ALHAJI HAZEEM OLA GBOLARUMI v. PEOPLES DEMOCRATIC PARTY & ORS
(2019)LCN/13716(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of July, 2019
CA/IB/240/2019
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
ALHAJI HAZEEM OLA GBOLARUMI Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY (PDP)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. DR. KOLA BALOGUN Respondent(s)
RATIO
WHETHER OR NOT GROUNDS OF APPEAL MUST ARISE FROM THE DECISION OF THE COURT APPEALED AGAINST
It is settled law that grounds of Appeal must arise from the ratio decidendi of the decision appealed against and the issues formulated for the determination of the appeal must arise from the Grounds of appeal which emanated from the decision appealed against. See: – AWUSA VS. NIGERIAN ARMY (SUPRA). PER BADA, J.C.A.
WHEN A CAUSE OF ACTION IS SAID TO HAVE ACCRUED
It is pertinent to note that a cause of action will be said to have accrued when there is in existence a person who can sue and be sued, when all the facts which are material to be proved to entitle the Plaintiff to succeed are present.
See OWIE VS. IGHWI (2005) 2 NWLR (pt. 917) 184; JALLCO LTD. & ANOR VS. OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR (pt. 391) 534 and ASABORO VS. PAN OCEAN OIL CORPORATION (NIG.) LTD & ANOR (2017) 7 NWLR (pt. 1563) 42. PER OJO, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the Federal High Court, Ibadan Division, in Suit NO: – FHC/IB/CS/140/18 – BETWEEN: ALHAJI HAZEEM OLA GBOLARUMI VS. (1). PEOPLES DEMOCRATIC PARTY (PDP), (2). INDEPENDENT NATIONAL ELECTORAL COMMISSION, (3). DR. KOLA BALOGUN delivered on the 28th day of May 2019.
Briefly the facts of this case are that, the Appellant by an Originating Summons filed at the lower Court on 30th day of November 2018 prayed for the following reliefs: –
?(i). A DECLARATION that, having not registered as a member of the 1st Defendant, the 3rd Defendant cannot be nominated as the candidate of the 1st Defendant (PDP) in the 1st Defendant’s Senatorial Primary Elections to Oyo South District of the Oyo State for nomination into the 2019 General Election.
(ii). A DECLARATION that, having failed to participate in the Primary Elections of the 1st Defendant held on the 2nd of August, 2018, the 3rd Defendant is ineligible to be substituted with the winner of the said Primary Elections as the candidate of the 1st Defendant for the 2019 General
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Election.
(iii). A DECLARATION that, being, a registered member of the African Democratic Congress (ADC) and having been nominated and contested for the Governorship position in the said party, and also being currently involved in the litigation challenging the result of the said Primary Elections of African Democratic Congress (ADC), the 3rd Defendant is ineligible to contest and/or be substituted as the candidate for the 1st Defendant in the 2019 General Elections for Oyo South Senatorial District.
(iv). A DECLARATION that the substitution of Chief Bayo Lawal with the 3rd Defendant is null, void of no effect whatsoever.
(v). A DECLARATION that having conducted Primary Elections in the Oyo South Senatorial District on the 2nd of August, 2018 in accordance with the Guidelines of the 1st Defendant which was legally monitored and supervised by the Officials of the 2nd Defendant for the purpose of nominating the 1st Defendant’s candidate for the 2019 General Elections, it is mandatory for the 1st Defendant to nominate the Plaintiff to the 2nd Defendant, being the only (surviving) valid candidate and member of the 1st Defendant that participated in
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the said Election as from the time of the screening exercise for the said Primary Elections till the time of filing this suit.
(vi). AN ORDER of this Honourable Court nullifying the Certificate of Return issued to the 3rd Defendant and directing the 2nd Defendant to issue Certificate of Return to the Plaintiff as the winner of the primary election of the PDP conducted on the 2nd of August 2018.
(vii). AN ORDER of this Honourable Court declaring the Plaintiff as the rightful candidate for the 1st Defendant at the 2019 General Elections into the Oyo South Senatorial District of Oyo State.
(viii). AN ORDER directing the 1st Defendant to forward the name of the Plaintiff, who came 2nd in the Primary Elections of the 1st Defendant held on 2nd of August, 2018 as the rightful candidate of the 1st Defendant in the Oyo South Senatorial District of Oyo State, the adjudged winner, having withdrawn.
(ix). AN ORDER of this Honourable Court directing the 2nd Defendant to enter and recognize the Plaintiff as the 1st Defendant’s candidate in the Oyo South Senatorial District of Oyo State, having come 2nd and being the only subsisting bona fide member of the
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1st Defendant who participated in the Primary Elections.
(x). AN ORDER nullifying the substitution of the 3rd Defendant with the A (sic), their adjudged winner of the primaries of the 1st Defendant into o/s senator (sic) after the said Alhaji had reportedly withdrawn from the contest.
The Originating Summons was supported by a 41 paragraph Affidavit deposed to by the Appellant. The 1st Respondent in opposition to the summons filed a 42 paragraph Counter Affidavit and a Notice of Preliminary Objection hinged on the fact that the action is statute barred based on the application of Section 285(9) of the Constitution of the Federal Republic of Nigeria as amended (4th alteration, No. 21) Act 2017.
The 3rd Respondent who also opposed the summons filed Counter Affidavit and Notice of Preliminary Objection similar to that which the 1st Respondent filed.
The Appellant filed Counter Affidavit and Further Counter Affidavit in opposition to the Preliminary Objections of 1st and 3rd Respondents.
The 2nd Respondent also filed a Preliminary Objection on the ground of non-compliance with Section 97 of the Sheriffs and Civil Process Act. It also
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filed a Counter Affidavit in opposition to the Originating summons.
The parties by an order of Court filed their Written Addresses in respect of the Originating Summons.
The trial Court on 6/5/2019 heard the Originating Summons and all the Preliminary Objections together.
On 28/5/2019, the lower Court delivered its Judgment and struck out the suit of the Appellant on the ground that the action was statute barred.
The Appellant who is dissatisfied with the Judgment of the lower Court appealed to this Court.
