ALHAJI IDRIS MAMMAN GATUMBWA v. ALL PROGRESSIVE CONGRESS & ORS
(2019)LCN/13423(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2019
CA/J/152/2019
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
ALHAJI IDRIS MAMMAN GATUMBWA Appellant(s)
AND
1. ALL PROGRESSIVE CONGRESS
2. PROF. BABAGANA UMARA ZULUM
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
RATIO
THE PURPOSE OF A GROUND OF APPEAL
It is now trite in law that the aim or purpose of a ground of appeal is to give the opposing party notice of the case it has to meet at the appellate Court; and the grounds and particulars of error or misdirection alleged are intended to showcase the complaint against the decision appealed against. JULIUS BERGER & ANOR V. TOKI RAINBOW COMMUNITY BANK LTD (2019) LPELR ? 46408 (SC). With the trend of substantial justice, what the Court looks for in a ground of appeal and its particulars is that, on reading a ground of appeal and its particulars, the adverse party must be left in no doubt as to what the complaint of the appellant is. A ground of appeal and its particulars must therefore go together. Where the particulars in support of a ground are not related to the ground, the ground is incompetent. HAMBE V HUEZE (2001) 2 SC 26; ACCESS BANK PLC V SIJUWADE (2016) LPELR 40188 (CA). WAZIRI V. GEIDAM (2016) 11 NWLR (PT. 1523) 230 AT 256. Accordingly, it is not every failure to attend to Grounds of Appeal with the pernickety details prescribed by the rules of this Court that would render such grounds incompetent. Whenever sufficient particulars can be gathered from the grounds of appeal and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded, the grounds of appeal are adjudged competent. UKPONG AND ANOR V. COMMISSIONER FOR FINANCE AND ECONOMIC DEVELOPMENT AND ANOR (2006) LPELR-3349 (SC); HAMBE V. HUEZE (2001) 4 NWLR (PT. 703) 372; (2001) 5 NSCQR 343, 352. The Apex Court has greatly encouraged the Courts to make the very best they can out of a bad or inelegant ground of appeal in the interest of justice. DAKOLO AND ORS V. DAKOLO AND ORS (2011) LPELR-915. Therefore, bad or defective particulars in a ground of appeal would not, necessarily, render the ground itself incompetent.PRINCE DR. B. A. ONAFOWOKAN V. WEMA BANK (2011) 45 NSCQR 1; BEST (NIG) LTD. V. BLACK WOOD HODGE (2011) 45 NSCQR; ABE V. UNILORIN (2013) LPELR. The reason for this apparent shift are duo, firstly, the essence of Particulars is to project the reasons for the grounds complained of, the inelegance of the said particulars therefore would not invalidate the Grounds from which they flow. NNB PLC V. IMONIKHE (2002) 5 NWLR (PT. 760) 241, 310; D. STEPHENS IND. LTD. AND ANOR V. BCCI INTER (NIG.) LTD. (1999) 11 NWLR (PT. 625) 29, 3101. PER ONYEMENAM, J.C.A.
TIME FOR FILING EVERY PRE-ELECTION MATTER
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.?
The provision of Section 285(9) of the 1999 Constitution (as amended) is unambiguous and as such the words used therein ought to be accorded their ordinary grammatical meanings. By Section 285(9) of the 1999 Constitution (as amended), every pre-election action, case, cause or matter must be filed within 14 days from the date of the occurrence of the action, decision or event complained of in the suit. Accordingly, to determine whether a pre-election suit was filed within 14 days as stipulated by Section 285(9) of the 1999 Constitution (as amended), the Court ought to examine the processes originating from the claimant?s suit to determine either of the following:
(a) The date of the event complained of in the suit or
(b) The date of the decision complained of in the suit or
(c) The date of the action complained of in the suit.
It is a principle of law, that where a statute dictates a period of time for the institution of an action, the action shall not be commenced outside the time dictated by the statute. Where any action is brought outside the time prescribed by the statute such suit is said to be statute-barred. SOSAN V. ADEMUYIWA (1986) 3 NWLR (PT. 27) 241; ODUBEKO V. FOWLER (1993) 7 NWLR (PT. 308) 637; NIGERIAN PORTS AUTHORITY PLC. V. LOTUS PLASTICS LIMITED & ANOR. (2005) 19 NWLR (PT. 959) 158; NATIONAL REVENUE MOBILIZATION ALLOCATION & FISCAL COMMISSION & ORS.V. AJIBOLA JOHNSON & ORS (2019) 2 NWLR (PT. 1656) 247. PER ONYEMENAM, J.C.A.
FACTORS TO CONSIDER WHEN DEALING WITH STATUTES OF LIMITATION
It is therefore necessary when dealing with statutes of limitation to determine firstly the precise date the cause of action accrued because time will start to run from the moment the cause of action arose.WOHEREM V. EMEREUWA & ORS (2004) LPELR ? 3500 (SC); EBOIGBE V. N.N.P.C. (1994) 5 NWLR (PT. 347) 649; OKAFOR V. A-G ANAMBRA STATE (2005) 14 NWLR (PT. 945) 210. PER ONYEMENAM, J.C.A.
MEANING OF A CAUSE OF ACTION
Cause of action simply denotes the factual base or some factual situations, a combination of which makes the matter in litigation an actionable wrong or an enforceable right. THOMAS V. OLUFOSOYE (1986) 3 NWLR (PT. 18) 669; IBRAHIM V. OSIM (1988) 3 NWLR (PT. 82) 257; ALHAJI AMARU ABBA TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517. The Supreme Court, Per Augie, JSC, gave an elaborate meaning of cause of action as:
i. ?A cause of complaint;
ii. A civil right or obligation for determination by a Court of law;
iii. A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine;
iv. A consequent damage;
v. Every fact which would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the Court. It does not comprise every piece of evidence that is necessary to be proved;
vi. All those things necessary to give a right of action whether they are to be done by the Plaintiff or another person; and
vii. It is factual situation, which enables one person to obtain a remedy from another in Court in respect of injury.”
See: MATHEW IYEKE & 25 ORS. V. PETROLEUM TRAINING INSTITUTE & ANOR. (2019) 2 NWLR (PT. 1656) 217 AT 238.
