in compliance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Electoral Act, 2010 (as amended) and Constitution of the Political Parties inclusive of the Constitution of the 1st Defendant, 2017 (as amended) and Guidelines issued thereunder.
ii. A DECLARATION by virtue of the Provisions of Section 87 (7) of the Electoral Act (as amended), the 1st Defendant has a duty to comply with the provisions of the Constitution of the Peoples Democratic Party, 2017 (as amended) and the Guidelines issued thereunder with respect to the nomination of its candidates at the elective Special Congress held on the 3rd of September, 2019 for the Bayelsa State Governorship election.
iii. A DECLARATION that by virtue of the Provisions of Section 87(7) of the Electoral Act 2010 (as amended), the 1st Defendant ought to comply with the provisions of the Article 8(10) of the Constitution of the Peoples Democratic Party with regards to the statutory delegates

who ought to vote at the elective Congress held on the 3rd of September, 2019 for the Bayelsa State Governorship election.
iv. A DECLARATION that by virtue of the Provisions of Section 87(7) Of the Electoral Act 2010 (as amended), the election of Ad hoc delegates who have allowed to participate at the elective Special Congress of the Defendant held on the 3rd Of September, 2019 ought to comply with the provisions of Article 2 and paragraphs IV and V of the Guidelines issued thereunder.
v. A DECLARATION that by virtue of Order of the Federal High Court, Port Harcourt division in FHC/PH/193/2019 between CDR KOKU IMAANAGHA (RTD) & ORS VS. PDP & ORS Coram Justice: OMOTOSHO, inclusion of the 315 ad hoc delegates (whose elections were subject to a challenge) in the common ballot box used in the elective special congress of the 1st Respondent held on the 3rd day of September, 2019 contrary to the express orders of this Court under reference does not vitiate the entire process.
vi. A DECLARATION by virtue of the Provisions of Section 87(7) of the Electoral Act, 2010 (as amended) the elective State Congress of the Defendant held on the 3rd of

September, 2019 in which the Claimant was an aspirant, whereat, the 2nd Defendant was purportedly a winner, is invalid having failed to comply with the provisions of Section 251 (1) (q) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 87(7) of the Electoral Act, 2010 (as amended), the Constitution of Peoples Democratic Party and Article 2 paragraph iv and v of the Electoral Guidelines for Primary Elections issued thereunder.
vii. A DECLARATION that by virtue of the provisions of Section 87(7) of the Electoral Act (as amended) the declaration of the 2nd Defendant as the winner of the elective State Congress held on the 3rd of September, 2019 in which the Claimant was an aspirant was invalid for failing to comply with the provisions of Constitution of the Peoples Democratic Party, 2017 (as amended) and the Electoral Guidelines for Primary election issued thereunder stated above.
viii. A DECLARATION by virtue of the Provisions of Section 87(4) (ii) of the Electoral Act (as amended), the purported submission of the name of the Defendant by the Defendant to the 3rd Defendant as the winner of the elective State Congress held on the

3rd September, 2019 in which the Claimant was an aspirant is wrongful, invalid and of non (sic) effect in view of the infractions of the provisions of the Constitution of the Peoples Democratic Party, 2017 (as amended) and the Electoral Guidelines for Primary Election issued thereunder stated above.
ix. An Order setting aside the elective State Congress of the 1st Defendant held on the 3rd of September, 2019 in which the Claimant was an aspirant and the 2nd Defendant purportedly returned as the winner for being invalid in view of the infractions of the provisions of the Constitution of the Peoples Democratic Party, 2017 (as amended) and the Guidelines issued thereunder.
x. An Order setting aside the purported submission of the name of the 2nd Defendant by the 1st Defendant to the 3rd Defendant as its candidate for the Bayelsa State Governorship elections scheduled for the 16th day of November, 2019 in view of the infractions of the provisions of the Constitution of the Peoples Democratic Party, 2017 (as amended) and the Guidelines issued thereunder with respect to the elective special congress held on the 3rd of September, 2019.
xi. An Order directing the 1st