The learned Counsel for the Appellant formulated two issues for the determination of the appeal. The said issues are hereby reproduced as follows: –
?(i).Whether the learned trial Judge was right when he held that the suit was statute barred having been filed in excess of the 14 days from the accrual of the cause of action as provided by Section 285 (9) of the Constitution of the Federal Republic of Nigeria (4th Alteration, No. 21) Act (as amended) (Distilled from Grounds 1, 2, 3, 4 and 5).
(ii).Whether this appeal is one that calls for the invocation of the powers of the Court of Appeal under
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Section 15 of the Court of Appeal Act and whether this Court can assume jurisdiction to give a Judgment on the merit. (Distilled from Grounds 6 and 7 of the Grounds of Appeal).?
The learned Counsel for the 1st Respondent formulated a sole issue for the determination of this appeal. The said sole issue is reproduced as follows: –
?Whether upon considering the Appellant?s (Then Plaintiff?s) supporting Affidavit to his Originating Summons alongside the Respondents? responses in opposition, the learned Judge at the lower Court was right in holding that the cause of action arose on 16th November 2018, being the date of occurrence of the event for the purpose of determining compliance with Section 285(9) of the 1999 Constitution (4th Alteration, No. 21) Act 2017.?
The 2nd Respondent?s Counsel who gave undertaking to file 2nd Respondent?s Brief of Argument before Friday the 12th day of July 2019 failed to file the said brief as promised.
The 3rd Respondent who filed a Notice of Preliminary Objection which he incorporated in his brief of Argument also formulated a sole issue for the determination of this appeal. The
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said sole issue is reproduced as follows: –
?Whether having regard to the Appellant?s pleading as constituted in its Originating Summons vis–vis the Respondents? response in opposition including all the Affidavit and documentary evidence of the parties before the trial Court; the trial Judge was right in holding that the cause of action arose on the 16th November 2018, as the date of occurrence of the event for the purpose of determining the compliance with Section 285 (9) of the 1999 Constitution (4th Alteration, No. 21) Act 2017.?
(Distilled from Grounds 1, 2, 3, 4 and 5).
?
At the hearing of this appeal on 16/7/2019 the learned Counsel for the Appellant stated that the appeal is against the Judgment of Federal High Court Ibadan Division delivered on the 28th day of May 2019. The Notice of Appeal was filed on the 7th day of June 2019 while the Record of Appeal was transmitted on the 18th day of June 2019. The Appellant?s Brief of Argument was filed on 25/6/2019 while it was re-filed on 15/7/2019. The Appellant?s Reply Brief of Argument were filed in response to 1st and 3rd Respondents? Brief of
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Argument on 12/7/2017.
The learned Counsel for the Appellant adopted and relied on the said Appellant?s Brief of Argument and Appellant?s Reply Brief of Argument in response to 1st and 3rd Respondents? briefs as his argument in urging that this appeal be allowed.
On the other hand, the leaned Counsel for the 1st Respondent referred to the 1st Respondent?s Brief of Argument filed on 5/7/2019. He adopted and relied on the said brief as his argument in urging that the appeal be dismissed.
The learned Counsel for the 2nd Respondent who was present in Court on the last date of adjournment and gave undertaking to file 2nd Respondent?s Brief on or before 12/7/2019 but he failed to file the brief as promised.
The learned Counsel for the 3rd Respondent referred to the 3rd Respondent?s Brief of Argument filed on 12/7/2019. He adopted and relied upon the said brief as his argument in urging that the appeal be dismissed.
?
I have perused the issues formulated for determination by Counsel for the parties to this appeal. The issues are more or less the same except for issue 2 being objected to by 3rd Respondent. I
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will therefore rely on the issue formulated on behalf of the Appellant because it is apt in the determination of this appeal.
Before I start the consideration of the issues in this appeal, I will first of all treat the Notice of Preliminary Objection filed on behalf of the 3rd Respondent.
PRELIMINARY OBJECTION BY 3RD RESPONDENT.
The learned Counsel for the 3rd Respondent filed a Notice of Preliminary Objection in the following terms:
?Take Notice that the 3rd Respondent shall at the hearing of this appeal rely upon the following Preliminary Objection as incorporated in his Brief of Argument and argued at paragraphs 6.0 ? 6.12.
The grounds of the objection are as follows: –
(1). Grounds 6 and 7 of the Appellant?s Notice of Appeal relate only to the decision of the trial Court on the issue of statute of limitation allegedly raised Suo Motu by the learned trial Court which was solely without deciding the merit of the case and not in respect of Section 15 of the Court of Appeal Act as argued by the Appellant purportedly on grounds 6 and 7 of Appellant?s Notice of Appeal.
(2) Issue two formulated from the
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above stated grounds is incompetent and liable to be struck out having not been predicated on grounds 6 and 7.
(3) Grounds 6 and 7 are deemed abandoned.
The Learned Counsel for the 3rd Respondent submitted that the Grounds of Appeal must arise from the ratio decidendi of the decision appealed against and the issues formulated for the determination of the appeal must arise from the Grounds of Appeal which emanated from the decision appealed against. He relied on the case of: – AWUSA VS. NIGERIAN ARMY (2018) 12 NWLR PART 1634 PAGE 443 ? 444 PARAGRAPHS H ? A .
He went further in his submission that Grounds 6 and 7 of the Appellant?s Notice of Appeal is against the decision of the trial Court which the Appellant alleged was based on the Issue of Statute of Limitation raised Suo Motu in spite of the fact that same had already been raised by the 1st and 3rd Respondents in their respective Notices of Preliminary Objection at the lower Court.
The Learned Counsel for the 3rd Respondent therefore urged that Appellant?s Issue two as formulated in this Court be struck out.
?
In his response, the Learned Counsel for the
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Appellant conceded that a Respondent could raise a Preliminary Objection in its Respondent?s brief but that such a Preliminary objection must have been paid for as a separate process in addition to the filing of the brief of Argument for it to be competent.
He urged that since the 3rd Respondent did not pay for the Notice of Preliminary Objection that this Court should discountenance it.
Let me quickly comment on this and my view is that there is no material before this Court from the Appellant that the Notice of Preliminary Objection was not paid for. Be that at it may, even if it was not paid for, it would only amount to an irregularity which ought to have been pointed out before the hearing of this appeal. I am therefore of the view that since the 3rd Respondent paid for the 3rd Respondent?s brief, the appellant has waived his right to complain since he did not draw the attention of the Court to the issue of non-payment before the hearing of the appeal commenced. Apart from the foregoing, the Appellant has also responded to the Preliminary Objection by filing his reply to the said objection.