To determine whether or not there is a cause of action or when a cause of action arose, it is only the plaintiffs originating processes, such as the writ of summons, the statement of claim, the originating summons and the affidavit in support thereof as the case may be that would be considered. ADIMORA V. AJUFO (1988) 1 NSCC 1005; COMBINED TRADE LIMITED V. ALL STATES TRUST BANK LIMITED (1998) 12 NWLR (PT. 576) 56; WILLIAMS V. WILLIAMS (2008) 10 NWLR (PT. 1095) 364. The Apex Court in: MRS. M.B. AMUSAN V. MR. DANIEL OBIDEYI (2005) 14 NWLR (PT. 945) 322 AT 328; per Kutigi, JSC (as he then was, later CJN); stated how to determine whether or not an action was instituted outside the time prescribed by a statute as follows:
?It has been decided that the period of limitation is only determinable by looking at the writ of summons and statement of claim alone to ascertain the alleged date of the wrong in question which gave rise to the 1st Respondents cause of action and by comparing that date with the date on which the Writ was filed. If the time pleaded in the Writ of summons or the statement of claim is beyond the period allowed by the limitation law, the action is statute barred. PER ONYEMENAM, J.C.A.
WHETHER OR NOT POLITICAL PARTIES MUST OBEY THEIR OWN CONSTITUTIONS
This Court has decided in quite a number of cases that political parties must obey their own constitutions as the Court will not allow them to act arbitrarily or as they like.See: UZODINMA V IZUNASO (NO2) (2011) 17 NWLR (PT 1275) 30 AT 60, UGWU V ARARUME (2007) 12 NWLR (PT 1048) 326 AT 914 PARAS. D – E; CPC V LADO (2011) 14 NWLR (PT 1266) 40 AT 91 – 92 PARAS, D – G? SEE: MATO V. HEMBER & ORS. (2018) 5 NWLR (PT. 1616) 258; (2018) ALL FWLR (PT. 925) 146; (2017) LPELR ? 42675 (SC). Commenting on Section 87 (9) still in Mato V. Hember (supra); Kekere ? Ekun, JSC statedAs stated by my learned brother in the lead judgment, this Court in a plethora of cases has asserted the fact that political parties must obey their own constitutions and guidelines and where necessary (as provided by law) the Courts will intervene and wield the big stick to prevent arbitrariness. The only way our democratic dispensation can work effectively is where every aspirant for political office, who is qualified to contest an election, is given an even playing field. The failure of internal democracy within our political parties, right from the grassroots level eventually leads to instability in the entire political system. The failure of internal democracy is one of the reasons why the Courts’ dockets are congested with pre-election disputes.In UGWU V. ARARUME (2007) 12 NWLR (PT. 1048) 376 @ 514 D-E, this Court per Mahmud Mohammed, JSC (as he then was) admonished:
“My lords, if we want to instill sanity into our human affairs, if we want to entrench unpolluted democracy in our body polity, the naked truth must permeate through the blood, nerve and brain of each and everyone of us. Although credit may not always have its rightful place in politics, we should try to blend the two so as to attain a fair, just and egalitarian society where no one is oppressed. Let us call a spade a spade!”
See also: UZODINMA VS IZUNASO (NO.2) (2011) 17 NWLR (PT. 1275) 30 @ 60 C-E: C.P.C. VS LADO (2011) 14 NWLR (PT. 1266) 40 @ 91-92 D-G. PER ONYEMENAM, J.C.A.
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This judgment is in respect of an appeal against the judgment of the Federal High Court, Maiduguri Judicial Division Coram Jude K. Dagat, J. In the said judgment which was delivered on 2nd April, 2019, the Court upheld the preliminary objection filed by the 1st& 2nd Respondents against the competence of the suit and dismissed same for being caught by statute of limitation as contained in Section 285 (9) Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017. The judgment of the trial Court is at pages 563-594 of the record.
?The Appellant by an Originating Summons dated and filed on 19th October, 2018; at the trial Court formulated the following questions for the trial Court?s determination;
QUESTIONS:
I. Whether in view of Section 87 of the Electoral Act, 2010 (as amended) and having regard to the provisions of Article 20 of the Constitution of the All Progressive Congress and the APC Guidelines for nomination of candidates for the 2019 General Elections 2019 indirect Primaries relating to conduct of APC Primaries, it
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is lawful for Governorship Appeal Committee of the 1st Defendant to uphold the election of the 2nd Defendant and for the 1st Defendant to recognize and forward the name of the 2nd Defendant as its Borno State Governorship candidate to the 3rd Defendant when lawful delegates were prevented from participating in the purported APC Primary Election of 30th September, 2018 that produced the 2nd Defendant.
II. Whether decision of the Appeal Committee on the declaration of the 2nd Defendant by the 1st Defendant as the winner of its Borno State Governorship Primary Election in the circumstance of this case is not irregular, illegal and void being in violation of Section 87 of the Electoral Act 2010 (as amended); Article 20 of the constitution of the 1st Defendant and the Guidelines for conduct of Governorship Primary Election issued by the 1st Defendant.
III. Whether in view of Section 87 of the Electoral Act, 2010 (as amended) and having regard to the provisions of Article 20 of the Constitution of the All Progressive Congress and the Guideline for nomination of candidates for the 2019 General Elections 2019 indirect Primaries relating to conduct of APC
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Primaries, it is lawful for the Appeal Committee of the 1st Defendant to uphold the election of the Defendant and for the 1st Defendant to recognize and forward the name of the 2nd Defendant as its Borno State Governorship candidate to the 3 Defendant when non delegates participated in voting exercise at the purported APC primary Election of 30th September, 2018 that produced the 2nd Defendant.
IV. Whether in view of the intimidation, harassment and chasing away of lawful delegates from the venue of the APC Governorship Primary Election in Borno State on the 30th September, 2018, in violation of Section 87 of the Electoral Act, 2010 (as amended) and Article 20 of the Constitution of the All Progressives Congress and Guidelines for nomination of candidates for the 2019 General Elections 2019 Indirect primaries relating to conduct of the APC Primaries, the Appeal committee of the 1st Defendant was not wrong to have upheld the purported election of the 2nd Defendant as the Borno State Governorship candidate of the APC which election is regular, illegal and void.