the Defendant to conduct fresh primary elections for the nomination and sponsorship of candidate for the forthcoming governorship election in Bayelsa.
In support of his claim, the 1st Cross Respondent had deposed to a 54 paragraph affidavit. On specific allegations concerning the inclusion of the votes of 315 Ad-hoc delegates in the common ballot boxes at the special elective Congress, he deposed:
34. I know as a fact that pursuant to the provisions of the Electoral Act which requires the delegates to vote at the Congress of the political party, the defendant acting under the provisions of exhibit NA4 stipulated the manner for the election of three (3) Ad hoc delegates from the wards to participate in the State Congress. The guideline is Exhibit NA5.
35. However, the election of the three (3) ad hoc delegates was a farce in Bayelsa State and along with some other aspirants, we wrote a petition to the 1st Defendant. A Copy at the Petition to the 1st defendant is herein annexed as Exhibit NA8.
36. Upon receipt of our petition, the 1st Defendant empanelled a committee to look into our compliant and come up with its findings.
37. The committee

which was empanelled by the 1st Defendant found reasonable ground in the petitions and recommended an amicable resolution in order to have a united front as a party. A copy of the report by the Committee is herein annexed and marked as Exhibit NA9.
38. That the recommendations were not implemented by the 1st defendant before the conduct of the elective special congresses.
39. Sequel to this substantial irregularity that marred the election, some concerned members of the party commenced an action before the Federal High court, Port Harcourt Division in FHC/PH/193/2019 between CDR KOKU IMAANAGHA (RTD) ORS V PDP & ORS Coram Judice: OMOTOSHO, J. wherein the Court ordered inter alia, that the contentious 315 ad hoc delegates be separated from the ballot of the undisputed delegates. A copy of the Order is herein annexed and marked as Exhibit NA10.
40. However, and despite the orders and pendency of exhibit NA8, the Defendant included and/or failed to separate the disputed ad hoc delegates from the residue of the undisputed delegates in the elective special congresses that took place on the 3rd day of September 2019.
41. I know a fact that before the

start of the elective State Congress held on the 3rd of February: 2019. I drew the attention of the officials of the 1st Defendant to the contents of exhibit NA8.
42. I know a fact that I participated in the said elective State Congress without prejudice to my right to protest and object to the infractions of the PDP Constitution and Guidelines issued thereunder. which fact was verbally communicated to the 1st Defendant through its officials.
43. I know that the inclusion of the disputed 315 adhoc delegates in the Common ballot was in violation of the orders of a Court of competent jurisdiction.
44. I know as a fact that the total number of the 4th defendants is 121 (One hundred and twenty one) delegates who participated in the primary election on the 3rd day of September, 2019.
45. I equally know that a total number of the 5th Defendant’s delegates who participated in the primary election held on the 3rd day of September, 2019 is 315 (Three Hundred and fifteen) delegates contrary to the constitution of the 1st Defendant and the Guidelines issued thereunder and the pendency of the suit.
46. That the total number of ineligible delegates

(both adhoc and statutory) who participated in the elective State congresses which held on the 3rd day of September, 2019 is 436 (Four Hundred and Thirty Six) exceeds the margin of lead between the two leading candidates (i.e. myself and the 2nd Defendant) and this substantive affected the result of primaries declared.
47. I know a fact that the 1st Defendant is bound to conduct its affairs especially the elective State Congress held on the 3rd of September, 2019 in accordance with the provisions of exhibits NA4 and NA5 respectively.
48. I know as a fact that it was the elective State Congress which was not conducted in compliance with the provisions of the exhibits NA4 and NA5 respectively that purportedly produced the 2nd Defendant as winner and the candidate of the 1st Defendant for the Governorship election Of Bayelsa State. A Copy of the Final declaration of the result is herein annexed and marked as Exhibit NA11.
Exhibit NA4 was the Constitution of the 1st Cross Appellant, pages 28 – 83 of the Record of Appeal. Exhibit NA5 was the Electoral Guidelines for Primary Elections of the Cross Appellant, pages 84 -111 of the Record of Appeal.