?
Therefore the contention of the Appellant
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that the Preliminary Objection was not properly filed is hereby discountenanced.
The Learned Counsel for the Appellant submitted that Grounds 6 and 7 of the Appellant?s Notice of Appeal is directly related to the Issue No 2 formulated on behalf of the Appellant. He argued further that an issue calling for the invocation of Section 15 of the Court of Appeal Act is necessary. He relied on the case of: –
– EMIRATES AIRLINES VS NGONADI (NO. 2) (2014) 9 NWLR PART 1413 PAGE 506 AT 525.
Learned Counsel for the Appellant argued further that all that needed to be satisfied is for the necessary materials required for enabling condition of a successful invocation of the powers of this Court to be present in the appeal.
He contended that the Objection of the 3rd Respondent is nothing but a ploy to further delay the hearing of this appeal by the Respondent as powers of this Court under Section 15 of the Court of Appeal Act has no similarity with that of the lower Court.
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He went further that the appraisal of Grounds 6 and 7 will show that it captured the reasoning of the trial Court in refusing to go into the merit of the case of the
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Appellant and this subsequently matured to the need for this Court to invoke its powers as provided for under Section 15 of the Court of Appeal Act and hear the appellant?s case as Court of first instance. He relied on the following cases: –
– AGBAKOBA VS. INEC (2008) 18 NWLR PART 1119 PAGE 489 AT 534 AND 535.
– ODEDO VS. INEC (2008) 11 SCM PAGE 85.
– INAKOJU VS. ADELEKE (2007) 4 NWLR PART 1025 PAGE 423 AT 612 AND 707.
– AMAECHI VS. INEC (2008) 5 NWLR PART 1080 PAGE 227.
As could be seen from pages 893 to 895 of the record of Appeal, Grounds 6 and 7 of the Appellant?s notice of Appeal relate only to the decision of the trial Court on the issue of statute of limitation allegedly raised Suo Motu by the Learned trial Judge which was solely without deciding the merit of the case and not in respect of Section 15 of the Court of Appeal Act.
Issue 2 in this appeal which is being attacked by the 3rd Respondent states thus: –
?Whether this Appeal is one that calls for the invocation of the power of the Court of Appeal under Section 15 of the Court of Appeal Act, and whether this Court can assume jurisdiction to
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give a Judgment on the merit (Distilled from Grounds 6 and 7)?
In this appeal under consideration, Ground 6 and 7 of the Appellant?s Notice of Appeal is against the decision of the lower Court which the Appellant alleged was based on the issue of statute of Limitation raised Suo Motu in spite of the fact that same had already been raised by the 1st and 3rd Respondents in their Respective Notices of Preliminary Objections.
It is settled law that grounds of Appeal must arise from the ratio decidendi of the decision appealed against and the issues formulated for the determination of the appeal must arise from the Grounds of appeal which emanated from the decision appealed against. See: – AWUSA VS. NIGERIAN ARMY (SUPRA).
I am of the view that Issue (2) two does not arise from any of the Grounds of Appeal and most especially Grounds 6 and 7 of the Appellant?s Notice of appeal.
?The main purpose of formulating issue for determination is to enable the parties get focused on the real questions in controversy in the grounds of appeal. It is only issues formulated within the parameters of the grounds of appeal and stemming from the
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decision appealed from that are competent to be ventilated. If an issue is not related to any ground of appeal, it becomes irrelevant and liable to be struck out.
In KLM ROYAL DUTCH AIRLINES VS. ALOMA (2018) 1 NWLR PART 1601 PAGE 471 AT 493 PARAGRAPHS F ? H, it was held thus: –
?An appeal is determined on the issues for determination formulated by counsel or by the Court, such issues must arise from the grounds of Appeal. Any issue that does not arise from the grounds of appeal is incompetent and liable to be struck out. It is also settled that any ground of Appeal not covered by an issue for determination is deemed abandoned and liable to be struck out.?
In view of the foregoing issue No. 2 having not been formulated from any of the grounds of appeal most especially grounds 6 and 7 of the Appellant?s Notice of Appeal, it is incompetent and it is hereby struck out.
?
I am aware that there is no requirement of law which says that an Appellant must formulate issue on the application of Section 15 of the Court of Appeal Act before same can be properly invoked by the Court. The Court has the discretion to invoke and apply
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same in appropriate circumstances when the need arises and it is so deserving to do so. In INAKOJU VS. ADELEKE (2007) 4 NWLR PART 1025 PAGE 423 no such issue was formulated for determination before the Court decided to invoke its power to apply it.
Notwithstanding the above position, another reason why this Court cannot invoke Section 15 of the Court of Appeal Act is because the substantive issue in dispute in the suit at the trial Court has not been covered in the Notice and grounds of appeal.
There is no ground touching on the merit of the substance of the dispute at the trial Court i.e. the issue as to whether the 3rd Respondent was properly substituted or not or whether the 3rd Respondent was a member of the 1st Respondent or participated in its primary election have not been resolved.
The complaint of the Appellant is against the decision of the trial Court in declining jurisdiction to entertain the suit on the ground that the action was statute barred having been filed outside the 14 days prescribed by Section 285 (9) of the 1999 Constitution (as amended) (4th Alteration No. 21) Act 2017. The complaint as to whether 3rd Respondent was
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properly or improperly substituted as candidate of the 1st Respondent for the Oyo South Senatorial District or whether the 3rd Respondent was a member of the 1st Respondent when his name was substituted for Chief Bayo Lawal or whether he participated in the 1st Respondent?s primary election which are all issues to be resolved on merit in the claim of the Appellant before the lower Court.
In my view, the totality of the evidence on the Originating Summons had not been evaluated, no finding of fact had been made and no decision on the merit of any issue of law has been made on any of the questions for determination set out in the Appellant?s Originating Summons at the lower Court.
Therefore since the Court did not resolve or make a decision on any of the issues/questions raised from the Appellant?s claim, they are not capable of being distilled from the Appellant?s grounds of Appeal which was filed against the decision of the lower Court on jurisdiction and not on the merit of the case.