?Premised upon a favourable resolution of the said questions, the Appellant claimed the
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following reliefs.
1. A DECLARATION that the upholding of the purported election of the 2nd Defendant as the Borno State Governorship Candidate of 1st Defendant without the participation of lawful delegates who were chased away from the venue of the Primary Election, is illegal, unlawful, null and void and of no effect whatsoever.
2. A DECLARATION that the upholding of the purported election of the 2nd Defendant as the Borno State Governorship candidate of the 1st Defendant on the 30th September, 2018 with the participation in voting exercise by non-delegates is illegal, unlawful, null and void and no effect whatsoever.
3. AN ORDER of perpetual injunction prohibiting and or restraining the 1st Defendant from recognizing the 2nd Defendant as her Borno State Governorship Candidate on the basis of the purported upholding of the primary election conducted in Maiduguri on the 30 September, 2018.
4. AN ORDER of perpetual injunction prohibiting or restraining the 1st Defendant from forwarding the name of the 2nd Defendant as her Borno State Governorship candidate on the basis of the APC purported Governorship Primary conducted in Maiduguri on the
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30th September, 2018 and upheld by the APC Appeal Committee.
5. AN ORDER setting aside or invalidating the purported election of the 2nd Defendant held on the 30th day September, 2018 and upheld by the APC Committed as the Borno State Governorship candidate of the 1st Defendant.
6. AN ORDER of perpetual injunction prohibiting and restraining the 2nd Defendant from parading himself as the Borno State Governorship candidate of the 1st Defendant on the basis of the purported APC Governorship Primary Election held in Maiduguri on the 30th day of September, 2018 and upheld by the APC Appeal Committee.
7. AN ORDER declaring the Plaintiff as the Candidate of the 1st Defendant for the Borno State Governorship election having scored the highest number of valid votes at the Primary Election.
OR IN ALTERNATIVE TO THIS PRAYER
AN ORDER nullifying the Primary Election of the 1st Defendant held on the 30th day of September 2018 and for an order that the 1st Defendant conduct another Governorship Primary Election in Borno State where only lawful delegates participate in voting exercise.
The Originating Summons is supported by an affidavit of
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46 paragraphs deposed to by the Appellant in person. There are also a number of documents attached to the said originating summons marked as Exhibits IDRIS A – Exhibit IDRIS J3 respectively. The Appellant also filed an accompanying written address. The 1st & 2nd Respondents upon being served with the originating summons and its accompaniments filed a Memorandum of Conditional Appearance on 21st November, 2018 as may be found on pages 209-210 of the record. The 1st and 2nd Respondents also filed a Notice of Preliminary Objection together with a written address in support thereof challenging the Appellant?s suit on diverse grounds including the incompetence of same for being statute barred by virtue of Section 285(9) of the 1999 Constitution (supra). The Notice of Preliminary Objection together with the address thereon may be found on pages 211-225 of the record. The 1st& 2nd Respondents also filed a Counter Affidavit challenging the case on its merit.
The Appellant filed a written address in opposition to the preliminary objection. He equally filed a further affidavit in support of the Originating Summons on 14th March, 2019. The 1st & 2nd
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Respondents filed a reply on points of law to the Appellant?s written address against the preliminary objection. The 3rd Respondent also filed a counter affidavit against the Originating Summons and written address in support.
The preliminary objection was consolidated with the substantive case and both were accordingly argued on 14th day of March, 2019 whereupon the trial Court reserved its judgment. As stated earlier, the trial Court eventually delivered its judgment on 2nd April, 2019 and dismissed the Appellant?s case for being statute barred. In expression of his displeasure with the judgment of the trial court, the Appellant filed a Notice of Appeal containing a total of five (5) Grounds of Appeal on 15th April, 2019. The said Notice of Appeal is at pages 595-605 of the record.
?On appeal the Appellant and the 1st and 2nd Respondents exchanged their briefs. The 1st and 2nd Respondents also filed a Notice of Preliminary Objection. The 3rd Respondent did not file any brief. On 28th May, when the appeal was heard, IBRAHIM K. BAWA, SAN with ABDUL MOHAMMED, CHIEMELIE N. ONYIA, RABIU ALHASSAN BAWA, MUKAILA YAHAYA MAVO; appeared for the
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Appellant. For the 1st and 2nd Respondents Yusuf Ali, SAN; K.K. ELEJA, SAN with K.S. LAWAN, I.O ATOFARATI, R.T. BAMIGBOYE; appeared. The 3rd Respondent though served with hearing notice, was not in court and was not represented.
After I. K. Bawa, SAN introduced the appeal; Yusuf Ali, SAN argued the 1st and 2nd Respondents Preliminary Objection. He abandoned their objection in relation to non-service and compilation of records. He maintained their objection on the grounds of appeal as argued at paragraphs 4.10 ? 4.13 at pages 8 ? 10 of the 1st and 2nd Respondents? brief. He adopted their arguments on the Preliminary Objection in urging the court to uphold the objection. BAWA, SAN, responded adversely to the Preliminary Objection in the Appellant?s reply brief. In view of the fact that Ali, SAN restricted his objection to the competence of the grounds of appeal; the learned Silk withdrew arguments at pages 3 ? 7, and relied on their arguments at pages 8 ? 12. He adopted their arguments therein in urging that the objection be dismissed.
As is required by the Rules of this Court, I shall first consider the Preliminary
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Objection before the substantive appeal.
PRELIMINARY OBJECTION
The second arm of the Preliminary Objection was hinged on the provisions of Order 7 Rules 2 (2), 3 & 5 of the Court of Appeal Rules, 2016.The learned senior counsel submitted that a Ground of Appeal that alleges misdirection or error in law must state clearly the particulars of the misdirection or error in law. He noted that Rule 3 forbids a vague or general ground of appeal and prescribes that a ground of appeal that is filed in contravention of the rules may be struck out by the Court. He argued that judicial opinions abound in support of the proposition that any ground of appeal that is in the nature of grounds 1, 2, 3, 4 & 5 in the present appeal which are vague, unwieldy, imprecise, argumentative, prolix and verbose are liable to be struck out. He relied on:OSASONA V. AJAYI & ORS (2004) LPELR- 2790 (SC); JAGAL PHARMA LTD V. HUSSAINI & ANOR(2013)LPELR-21871 (CA).