These Exhibits state the composition of delegates at a State Congress and provide guidelines for this composition. The 4th Cross Appellant, 315 delegates, were elected as ad hoc delegates at Ward Congresses. By letter, Exhibit NA8, the 1st Cross Respondent and some other aspirants, complained to the 1st Cross Appellant on the conduct of the said election of the ad hoc delegates. The 1st Cross Appellant thereupon set up a Panel to look into their complaint. Minutes of the meeting of the Panel was attached as Exhibit NA9, pages 124 – 126 of the Record of Appeal. At the said meeting, the 1st Cross Respondent and other aspirants, who were signatories to Exhibit NA8, demanded, inter alia, for the cancellation of the ad hoc delegates election, or in the alternative, for their exclusion from the primary election and only statutory delegates be permitted to vote in the gubernatorial primaries.
The 1st Cross Respondent in paragraphs 35 and 39 of his affidavit in support of the Originating Summons, described the election of the three ad hoc delegates per Local Government as a farce as there was substantial irregularity in the conduct

of their election. Although he had also complained about the inclusion of the votes of the 3rd Cross Appellant, his subsequent complaints were mostly anchored on the alleged controversial inclusion of the 315 votes of the 3 adhoc delegates per ward, the 4th Cross Appellant herein.
Now, the election of the 4th Cross Appellant, decried as a farce on account of alleged substantial irregularity in the conduct of their election was the foundation of the complaint in Exhibit NA8 dated 22/8/2019, the letter by which the 1st Cross Respondent, and some other aspirants, complained to the 1st Cross Appellant on the conduct of the said election of the ad hoc delegates. This complaint was also the foundation of Suit No: FHC/PH/193/2019: CDR Koku Imaanagha (RTD) & Ors v PDP & Ors. The interim order of Omotosho, J. therein, on which the 1st Cross Respondent also hinged his case, was made pursuant to a motion ex parte filed on 30/8/2019, Exhibit NAI0. In other words, as at 23/8/2019 when the said election of the 4th Cross Appellant (315 delegates) took place, the 1st Cross Respondent already had a complaint against the conduct of the said election by the 1st

Cross Appellant. Although he was not a party to Suit No: FHC/PH/193/2019: CDR Koku Imaanagha (RTD) & Ors v PDP & Ors, the complaint of the 1st Cross Respondent was also subsisting as at 30/8/2019 when the motion ex parte that gave rise to the interim order of Omotosho, J., was filed. That is to say, by 23/8/2019, the 1st Cross Respondent had a cause of action.
It sounds rather strange to me for Senior Counsel for the 1st Cross Respondent to argue that the cause of action arose on 3/9/2019 when the primary election was held. That argument is akin to attempting to remove an offending tree that has blocked an egress by only cutting the trunk without pulling out its roots. The complaint of the 1st Cross Respondent was that votes of the 315 ad hoc delegates were included in the primary election on 3/9/2019 and lumped together with votes of the statutory delegates. That was the trunk of the tree. Upon what was the 1st Cross Respondent’s said complaint on the inclusion of the votes of the 315 adhoc delegates hinged? If l may answer this rhetoric question, his complaint was hinged on the alleged substantially irregular election of the 315 ad hoc delegates on

23/8/2019, who upon that plinth were enabled to participate in the primary election of 3/9/2019. That was the root of his complaint. There would have been absolutely no complaint on the inclusion of the votes of the 4th Cross Appellant on the grounds raised in the Originating Summons if there had been no earlier objection as to the conduct of the election that saw their ascension into the position of ad hoc delegates, which was the basis of the interim order of Omotosho, J. The complaint on the said votes of the ad hoc delegates, the 4th Cross Appellant, cannot be separated from the further complaint on the inclusion of the votes of the statutory delegates represented by the 3rd Cross Appellant. The complaints stand together in the sense that the ballot boxes had mixed up their votes. Therefore, it cannot be said that the cause of action only arose after the election of 3/9/2019 when the said votes of the 3rd Cross Appellant statutory delegates were included.
The questions raised and the reliefs sought in the Originating Summons must be read comprehensively. In my considered view therefore, the cause of action leading to the Originating