In the case of ? ATTORNEY GENERAL KWARA STATE VS. LAWAL (2018) 3 NWLR PART 1606 PAGE 266. A case similar to this case, the Supreme
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Court set aside the Judgment of the Court of Appeal for wrongly invoking the Provision of Section 15 of the Court of Appeal Act to assume the position of the trial Court to determine the matter on the merit on the ground that the trial Court failed to do so. The Supreme Court held thus: –
?The suit at the trial Court was struck out prematurely, and at that stage before the trial Court could exercise its discretion one way or the other on the evidence before it. No findings of fact had been made, and no decision on merit on any part of law or fact had been made. The enabling environment for the invocation of Section 15 of the Court of Appeal Act were not available at the time the Court below invoked Section 15 of the Court of Appeal Act to decide the merits of the Originating Summons in spite of the alleged conflicting affidavit evidence…<br< p=””
</br<
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?These provision of Section 15 of the Court of Appeal Act have been interpreted by this Court in a number of cases including ? OBI VS. INEC (2007) 1 NWLR PART 1046 PAGE 465; AMAECHI VS. INEC (2008) 5 NWLR PART 1080 PAGE 227; INAKOJU VS. ADELEKE (2007) 7 NWLR PART 1025 PAGE 423; AGBAKOBA VS. INEC (2008) 18 NWLR PART III9 PAGE 489; EZEIGWE VS. EZEIGWE (2010) 4 NWLR PART 1183 PAGE 159. In all these cases this Court consistently stated that for the provisions to apply the following conditions must exist to wit (a). that the lower Court or trial Court must have legal power to adjudicate in the matter before the Appellate Court can entertain it, (b). that the real issues raised by the claim of the Appellant at the lower Court or trial Court must be seen to be capable of being distilled from the ground of appeal; (c). that all necessary materials
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must be available to the Court for consideration; (d). that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and (e). that the injustice or hardship will follow if the case is remitted to the Court below must be clearly manifest.
Now taking condition (b) out of the five conditions enumerated by this Court in those cases above cited; the real issues raised in the Originating Summons are not capable of being formulated from the grounds of appeal contained in the Notice of Appeal before the Court below.
The Court below therefore acted in error of law when it invoked Section 15 of the Court of Appeal Act and decided the merits of the Originating Summons.
In the appeal before the lower Court, the dispute was whether the trial Court had vires to set aside its earlier order granting leave to the Claimants before it to sue in a representative capacity.
From the grounds of appeal, the issues distilled therefrom, no aspect of the merits of Originating Summons was before the Court below to warrant its invocation of Section 15 of the Act was ultra vires. The Court
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below, therefore lacked jurisdiction to decide the merits of the Originating Summons at the interlocutory stage when the question was whether or not the suit at the trial Court was initiated in accordance with the due process of law for initiating it. The law is settled that at interlocutory stage no Court whether trial or appellate is allowed to delve into the substantive matter in pending matter and decide it. See: –
FSB INTERNATIONAL BANK NIG. LTD VS. IMANO NIG. LTD (2000) 11 NWLR PART 679 PAGE 620 AT 639.
See also the case of ? MAINSTREET BANK CAPITAL LTD. VS. NIG. RE (2018) 14 NWLR PART 1640 AT 452 PARAGRAPHS C-G.
In view of the foregoing; the Preliminary Objection succeeds and issue No. 2 formulated for determination on behalf of the Appellant is hereby struck out.
?
In view of my decision above I am now left
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with issue No. 1 formulated for determination by the Appellant. The issue is again reproduced as follows: –
ISSUE FOR THE DETERMINATION OF THE APPEAL
?Whether the learned trial Judge was right when he held that the suit was statute barred having been filed in excess of the 14 days from the accrual of the cause of action as provided by Section 285 (9) of the Constitution of Nigeria (4th Alteration No. 21) Act (as amended). Distilled from grounds 1, 2, 3, 4 and 5.?
The learned Counsel for the Appellant referred to the reliefs sought at the lower Court. He stated that the issue in the appeal revolves around the interpretation and application of the provision of Section 285 (9) of the 1999 Constitution of the Federal Republic of Nigeria.
He submitted that the wording of the above section of the Constitution is unambiguous and as such it should be interpreted and applied in the light of its ordinary grammatical meaning. He relied on the following cases: –
MABAMIJE VS. OTTO (2016) 13 NWLR PART 1529.
MARWA VS. NYAKO (2012) 6 NWLR PART 1296 PAGE 199 AT 280.
ADEWUMI VS. A.G. EKITI STATE (2002) 2 NWLR PART 751 PAGE 474
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AT 512.
CALABAR CENTRAL CO-OPERATIVE THRIFT AND CREDIT SOCIETY VS. EKPO (2008) 6 NWLR PART 1083 AT PAGE 392.
The learned Counsel referred to Exhibit GB1 to GB6 in the Further Affidavit of the Appellant (see pages 798 to 811 of the Record of Appeal).
The learned Counsel for the Appellant contended that it is the date of receipt of the letter of substitution by the 2nd Respondent is the date of the occurrence of the event and that is 17/11/2019.
He relied on the following cases ? AGBAKOBA VS. INEC (2008) 18 NWLR PART 1119 PAGE 489 AT 549.
JAFAR SANI BELLO VS. ABBA K. YUSUF & OTHERS SUIT NO:- SC.363/2019 delivered on 24/5/2019.
MOHAMMED SANNI MUSA VS. DAVID UMAR & OTHERS IN SUIT NO:- SC/405/2019 delivered on 14th June 2019.
APC & ANOTHER VS. ENGINEER SULEIMAN ALIYU LERE in Suit No. SC/222/2019 delivered on the 10th May 2019.
Learned Counsel finally urged this Court to resolve this issue in favour of the Appellant.
?In his response, the learned Counsel for the 1st Respondent argued that the question to ask in this appeal is when was the date of the occurrence of event, decision or action of the
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substitution of the name of Chief Bayo Lawal with the name of the 3rd Respondent by the 1st Respondent?