He therefore prayed the Court to uphold the objection by striking out all the Grounds of Appeal filed in this case and strike out the issues for determination distilled there from and to dismiss the
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appeal as there would be no valid grounds of appeal worthy of any consideration in the case to sustain the appeal. He accordingly prayed that the appeal be dismissed on this score.
I.K. Bawa, SAN learned counsel for the Appellant with interest observed that the 1st and 2nd Respondents had raised issues for determination from the grounds of appeal they alleged to be incompetent. For the mood of the court on grievances against grounds of appeal?s competence and its effect on the Notice of Appeal, the learned Silk cited: OMISORE & ANOR. V. AREGBESOLA & ORS. (2015) LPELR ? 24803 (SC); (2015) 15 NWLR (PT. 1482) 205; ALH. ADAMU MAINA & ANOR. V. ALH. IBRAHIM GEIDAM & ORS. (2016) LPELR ? 40660 (SC). He urged the Court to strike out the Notice of Preliminary Objection.
In respect to this second ground of the objection which has to do with grounds 1, 2, 3, 4 & 5 of the grounds of appeal as vague, unwieldy, imprecise, argumentative, prolix and verbose and as such liable to be struck out. It is now trite in law that the aim or purpose of a ground of appeal is to give the opposing party notice of the case it has to meet at
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the appellate Court; and the grounds and particulars of error or misdirection alleged are intended to showcase the complaint against the decision appealed against. JULIUS BERGER & ANOR V. TOKI RAINBOW COMMUNITY BANK LTD (2019) LPELR ? 46408 (SC). With the trend of substantial justice, what the Court looks for in a ground of appeal and its particulars is that, on reading a ground of appeal and its particulars, the adverse party must be left in no doubt as to what the complaint of the appellant is. A ground of appeal and its particulars must therefore go together. Where the particulars in support of a ground are not related to the ground, the ground is incompetent. HAMBE V HUEZE (2001) 2 SC 26; ACCESS BANK PLC V SIJUWADE (2016) LPELR 40188 (CA). WAZIRI V. GEIDAM (2016) 11 NWLR (PT. 1523) 230 AT 256. Accordingly, it is not every failure to attend to Grounds of Appeal with the pernickety details prescribed by the rules of this Court that would render such grounds incompetent. Whenever sufficient particulars can be gathered from the grounds of appeal and the adversary and the Court are left in no doubt as to the particulars on which the grounds are
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founded, the grounds of appeal are adjudged competent. UKPONG AND ANOR V. COMMISSIONER FOR FINANCE AND ECONOMIC DEVELOPMENT AND ANOR (2006) LPELR-3349 (SC); HAMBE V. HUEZE (2001) 4 NWLR (PT. 703) 372; (2001) 5 NSCQR 343, 352. The Apex Court has greatly encouraged the Courts to make the very best they can out of a bad or inelegant ground of appeal in the interest of justice. DAKOLO AND ORS V. DAKOLO AND ORS (2011) LPELR-915. Therefore, bad or defective particulars in a ground of appeal would not, necessarily, render the ground itself incompetent.PRINCE DR. B. A. ONAFOWOKAN V. WEMA BANK (2011) 45 NSCQR 1; BEST (NIG) LTD. V. BLACK WOOD HODGE (2011) 45 NSCQR; ABE V. UNILORIN (2013) LPELR. The reason for this apparent shift are duo, firstly, the essence of Particulars is to project the reasons for the grounds complained of, the inelegance of the said particulars therefore would not invalidate the Grounds from which they flow. NNB PLC V. IMONIKHE (2002) 5 NWLR (PT. 760) 241, 310; D. STEPHENS IND. LTD. AND ANOR V. BCCI INTER (NIG.) LTD. (1999) 11 NWLR (PT. 625) 29, 3101. Secondly, is the shift from technicalities to substantial justice. ADEROUNMU V. OLOWU (2000) 4
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NWLR (PT. 652) 253; HAMBE V. HUEZE (SUPRA); ABE V. UNILORIN (2013) LPELR-20643.
In the instant appeal, I would want to say that though the presentation of the particulars are a bit clumsy and not strictly speaking elegant, that would not be used to punish a litigant to get the grounds of appeal struck out for incompetence in a situation where the grounds of appeal and their particulars have not put the Respondents and the Court in doubt as to what the grouse of the Appellant is. JULIUS BERGER & ANOR V. TOKI RAINBOW COMMUNITY BANK LTD (SUPRA); OGBORU V. OKOWA (2016) 11 NWLR (PT. 1522) 84, 146; OMISORE V. AREGBESOLA (2015) 15 NWLR (PT. 1482) 205; DAKOLO V. DAKOLO (2011) 16 NWLR (PT. 1272) 22. Interestingly the 1st and 2nd Respondents distilled 2 grounds of appeal from the present grounds under attack and prepared their brief based on it. Striking out the grounds of appeal in the circumstance that it is glaring that the Appellant has in no way through the inelegant grounds of appeal laid ambush for the adversary herein who were able to gather sufficient particulars from the grounds of appeal to distill necessary issues and prepare their brief will be
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diving back to the era of technicality which the Apex Court has stamped its foot against. ABE V. UNILORIN (2013) LPELR-20643; PRINCE (DR.) B. A. ONAFOWOKAN AND OTHERS V. WEMA BANK PLC. AND ORS. (2011) 45 NSCQLR 181 SC; BEST (NIGERIA) LTD V. BLACK WOOD HODGE (NIGERIA) LTD. AND ORS. (2011) 45 NSCQLR 849.
From the forgoing it is my view that this Preliminary Objection ought to be discountenanced so the Court can see its way in the main content of the appeal without being distracted by minor issues. I therefore overrule the Preliminary Objection.
Having dispensed with the Preliminary Objection, I will now consider the substantive appeal. The learned senior counsel for the Appellant adopted the Appellant?s brief filed 6th May, 2019 and his reply brief filed on 27th May, 2019; in urging the Court to allow the appeal. In the Appellant?s brief, 3 issues were distilled for determination. The issues are:
1. Whether the learned lower trial judge was correct in holding that the Appellant/Plaintiff?s suit was statute barred.
2. Whether the Honourable Trial Court rightly evaluated the evidence before him, when it held that the
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Appellant/Plaintiff failed to indicate the date the Appeal Committee report was made.