Summons filed by the 1st Cross Respondent arose on 23/8/2019 when the offending election of the ad hoc delegates took place.
Section 285 (9) of the 1999 Constitution, as amended provides:
“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.”
Section 285(14) thereof clarifies:
“For the purpose of this Section pre-election matter means any suit by-
a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selections or nominations of candidates for an election.
b)…
c)…
The spirit and intention of these provisions is to fast track and limit the time for the determination of pre-election matters. This would ensure that they are disposed of before the conduct of the actual election.
A pre-election matter

connotes a cause of action which predates and does not constitute any complaint against the actual conduct of an election; APC v Umar (supra); Akpamgbo-Okadigbo & Ors v Chidi & Ors (2015) LPELR-24564 (SC) at page 23; INEC v Etene (2013) LPELR – 22108 (CA); Agboola & Anor v. INEC & Ors (2019) LPELR – 48743 (CA). The complaint of the 1st Cross Respondent had its foundation or root in the conduct of the election of ad hoc delegates on 23/8/2019 for participation in the party primary, which election was decried as a farce by the 1st Cross Respondent. The cause of action of the 1st Cross Respondent thus arose before the conduct of the 1st Cross Appellant’s primary election and certainly before the actual conduct of the election that produced the 2nd Cross Appellant as winner. The action of the 1st Cross Respondent was therefore well situated as a pre-election matter.
Now, it is settled law that if the time on which an originating process is filed is beyond the period allowed by a limitation law, then the action is statute barred and the Court would have no jurisdiction to hear it;Onyeke v. PDP & Ors (2019) LPELR – 47810 (SC);

Asaboro & Anor v. Pan Ocean Oil Corporation Nigeria Limited & Anor (supra) (2017) LPELR – 41558 (SC); ACN & Anor v. INEC & Ors (2013) LPELR 20300 (SC); Nasir v. Civil Service Commission Kano State & Ors (2010) LPELR – 1943 (SC). Section 285(9) of the 1999 Constitution, as amended prescribes a limitation to when a pre-election matter can be competently filed by an aggrieved party. By the said provisions, which I had reproduced above, a competent pre-election matter must be filed within 14 days of the event, decision or action complained of.
Having found that the cause of action of the 1st Cross Respondent arose on 23/8/2019, it would not be an advancement in rocket science to conclude that the Originating Summons filed by the 1st Cross Respondent on 13/9/2019 was statute barred. Being statute barred, the jurisdiction of the lower Court was automatically ousted. The lower Court lacked the vires to entertain the suit at all. The entire proceedings before the lower Court, for this reason, amounted to a futile exercise and ought to have been struck out; APC v Emenike (2019) LPELR 46620 (CA). In this circumstance, I hereby resolve the sole issue formulated in

favour of the Cross Appellants and against the 1st Cross Respondent.
Accordingly, the cross appeals of the 1st Cross Appellant, the 2nd Cross Appellant, the 3rd Cross Appellant and the 4th Cross Appellant hereby succeed. The decision of the lower Court delivered on 10/3/2020 in the pre-election matter, suit No FHC/OW/30/2020, filed by the 1st Cross Respondent, being adjudged to be statute barred, is hereby set aside. The 1st Cross Respondent’s Originating Summons filed on 13/9/2019 is accordingly struck out.

Parties are to bear their costs.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree.

RITA NOSAKHARE PEMU, J.C.A.: I agree.

Appearances:

I.A. Adedipe, SAN, with A. Adedipe, Esq.,
D. Atogbo, Esq., Somina Johnbull, Esq. for appellant/ 1st Cross RespondentFor Appellant(s)

Emmanuel Enoidem, Esq., with
Jerry Egemba, Esq., for the 1st Respondent/ 1st Cross Appellant

C.V.C. Ihekwazu, SAN, with C.C. Obiefule, Esq., and U. V. Dim, Esq., for the 2nd Respondent/ 2nd Cross Appellant

Mrs. Olachi Nwugo, Assistant Chief Legal Officer, INEC, for the 3rd Respondent/ 2nd Cross Respondent

Chuks Uguru, Esq., for the 4th Respondent/ 3rd Cross Appellant

F.N. Nwosu, Esq., with J.C. Uwandu, Esq., L.U. Mgberede, Esq and D.C. Nnabugo, Esq., for the 5th Respondent/ 4th Cross Appellant

For Respondent(s)

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