He contended that the adverse decision affecting the Appellant was taken by the 1st Respondent on the 16th of November 2018 when it accepted the letter of withdrawal written by Chief Bayo Lawal and issued the 3rd Respondent with INEC nomination forms which affected the right of the Appellant. He went further that the issuance of the INEC Forms to the 3rd Respondent which he completed on the 16th of November 2018 shows that the 3rd Respondent has become the candidate of the 1st Respondent as at that date thereby affecting the right of the Appellant to become a candidate of the 1st Respondent for the general election.
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He referred to the Affidavit in Support of the Originating Summons filed on behalf of the Appellant where it was deposed that the Appellant had been hearing the rumour of the substitution of the name of Chief Bayo Lawal with the 3rd Defendant which he confirmed on fresh F. M. radio on the 16th of November 2018. See page 12 of the record of appeal.
He referred to paragraphs 5 (e), (k) and (i) of the Counter Affidavit deposed to by
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Opeyemi Olanrewaju on 16th January, 2019 in opposition to the 3rd Defendant?s Preliminary Objection. The said paragraphs are set out as follows: –
?(e). in response to paragraph 14 of the said affidavit, whatever approval was made by the National Working Committee of the 1st Defendant and/or subsequent notice of such approval to the 2nd Defendant by the National Working Committee was not communicated to any member of the 1st Defendant as he only heard of such anomaly on the radio fresh F. M. on the 16th November, 2018.
(k). The news of the substitution of Chief Bayo Lawal was only made public and brought to his attention on the 16th of November, 2018 over a month after the said 1st Defendant Primary elections.
(i). further to depositions in the above paragraph he only got wind and confirmed of the allegedly substitution of Chief Bayo Lawal with Dr. Kola Balogun from the news on the 16th of November, 2018? See page 387 of the Record of Appeal.
?The learned Counsel for the 1st Respondent argued that from the above paragraphs, it is clear that the Appellant was aware of the withdrawal and substitution of Chief Bayo
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Lawal with the name of the 3rd Defendant by the 16th November 2018.
Exhibit ?A1? which is the INEC Form for nomination of member of Senate attached to the 3rd Defendant?s Further Affidavit in opposition to Plaintiff?s Further Counter Affidavit obtained, filed and submitted on 16/11/2018 by the 3rd Respondent for the substitution of his name with Chief Bayo Lawal was also referred to. See pages 679 to 692 of the Record of Appeal.
Paragraphs 4.7 ? 4.8 of the Written Address filed by the Plaintiff?s Counsel in opposition to the 3rd Defendant?s Preliminary Objection was also referred to, it is reproduced as follows:-
?4.7. We humbly refer your Lordship to the Affidavit in Support of the Originating Summons filed on the 30th day of November, 2018 particularly paragraph 26.
?26. That I thereafter confirmed this rumour as true when I heard on fresh F. M. and (sic) Ibadan based radio station that one Seyi Makinde, the Governorship candidate of the Party hold on Friday 16th of November, 2018 declared that the Oyo South Senatorial Candidate of the party had been substituted with the 3rd
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Defendant.
4.8. It is our emphatic submission that the date or event which the cause of action accrues to the Plaintiff is on the 16th of November, 2018.? See page 394 of the record.
It was submitted on behalf of the 1st Respondent that parties and Counsel cannot reprobate and approbate, especially on admitted facts. Counsel relied on the following cases ?
– AKANINWO VS, NSIRIM (2008) ALL FWLR PART 410 PAGE 610 AT 663.
– AJIDE VS. KELANI (1985) 3 NWLR PART 12 PAGE 248.
It was also submitted that the submission at Appellant?s Counsel that the date of the event of the substitution was 17/11/2018 when the 2nd Respondent received the 1st Respondent?s said letter dated 16/11/2018 is to mislead the Court and he urged this Court to discountenance same in the determination of the time the cause of action accrued.
The learned Counsel for the 1st Respondent urged this Court to hold that the cause of action arose on 16/11/2018 being the date of occurrence of event and this action filed on 30/11/2018 is out of the stipulated period of 14 days from the date of cause of action and same is liable to be struck
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out.
Section 33 and 35 of the Electoral Act 2010 (as amended) was also referred to and it was submitted that flowing from the sections, it is clear that a political party has the exclusive right to substitute its candidate whose name has been submitted to the INEC, if its candidate withdraws or dies. He relied on ? WADA VS. BELLO (2016) 17 NWLR PART 1542 PAGE 374 AT 425 PARAGRAPH D.
It was also submitted on behalf of the 1st Respondent that the date of receipt of the letter of substitution by the 2nd Respondent cannot be the date of the occurrence of event of the substitution of the candidate and that it would have taken place before notifying the 2nd Respondent.
Learned Counsel for the 1st Respondent finally urged that this issue be resolved in favour of the 1st Respondent and dismiss the appeal.
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The learned Counsel for the Appellant in his Reply Brief of Argument submitted that the issues and argument in the 1st Respondent?s Brief of Argument do not emanate from the Judgment of the lower Court and does not flow from the Grounds of Appeal filed by the Appellant, he went further that such argument is incompetent and irrelevant and
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should be discountenanced.
He relied on the following cases: –
– CONOIL PLC VS. VITOL S. A. (2012) 2 NWLR PART 1283 PAGE 50 AT 71.
– SHODEINDE VS. LAWAL (2012) 9 NWLR PART 1304 PAGE 38 AT 43.
– OZIGBO VS. PDP (2010) 9 NWLR PART 1200 PAGE 601 AT 631 TO 632,
– NSIRIM VS. AMADI (2016) 5 NWLR PART 1505 PAGE 42 AT 59.
– UGO VS. OBIEKWE (1989) 1 NWLR PART 99.
– OSINUPEBI VS. SAIBU (1982) 7 S.C. PAGE 104.
– WESTERN STEEL WORKS VS. IRON & STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR PART 49 PAGE 284.
Finally on the issue under consideration to determine when the cause of action arose, learned Counsel for the Appellant relied on the case of ? KASIMI BELLO MAIGARI VS. HON. AMINU IBRAHIM MALLE & 2 OTHERS SUIT NO. SC/454/2019 delivered on 13/6/2019.
He urged that this issue be resolved in favour of the Appellant.
On 16/7/2019 when this appeal was argued the 2nd Respondent was not represented in Court and the 2nd Respondent?s brief was not in the Court?s file.
?