3. Whether the failure of the learned trial judge to proceed to determine the case on the merit did not occasion miscarriage of justice against the Appellant/Plaintiff in the light of the admonition of the Supreme Court in the case of LAU V.PDP &ORS (2017) LPELR-42800(SC).
Yusuf Ali, SAN for the 1st and 2nd Respondents adopted their brief filed on 22nd May, 2019 in urging the Court to dismiss the appeal. He also referred to the case of A.N.P.P. V. GONI (2012) 7 NWLR (PT. 1298) 147; while making his oral adumbration. In their brief, the 1st and 2nd Respondents raised the following 2 issues for determination, to wit:
1. ?Whether the Honourable trial Court was not right in its decision that the Appellant?s case was statute barred and in dismissing same and whether it did not properly evaluate the evidence before it to reach its decision?
2. Whether the Honourable trial Court was correct in not considering the case on the merit after having found that the case was statute barred and whether this is a proper case for the invocation of
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Section 15 of the Court of Appeal Act to grant any relief in the Appellant?s favour
The issues raised by both parties are the same except that the 1st and 2nd Respondents merged the Appellant?s issues 1 and 2 together as their issue 1. I will adopt the issues raised by the Appellant for the determination of the appeal but will rephrase his issues 1 and 2 as a single issue. I shall therefore determine the appeal on the following 2 issues:
1. Whether the trial Court was right in his evaluation of the evidence before it to reach the conclusions that the Appellant failed to indicate the date the Appeal Committee report was made, and that the suit was statute barred.
2. Whether the failure of the learned trial judge to proceed to determine the case on the merit did not occasion miscarriage of justice against the Appellant/Plaintiff in the light of the admonition of the Supreme Court in the case of LAU V. PDP &ORS. (2017) LPELR-42800(SC).
SUBMISSIONS ON ISSUE 1
Whether the trial Court was right in his evaluation of the evidence before it to reach the conclusions that the Appellant failed to indicate the date the Appeal Committee
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report was made, and that the suit was statute barred.
Ibrahim K. Bawa, SAN learned counsel for the Appellant submitted that from the questions for determination before the learned trial Court the issues which the Appellant presented to the Court was a complaint on the decision of the 1st Respondent?s Appeal Committee. He argued that it is the Guidelines for the Nomination of Candidates for the 2019 that regulates the nomination process of the 1st Respondent. He referred to the Guidelines for the Nomination of Candidates for the 2019 attached as Exhibit Idris D. He strenuously argued that Appeal process is part of the nomination process. He cited: MATO V. HEMBER (2018) 5 NWLR (PT 1616) 258; (2018) ALL FWLR (PT. 925) 146, (2017) LPELR-42675 (SC); BARAU V. WOKDUNG & ORS (2018) LPELR-46168 (CA).
?The learned Silk submitted that since the Appeal Committee report forms an integral part of the complaint of the Appellant, it could be deduced that the Appellant?s cause of action accrued on 15th October 2018 when the 1st Respondent Appeal Committee on the Borno Governorship primary election delivered its report upholding the candidature of the
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2nd Respondent, thereby effectively closing the door on any possibility of the Appellant obtaining redress from the 1st Respondent. He argued that it was only then that the Appellant?s cause of action arose. He referred to Exhibit M attached to the further affidavit in support of the Originating Summons which is at page 549 of the Record. The learned senior counsel further submitted that the Appellant filed his Originating summons on 19th October 2019, four days after the Appeal Committee of the 1st Respondent delivered its report and as such was clearly within time. He cited: AGBONIKE V. UNIVERSITY OF ABUJA (2014) ALL FWLR (PT. 715).
He proceeded to contend that by the provisions of Section 285 (9) of the Constitution a cause of action could either be an event, action or decision. He contended that the court is bound to take into cognizance that the process does not end at the conduct of the primaries but extends to the exhaustion of the appeal process. He therefore argued that the trial Court erred in law when it proceeded to find that the Appellant?s suit is against the APC Primary election held on 30th September, 2018 contrary to the
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initial finding of the learned trial Court that the question raised for determination of the trial Court border on the interpretation of the Electoral Act 2010 (As amended), the APC Constitution and Guideline viz a viz the decision of the Appeal Committee on the primary election for the gubernatorial candidate of APC in Borno state.
He therefore submitted that by the above, the learned trial Judge erred in law in the interpretation of the provisions of Section 285(9) of the Constitution by failing to give effect to the part of the provisions which recognizes the decision of the Appeal Committee as a cause of action for which the Appellant can rightly place his cause of action.
On whether the learned trial Judge was right to hold that the Appellant failed to state the date the Appeal Committee report was made. The learned senior counsel for the Appellant noted that on 30th March, 2019 a five paragraph further affidavit in support of the Originating Summons was filed by the Appellant. That the said further affidavit has the Report of the National Appeal Committee of the All Progressives Congress for the 2019 Primary elections attached as Exhibit IDRIS M
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made on 15th October, 2018. He referred to page 549 of the Records.
He contended therefore that the learned trial Judge did not consider the content of Exhibit Idris M when he held that the Appellant did not indicate the date the Appeal Committee report of the 1st Respondent was released which rendered his decision perverse. He referred to: BUHARI V. INEC (2009) ALL FWLR (PT. 459) P.174; JOHN SHOY INT. LTD V. APPR (2013) 8 NWLR (PT. 1357) 625; FATUADE V. ONWOAMAN (1990) 3 SC (PT. 11) 138.
Bawa, SAN urged the Court to hold that the learned trial Judge came to the wrong conclusion of the date on which the Appellant?s cause of action arose, thereby occasioning a miscarriage of justice, he prayed the Court to substitute the finding of the learned trial Judge with its own finding and hold that the cause of action arose on the 15th October 2018 when the 1st Respondent?s Appeal Committee published its report which upheld the candidacy of the 2nd Respondent in spite of the allegations contained in the petition of the Appellant.