The learned Counsel for the 3rd Respondent in his own case argued that the question in this appeal is when was the date of
29
occurrence of event, decision or action on the substitution of the name of Chief Bayo Lawal with the name of the 3rd Respondent by 1st Respondent.
He referred to the Affidavit in Support of the Originating Summons deposed to by the Appellant that he had been hearing of the rumour of the substitution of the name of Chief Bayo Lawal with the 3rd Respondent which he confirmed on fresh F. M. radio on 16/11/2018.
He submitted that the Appellant was aware of the withdrawal and substitution of the 3rd Respondent for Chief Bayo Lawal as 1st Respondent?s candidate for Oyo South Senatorial District done on the 16/11/2018. He relied on Exhibit ?A1? attached to the 3rd Respondent?s Further Affidavit in opposition to Appellant?s Further Counter Affidavit which is the INEC Form for nomination of member of senate obtained filed and submitted on 16/11/2018 by the 3rd Respondent for the substitution of his name with Chief Bayo Lawal. (See pages 679 to 692 of the record of appeal).
?
It was submitted on behalf of the 3rd Respondent that the submission of the Appellant?s Counsel that the date of occurrence of the event of the
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substitution was 17/11/2018 when 2nd Respondent received the 1st Respondent?s said letter dated 16/11/2018 is just to mislead the Court. He urged that the Appellant?s submission be discountenanced. It was submitted further that parties at the trial Court joined issues on the 16/11/2018 as the date of cause of action. He stated that an appeal is an invitation to a higher Court to undertake the review on a complaint against the decision of the lower Court.
He relied on the case of ? INAKOJU VS. ADELEKE (SUPRA).
– JADESIMI VS. OKOTIE-EBOH (1986) 1 NWLR PART 16 PAGE 264.
Learned Counsel for the 3rd Respondent also contended that it is not in doubt that the cause of action arose on the 16th November 2018 being the date of the occurrence of event and this action filed on the 30th November 2018 is out of the stipulated period of 14 days from the date of cause of action and same is liable to be struck out. He urged this Court to uphold the decision of the lower Court.
?
The learned Counsel for the Appellant in his Reply Brief of Argument contended that if this Court were to venture into argument proffered by the 3rd Respondent on the
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issue of when time began to run as contained in paragraphs 5.1 to 5.56 of the 3rd Respondent?s Brief of Argument that the death knell of the issue of when a cause of action arose on the issue of substitution at INEC and compliance with Section 285 (9) of the 1999 Constitution (as amended), has been sounded finally laid to rest by the Supreme Court in the case of ? BELLO MAIGARI VS. HON. AMINO IBRAHIM MALLE & 2 OTHERS delivered on 13/6/2019 in Suit No: SC.454/2019.
He urged this Court to be bound by the above decision.
RESOLUTION
The reliefs sought by the Appellant were set out earlier in this Judgment. The issue for determination in the appeal revolves around the interpretation and application of the Provisions of Section 285 (9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The said Section 285 (9) of the 1999 Constitution of the Federal Republic of Nigeria provides thus: –
?Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date to the occurrence of the event, decision or action complained of in the
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suit.?
A careful reading of the above section of the Constitution reproduced would reveal that the central words for the purpose of fixing time are:- occurrence of the event, decision or action complained of in the suit.
The brief facts which led to this appeal are that sequel to the withdrawal by Chief Bayo Lawal as the candidate of PDP the 1st Respondent who emerged as winner of the primary election conducted for the nomination of a candidate for Oyo South Senatorial election in the 2019 general election, the PDP i.e. the 1st Respondent substituted Chief Bayo Lawal with name of the 3rd Respondent who according to the Appellant is not a member of PDP i.e. the 1st Respondent and who did not participate in the primary election conducted by the PDP i.e. 1st Respondent. It is the Appellant?s contention that if PDP i.e 1st Respondent is to substitute another candidate for Chief Bayo Lawal it must be him being that he was the runner up.
The Appellant filed the Originating Summons where he asked for ten reliefs on 30/11/2018.
The Respondents in their response contended that the suit as constituted is statute barred having regard to
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the Provisions of Section 285 (9) of the 1999 Constitution (as amended) 4th Alterations Act. It was also contended that the suit was wrongly commenced by way of Originating Summons in view of the fact that the issues for resolution in the suit are founded on hotly disputed facts among others.
It was stated that before trial, the learned trial Judge sought for the consensus of the parties for the Originating Summons and Preliminary Objections to be heard together. The leaned trial Judge also raised the issue of Section 285 (9) of the 1999 Constitution of the Federal Republic of Nigeria (4th Alteration No. 21) Act.
The trial Court heard the suit on 6/5/2018.
The learned trial Judge on 28/11/2018 before striking out the suit on the ground that it was statute barred pursuant to Section 285 (9) of the 1999 Constitution of the Federal Republic of Nigeria (4th Alteration No. 21) Act 2017 held among others thus:-
?It is a fact that the parties are in agreement to the fact that the letter of 1st Defendant to the 2nd Defendant on the substitution was written on the 16th day of November 2018 their disagreement only borders on when the cause of
34
action is said to have arisen for the purpose of computation of time. Thus while the Plaintiff contends that it is on the date of the receipt of the letter for substitution by the 2nd Defendant or the date of the publication of the newspaper, the 1st ? 3rd Defendants contend that it is the day of the occurrence of the event i.e. the date of the substitution on the 16/11/2018.?
Under Section 35 of the Electoral Act 2010 (as amended) a candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the commission not later than 45 days to the election.
In this case, the 1st Defendant?s letter as a Political Party which conveyed the withdrawal of Mikail Adebayo Lawal as PDP Senatorial Candidate of Oyo Senatorial District of Oyo State to the 2nd Defendant which is the second Respondent was received by the Commission on 17/11/2018. (See Exhibit GB2 on pages 802 to 803 in the Record of Appeal).
?(See also Exhibits ?GB1? to ?GB6? in the Further Affidavit of the
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Appellant who is the Plaintiff at the lower Court on pages 798 to 811 of the record of appeal.)
I am of the view that the Appellant cannot complain until the letter of withdrawal is received by INEC i.e. the 2nd Respondent. The fact that the Appellant asserted that he heard rumour of the purported substitution on the 16th November 2018 is of no moment. The cause of action accrued on 17/11/2018 when the 2nd Respondent received the letter of the 1st Respondent which conveyed the withdrawal of M. A. Lawal and substitution of the 3rd Respondent to the Commission i.e INEC.