?He finally urged the Court to resolve the issue in favour of the Appellant and to set aside the decision on this issue.
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The learned Silk, Yusuf Ali for the 1st and 2nd Respondents in his opposition reaction submitted that a calm consideration of the depositions in the affidavit in support of the Originating Summons of the Appellant will reveal that his grouse which culminated into the filing of the suit stemmed on his alleged improper conduct of the 30th September, 2018, primary election of APC in Borno State which according to the Appellant was characterized by exclusion of lawful delegates from voting, voting by unqualified persons, employment of violence, harassment and intimidation of potential voters many of whom were chased from the venue of the primary. He referred to paragraphs 1-38 of the affidavit in support at pages 7-15 of the records. The learned Silk noted paragraphs 39-45 of the affidavit in support of the originating summons at page 16 of the records to contend that although the Appellant claimed to have written a letter to the 1st Respondent?s National Chairman and the State Appeals committee, his suit at the trial Court was not filed against the alleged decision of the said Appeal Committee. He argued that the dates on which the Appeal
21
Committee purportedly sat, its proceedings and decision were not placed before the trial Court. Accordingly, he submitted that the finding of the trial Court at page 587 of the record to that effect is sound and unimpeachable the same being supported by the records. Also that even in the further affidavit filed by the Appellant which is at pages 547-548 of the records, the date of the Appeal Committee decision was not stated. The learned senior counsel urged the court to hold that the trial Court properly evaluated the evidence placed before him.
The learned senior counsel still submitted that this Court as an appellate Court cannot substitute its views for findings of facts made by the trial Court which are supported by the record as in this case. He cited: LIPEDE V. SONEKAN (1995) 1 NWLR, (PT. 374) 668; AKUJINWA V. NWAONUMA (1998) 3 NWLR (PT. 583) 632; OKELOLA V. BOYLE (1998) 2 NLWR (PT. 539) 533.
From his submissions above, the learned Silk summed up that for the purposes of statute of limitation, 30th of September, 2018, was the day the Appellant?s cause of action arose. He argued that the finding of the trial Court in this wise cannot be
22
faulted, contrary to the Appellant?s submission in his issue No. 1. He referred to the provisions of Section 285(9) of the 1999 Constitution (4th Alteration, No. 21) Act, 2017; and argued that the Appellant?s argument concerning any decision of the Appeal Committee as the subject matter of the suit from which time the limitation statute shall start to run is not tenable. He invited the Court to note that there was no express relief predicated on the alleged Appeal Committee report or decision. To underscore his submission that the Appellant?s case is predicated on the event of 30th September, 2018 election he referred to relief 4 at page 7 of the records. He urged the Court to hold that the Appellant failed to provide evidence of any date other than 30th September, 2018, as the date his cause of action accrued arguing that failure of the Appellant to so prove another date was fatal to his case. He cited: OJO V. GAHARORO (2006) ALL FWLR (PT. 316) 197 AT 251. He added that the reference to page 8 paragraph 2.3 of the Appellant?s brief to the 15th October, 2018 as the date of the accrual of his cause of action is unsupported by the
23
records. He concluded that the above makes the finding of the trial Court at page 590 of the records to the effect that:
?In the present suit, the principal event, decision or action Complained of is the APC Governorship primary election of Borno State held on the 30th of September, 2018 that produced the 2nd Defendant as the party?s candidate.? impeccable and profoundly sound.
He urged the Court to hold that the learned trial Judge was right when he held from the evidence before it, that the suit was statute barred and accordingly dismissed the same.
RESOLUTION OF ISSUE 1
A sound resolution of this issue will require a good understanding and consideration of Section 285 (9) of the 1999 Constitution (4th Alteration, No. 21) Act, 2017; Section 87 of the Electoral Act 2010 (as amended) particularly sub-sections 1, 4 (b), and 9; Article 20 (111) Constitution of the All Progressives Congress; APC Guidelines for the Nomination of Candidates for the 2019 General Elections; vis a vis the questions raised by the Originating Summons for determination of the trial Court. Section 285 (9) of the Constitution (supra) provides:<br< p=””
</br<
24
?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.?
The provision of Section 285(9) of the 1999 Constitution (as amended) is unambiguous and as such the words used therein ought to be accorded their ordinary grammatical meanings. By Section 285(9) of the 1999 Constitution (as amended), every pre-election action, case, cause or matter must be filed within 14 days from the date of the occurrence of the action, decision or event complained of in the suit. Accordingly, to determine whether a pre-election suit was filed within 14 days as stipulated by Section 285(9) of the 1999 Constitution (as amended), the Court ought to examine the processes originating from the claimant?s suit to determine either of the following:
(a) The date of the event complained of in the suit or
(b) The date of the decision complained of in the suit or
(c) The date of the action complained of in the suit.
It is a principle of law, that where a statute dictates a period of time
25
for the institution of an action, the action shall not be commenced outside the time dictated by the statute. Where any action is brought outside the time prescribed by the statute such suit is said to be statute-barred. SOSAN V. ADEMUYIWA (1986) 3 NWLR (PT. 27) 241; ODUBEKO V. FOWLER (1993) 7 NWLR (PT. 308) 637; NIGERIAN PORTS AUTHORITY PLC. V. LOTUS PLASTICS LIMITED & ANOR. (2005) 19 NWLR (PT. 959) 158; NATIONAL REVENUE MOBILIZATION ALLOCATION & FISCAL COMMISSION & ORS.V. AJIBOLA JOHNSON & ORS (2019) 2 NWLR (PT. 1656) 247.
The Appellant?s grouse is that the learned trial Judge was wrong in his decision in view of his further and better affidavit vis a vis Section 285 (9) of the 1999 Constitution (4th Alteration, No. 21) Act, 2017; Section 87 of the Electoral Act 2010 (as amended); Article 20(111) Constitution of the All Progressives Congress; APC Guidelines for the Nomination of Candidates for the 2019 General Elections. He contended that by the 1st Respondent?s guidelines he is required to exhaust the Party?s internal remedies before seeking redress in Court. He relied on the Constitution and Guidelines of the 1st
26
Respondent which he complied with and so in his further and better affidavit he attached Exhibit IDRIS M – the Appeal Committee report released on 15th October, 2018. He therefore argued that since the Appeal Committee?s report was made on 15th October, 2018; the same was the date of his cause of action in view of his complaint about the decision of Committee upholding the primary election. He submitted from the foregoing that his suit filed on 19th October, 2018 did not contravene Section 285 (9) of the 1999 Constitution (supra) and so not statute barred.