Therefore contrary to the view held by the lower Court, the 17th November 2018 is a date within the 14 days prescribed by Section 285 (9) of the 1999 Constitution of the Federal Republic of Nigeria as amended (4th Alteration Act No. 21) Act 2017, since the Appellant instituted his action at the lower Court on 30/11/2019.
I am fortified in my view above by the following decisions: –
– JAFAR SANNI BELLO VS. ABBA K. YUSUF & OTHERS SUIT NO. ? SC.363/2019 delivered on 24/5/2019.
– ALL PROGRESSIVE CONGRESS (APC) & ANOR VS. HONOURABLE JOHN HALIMA AGODA & ANOTHER
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SUIT NO. ? CA/B/124/2019 delivered on 1/4/2019.
– MOHAMMED SANNI MUSA VS. DAVID UMAR & OTHERS SUIT NO. ? SC/405/2019 delivered on 14/6/2019.
– ALL PROGRESSIVE CONGRESS APC & ANOR VS. ENGINEER SULEIMAN ALIYU LERE SUIT NO. ? SC/222/2019 delivered on 10/5/2019.
In view of the foregoing, this issue No. 1 being the only surviving issue is resolved in favour of the Appellant which means that his action at the lower Court was competent as at the time it was filed. In the result, the Judgment of the lower Court in Suit NO:- FHC/IB/CS/140/18 – BETWEEN: ALHAJI HAZEEM OLA GBOLARUMI VS. (1). PEOPLES DEMOCRATIC PARTY (PDP), (2). INDEPENDENT NATIONAL ELECTORAL COMMISSION, (3). DR. KOLA BALOGUN delivered on 28/5/2019 is hereby set aside. And in its place, this suit could have been sent back to the trial Court for full trial since it was determined based on Jurisdiction. But in view of the fact that the action had become statute barred at the lower Court because it had only 180 days to hear and determine it. See ? Section 285(10) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (4th Alteration Act No. 21) Act 2017.
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In the circumstance, this suit being a pre-election matter is hereby struck out.
See ? ONYEKE ALPHAEUS ONYEKE VS. PEOPLES DEMOCRATICE PARTY & OTHERS (2019) LPELR ? 47810 (SC).
– BARRISTER AYODELE MUSIBAU KUSAMOTU VS. ALL PROGRESSIVE CONGESS (APC) & OTHERS (2019) LPELR ? 46802 (SC).
There shall be no order as to costs.
NONYEREM OKORONKWO, J.C.A.: In appraising the lead judgment in this appeal by my learned brother, one must have due regard to the provision of Section 35 of the Electoral Act 2011 which provides thus:
A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the Political Party that nominated him for election and the political party shall convey such withdrawal to the Commission and which shall only be allowed not later than 45 days to the election.
The processes in the withdrawal comprise notification to the Political Party and the Political Party to convey to the commission-two ideas conjoined by a conjunctive article “and”. The two events must be true and present to constitute the event. It is the notification to INEC that completes the event.
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Another aspect of the lead judgment to be understood in proper light is Section 15 of the Court of Appeal Act which provides thus:
The Court of Appeal may, from time to time, make any order necessary for determining the real question- in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be reheard by a Court of
39
competent jurisdiction.
“To have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal” is limited to the materials before the lower Court. If no materials had been presented before the lower Court the Court of Appeal is hamstrung and cannot go beyond materials before the lower Court.
The lead judgment of my Lord Jimi Olukayode Bada, JCA was appropriately guided by these beacons in arriving at the conclusions in the lead judgment.
I agree with those conclusions.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege to read before now the draft of the judgment in this appeal just delivered by my learned brother, Jimi Olukayode Bada, JCA. I agree with the reasoning and conclusion reached therein.
The facts of the case that led to the filing of the suit at the lower Court by the Appellant have been fully set out in the lead Judgment.
?
The lower Court in its Judgment delivered on the 28th May 2019 struck out the Appellant’s suit on the ground that it had no jurisdiction to entertain same. The trial judge held at page 75 of the Record as follows:
<br< p=””
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“Having reviewed the law as above, I have no doubt in my mind that the Plaintiff’s cause of action in the instant case accrued on the 16th day of November, 2018 when the 1st Defendant made the substitution of Chief Bayo Lawal with the 3rd Defendant and time started to run for the purposes of computation of time as provided by the provisions of Section 285 (9) of the 1999 Constitution as amended”.
The law is trite that the determination of when a cause of action accrues is determined from the totality of the claim of the Plaintiff. See WOHEREM VS. EMEREUWA (2004) 13 NWLR (pt. 890) 398; ABIOLA VS. OLAWOYE (2006) 13 NWLR (pt. 996) 1; EGBE VS. ADEFARASIN (1987) 1 NWLR (pt. 47) 1. In the case of NWEKE VS. UNIZIK AWKA (2017) 18 NWLR (pt. 1598) 454 @ 475 paras A – B, the Supreme Court per AUGIE JSC held as follows:
“To determine whether an action is statute barred, the Court looks at the Plaintiff’s Writ of Summons and statement of claim alleging when the wrong was committed by the Defendant. In other words when the cause of action accrued and situate with that when the writ of summons was filed in Court. If the date of filing is beyond that permitted
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by statute, then the action is statute barred”.
The limitation law in issue in this appeal is Section 285 (9) of the Constitution of the Federal Republic of Nigeria (as amended) which provides as follows:
“Notwithstanding anything to the contrary in this Constitution every pre-election matter shall be filed not later than 14 days from the date of occurrence of the event, decision or action complained of in the said suit”.
While subjecting the above provision to judicial interpretation, MUHAMMAD JSC in the case of JAFAR SANI BELLO VS. ABBA K. YUSUF & ORS. 2019 LPELR – 47918 @ 18 -19 paras E – C held as follows:
“I am unable to agree with learned Counsel that Appellant’s cause of action begins to run, by virtue of the limitation prescribed under Section 285 (9) of the 1999 Constitution as altered, from the time he becomes aware of the 1st Respondent’s non-compliance which, on the latter’s participation in the Primary election, creates Appellant’s right to sue. The clear and unambiguous section neither makes knowledge on the part of the Appellant a pre- condition to the filing of his action nor excludes the date his cause of action
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accrues in the determination of when time begins to run against him. By the Section, Appellant’s knowledge of 1st Respondents non- compliance with 2nd Respondent’s Constitution and Electoral Guidelines is immaterial”.