?The issue in this case is when the 14 days limitation time prescribed by Section 285(9) of the 1999 Constitution (as amended) began to run for the Appellant who was aggrieved by the party primary election and who had appealed to the National Appeal Committee. The argument of the parties are simple and straight forward, the Appellant contends that since he had appealed to the APC National Appeal Committee as provided for by the Constitution and Guidelines of the party, his cause of action began to run from 15th October, 2018 when the Appeal Committee?s report was issued. He submitted
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vigorously that Section 285(9) of the 1999 Constitution (as amended) provision relates to event, decision and action subject of complaint by an aggrieved aspirant. That since his complaint is against the decision of the 1st Respondent?s Appeal Committee made on 15th October, 2018; his action filed on 19th October, 2018 was wrongly held as statute barred by the learned trial Judge. The contention of the 1st and 2nd Respondents on the other hand is that the 14 days granted the Appellant by Section 285(9) of the 1999 Constitution (as amended); began to run on 30th September, 2018 the date of the Borno State APC Governorship primary election and result, being the date the cause of action arose.
?A cause of action accrues from the time when a breach of any duty or act occurs which warrants the person who is adversely affected by such breach to take a Court action in assertion or protection of his legal right that has been breached. The period of the cause of action which is conferred on the affected person is statutorily limited and cannot be extended. It lapses after the date the statute of limitation proclaims that no such legal action or proceedings
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may lawfully be commenced by an aggrieved person.It is therefore necessary when dealing with statutes of limitation to determine firstly the precise date the cause of action accrued because time will start to run from the moment the cause of action arose.WOHEREM V. EMEREUWA & ORS (2004) LPELR ? 3500 (SC); EBOIGBE V. N.N.P.C. (1994) 5 NWLR (PT. 347) 649; OKAFOR V. A-G ANAMBRA STATE (2005) 14 NWLR (PT. 945) 210.
Cause of action simply denotes the factual base or some factual situations, a combination of which makes the matter in litigation an actionable wrong or an enforceable right. THOMAS V. OLUFOSOYE (1986) 3 NWLR (PT. 18) 669; IBRAHIM V. OSIM (1988) 3 NWLR (PT. 82) 257; ALHAJI AMARU ABBA TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517. The Supreme Court, Per Augie, JSC, gave an elaborate meaning of cause of action as:
i. ?A cause of complaint;
ii. A civil right or obligation for determination by a Court of law;
iii. A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine;
iv. A consequent damage;
v. Every fact which would be necessary for the
29
plaintiff to prove, if traversed in order to support his right to the judgment of the Court. It does not comprise every piece of evidence that is necessary to be proved;
vi. All those things necessary to give a right of action whether they are to be done by the Plaintiff or another person; and
vii. It is factual situation, which enables one person to obtain a remedy from another in Court in respect of injury.”
See: MATHEW IYEKE & 25 ORS. V. PETROLEUM TRAINING INSTITUTE & ANOR. (2019) 2 NWLR (PT. 1656) 217 AT 238.
To determine whether or not there is a cause of action or when a cause of action arose, it is only the plaintiffs originating processes, such as the writ of summons, the statement of claim, the originating summons and the affidavit in support thereof as the case may be that would be considered. ADIMORA V. AJUFO (1988) 1 NSCC 1005; COMBINED TRADE LIMITED V. ALL STATES TRUST BANK LIMITED (1998) 12 NWLR (PT. 576) 56; WILLIAMS V. WILLIAMS (2008) 10 NWLR (PT. 1095) 364. The Apex Court in: MRS. M.B. AMUSAN V. MR. DANIEL OBIDEYI (2005) 14 NWLR (PT. 945) 322 AT 328; per Kutigi, JSC (as he then was, later CJN); stated how to
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determine whether or not an action was instituted outside the time prescribed by a statute as follows:
?It has been decided that the period of limitation is only determinable by looking at the writ of summons and statement of claim alone to ascertain the alleged date of the wrong in question which gave rise to the 1st Respondents cause of action and by comparing that date with the date on which the Writ was filed. If the time pleaded in the Writ of summons or the statement of claim is beyond the period allowed by the limitation law, the action is statute barred.?
In the case at hand, the Appellant deposed in the affidavit in support of his originating summons particularly at paragraphs 27,28,29, 31, 33 and 38 to the effect that his cause of action stemmed on the irregular, unlawful and violent mode of the 1st Respondent?s Governorship Primary in Borno State on 30th September, 2018. However, that in compliance with the 1st Respondent?s guidelines he appealed to the National Appeal Committee of the 1st Respondent before whom he appeared on 13th October, 2018. See paragraphs 39, 40, 41 and 42 of the affidavit in support of the
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Originating Summons. At paragraph 43 of the affidavit, the Appellant deposed that he did not know when the Appeal Committee reached its decision as the committee did not send him a formal response to his petition but that he later through his investigations got to know the committee upheld the election of the 2nd Respondent by its general report of 15th October, 2018. I will break to observe that by the deposition in paragraph 43, it follows that 15th October, 2018 was not the day the Appeal Committee made its decision on the Appellant?s case. From the Originating Summons, the trial court found that the only apparent cause of action is the alleged irregular, unlawful and violent mode of the 1st Respondent?s Governorship Primary election in Borno State on 30th September, 2018; which returned the 2nd Respondent as the Governorship candidate of the 1st Respondent. This was the decision reached by the trial court whereupon he held that the Appellant filed his suit out of time and therefore dismissed his claim as statute barred.