It is thus very clear that knowledge of the fact of substitution by the instant Appellant on the 16th of November 2018 is not relevant in computing when the combination of facts crystalized into a cause of action.
?The relevant date to the computation of time in the instant case is the date of submission of the 3rd Respondent’s nomination form to the 2nd Respondent. Parties are ad idem that the said form was submitted on the 17th of November 2018. It is clear from the Record that the form was submitted to the 2nd Respondent on the 17th of November 2018. This is evident from the stamp of the 2nd Respondent on the form. The 1st Respondent took action on the withdrawal and substitution on the 17th of November 2018 by submitting the relevant forms to the 2nd Respondent who endorsed it accordingly. See pages 67.7. ? 692 of the record. It is pertinent to note that a cause of action will be said to have accrued when there is in
43
existence a person who can sue and be sued, when all the facts which are material to be proved to entitle the Plaintiff to succeed are present.
See OWIE VS. IGHWI (2005) 2 NWLR (pt. 917) 184; JALLCO LTD. & ANOR VS. OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR (pt. 391) 534 and ASABORO VS. PAN OCEAN OIL CORPORATION (NIG.) LTD & ANOR (2017) 7 NWLR (pt. 1563) 42.
It is my firm view that all material facts crystallized into a cause of action on the date the 1st Respondent submitted the name of the 3rd Respondent to the 2nd Respondent which is the 17th of November 2018.
The cause of action was still inchoate as at the 16th of November 2018. The lower Court was therefore clearly in error when it held that the Appellant’s suit was filed out of time by virtue of Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 because the cause of action arose on the 16th of November 2018.
?
Learned Counsel to the Appellant has urged us to invoke our powers under Section 15 of the Court of Appeal Act and determine this case on its merits. Section 15 of the Court of Appeal Act vests this Court with the power to assume the
44
jurisdiction of the lower Court for the purpose of determining the real controversy between parties before it in the place of making an order that the matter be remitted back to the lower Court to be heard on its merits. There are however limits to the exercise of the said power. In other words, there are conditions precedent to the exercise of the powers of the Court pursuant to Section 15 of the Court of Appeal Act. The Supreme Court in the case of OBI VS. INEC & ORS (2007) 11 NWLR (pt. 1046) pa. 560 at 639 ? 640 paras E ? C held per Aderemi, JSC as follows:
“Broadly speaking, the provisions of Section 16 of the Court of Appeal Act confer legal power on the Court of Appeal to make any order which the Court below could have made in the interest of justice. This presupposes that the Court below, the Court of Appeal, must have got jurisdiction to entertain the suit and the Court below it also had jurisdiction in the matter but failed to exercise it. The provisions do not confer on the Court of Appeal the power to make an order which the trial Court could not have made in resolving the dispute between the parties in the suit before
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it. The purpose of Section 16 aforesaid, is in my view, to obviate delayed justice. It follows from what I have been saying above, that certain conditions must be present before the provisions of this section can be invoked; and they are:
“(1) the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it;
(2) the real issue raised up by the claim of the appellant at the lower Court or trial Court must be capable of being distilled from the grounds of appeal;
(3) all necessary materials must be available to the Court for consideration;
(4) the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and
(5) the injustice or hardship that will follow if the case is remitted to the Court below, must clearly manifest itself”.
See FALEYE & ORS VS. OTAPO & ORS. (1995) 3 NWLR (PT. 381) 1; INAKOJU C ADELEKE (2007) 1 S.C. (PT. 1) 1; (2007) 4 NWLR (PT. 1025) 423 and DAPIANLONG & ORS VS, DARIYE (2007) 4 S.C. (PTA 111) 118; (2007) 8 NWLR (PT. 1036) 239″.
?This law is thus
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well settled that the power vested in this Court may only be exercised in instances where the lower Court is vested with jurisdiction to hear and determine the matter. It is in this regard that the provisions of Section 285 (10) of the 1999 Constitution of the Federal Republic of Nigeria comes to play. It provides thus:
“285(10)
A Court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit”.
The above Section of the Constitution is a limitation law. It bars claims and extinguishes the jurisdiction of a Court to entertain a cause of action upon the lapse of the specified period in the relevant statute.
Section 285 (10) of the Constitution (supra) provides for a time limit within which the lower Court may exercise its jurisdiction to hear and determine any pre-election matter filed before it. The instant suit filed at the lower Court is in a pre-election matter. Parties are ad idem on this fact. The action must thus be determined by the lower Court within 180 days. This suit was filed at the lower Court on the 30th of November 2018.
?It follows therefore
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that by law, the lower Court must determine it by the 30th of May 2019 after which date it ceased to have jurisdiction. This Court cannot therefore assume its powers to exercise the jurisdiction of the lower Court which no longer exists. The jurisdiction of the lower Court became extinguished on the 30th of May 2019. This being so, this Court cannot exercise its discretion in favour of invoking its powers under Section 15 of the Court of Appeal Act.
?
It is for this and the fuller reasons given by my learned brother in the lead judgment that I also strike out the Appellant’s suit filed at the lower Court. I also abide by the consequential orders in the lead judgment.
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Appearances:
Mr. Ayodeji Esan with him, O. Aken’ Ova, Esq., Opeyemi Olanrewaju, Esq. and Ayodeji JohnsonFor Appellant(s)
Mr. Adeniyi Farinto for the 1st Respondent.
No Legal Representation for the 2nd Respondent.
Mr. Oluwasesan Dada 3rd for the Respondent
For Respondent(s)
Appearances
Mr. Ayodeji Esan with him, O. Aken’ Ova, Esq., Opeyemi Olanrewaju, Esq. and Ayodeji JohnsonFor Appellant
AND
Mr. Adeniyi Farinto for the 1st Respondent.
No Legal Representation for the 2nd Respondent.
Mr. Oluwasesan Dada 3rd for the RespondentFor Respondent