?Starting with the 1st Respondent?s Constitution and Guidelines, The Supreme Court per Onnoghen CJN said:<br< p=””
</br<
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?This Court has decided in quite a number of cases that political parties must obey their own constitutions as the Court will not allow them to act arbitrarily or as they like.See: UZODINMA V IZUNASO (NO2) (2011) 17 NWLR (PT 1275) 30 AT 60, UGWU V ARARUME (2007) 12 NWLR (PT 1048) 326 AT 914 PARAS. D – E; CPC V LADO (2011) 14 NWLR (PT 1266) 40 AT 91 – 92 PARAS, D – G? SEE: MATO V. HEMBER & ORS. (2018) 5 NWLR (PT. 1616) 258; (2018) ALL FWLR (PT. 925) 146; (2017) LPELR ? 42675 (SC). Commenting on Section 87 (9) still in Mato V. Hember (supra); Kekere ? Ekun, JSC stated:
?As stated by my learned brother in the lead judgment, this Court in a plethora of cases has asserted the fact that political parties must obey their own constitutions and guidelines and where necessary (as provided by law) the Courts will intervene and wield the big stick to prevent arbitrariness. The only way our democratic dispensation can work effectively is where every aspirant for political office, who is qualified to contest an election, is given an even playing field. The failure of internal democracy within our political parties, right from
33
the grassroots level eventually leads to instability in the entire political system. The failure of internal democracy is one of the reasons why the Courts’ dockets are congested with pre-election disputes.In UGWU V. ARARUME (2007) 12 NWLR (PT. 1048) 376 @ 514 D-E, this Court per Mahmud Mohammed, JSC (as he then was) admonished:
“My lords, if we want to instill sanity into our human affairs, if we want to entrench unpolluted democracy in our body polity, the naked truth must permeate through the blood, nerve and brain of each and everyone of us. Although credit may not always have its rightful place in politics, we should try to blend the two so as to attain a fair, just and egalitarian society where no one is oppressed. Let us call a spade a spade!”
See also: UZODINMA VS IZUNASO (NO.2) (2011) 17 NWLR (PT. 1275) 30 @ 60 C-E: C.P.C. VS LADO (2011) 14 NWLR (PT. 1266) 40 @ 91-92 D-G.
The Apex Court has therefore firmed the position that political party members must adhere to the Constitution and guidelines of the party. The Appellant herein posture is that, by the 1st Respondent?s Constitution and Guidelines which he had complied with;
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Section 87 (9) of the Electoral Act which gave him the right to apply to the Court as an aspirant against violation of the Electoral Act and Guidelines of the 1st Respondent; and Section 285 (9) of the Constitution which granted him 14 days from the date of his complaint to file his action, the decision of the trial court that the action he filed on 19th October, 2018 was statute barred when the 1st Respondent?s Appeal Committee report was made on 15th October, 2018; is wrong. This posture will lead us to the examination of Section 87 of the Electoral Act.
I will reproduce the relevant sub sections of Section 87 of the Electoral Act thus:
87 (1) A Political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions
87 (4) (b) in the case of nomination to the positions of Governorship candidate, a political party shall, where it intends to sponsor candidates:-
(i) Hold a special congress in the State capital with the delegates voting for each of the aspirants at the congress to be held on a specific date appointed by the National Executive Committee (NEC) of the party;
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and
(ii) The aspirant with the highest number of votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirant?s name shall be forwarded to the Commission as the candidate of the party, for the particular State.
(87)(9) Notwithstanding the provisions of this Act or rules of political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High court of a State or FCT, for redress.
?Section 87 (supra) is the statute that gave jurisdiction to the trial Federal High Court to hear and determine pre ? election matters. The extent of the trial Court?s jurisdiction on pre-election matters is equally provided for by the same section of the law. By Section 87 (9) of the Electoral Act, where a political party chooses to conduct indirect primary election to choose its flag bearer, any dissatisfied aspirant at the primary election has the right to vent his complaint before the Federal High
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Court or High Court of a state or of the Federal Capital Territory. PEOPLES DEMOCRATIC PARTY V. TIMIPRE SYLVA (2012) 13 NWLR (PT. 1316) 85. By the insertion of this provision in the Electoral Act, the legislature has made its intention known that a member of a political party who contested the party primary election is entitled to challenge a breach of the party Constitution or Guidelines and the Electoral Act, by filing an action at any of the stated courts. Section 87 (9) (supra) accordingly gives an aggrieved aspirant the flexibility of venting his grievance in any of the Courts listed therein. JEV & ANOR V. IYORTYOM & ORS (2014) LPELR – 23000 (SC).
?Both the provisions of Section 285(9) of the 1999 Constitution (as amended); and Section 87 of the Electoral Act are plain but the complexity in determining what date the cause of action accrued in this case and so the date the 14 days prescribed by Section 285(9) of the 1999 Constitution (as amended); began to run lies with the fact that the Constitution and Guidelines of the 1st Respondent provided for an appeal to their National Appeal Committee in the event a party Governorship primary election
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contestant is aggrieved with the outcome of the election. The Appellant at paragraphs 39 ? 42 of his affidavit in support of his Originating Summons deposed to the fact that in compliance with the provisions of the 1st Respondent?s Constitution and Guidelines and for the principle laid down by the Supreme Court in MATO V. HEMBER (2018) 5 NWLR (PT. 1616) 258; which decision was followed by this court in BARAU V. WOKDUNG & ORS. (2018) LPELR ? 46168 (CA); he complied by first taking his complaint of the result of the Borno State Governorship primary election to the 1st Respondent?s Appeal Committee. Let me quickly note that, while the cases of MATO V. HEMBER (SUPRA) AND BARAU V.WOKDUNG(supra) are distinguishable from the instant case in that the 14 days time limit imposed by Section 285(9) of the 1999 Constitution (as amended) was not in issue as in the instant case. However, the principle of law laid down by the Apex Court therein applies to the instant case. The Supreme Court in the referred case adjured party members to adhere to their party Constitution and Guidelines.
?What will need to be ascertained at this point is the
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scope and nature of the right granted a political aspirant by Section 87 (9) (supra). By Section 87 (9), it is an aspirant?s complaint that is against failure to comply with any of the provisions of the Electoral Act and the Guidelines of a Political Party in the selection or nomination of a candidate of a Political Party for election that can be entertained by the designated courts. This section which ensures that in making their choice of candidate for elective office political parties do not stray beyond the confines of the Electoral Act or their own electoral guidelines, is at the same time restrictive on the nature of actions that can be filed under its auspice. So while the section seeks to curb the impunity with which political parties hitherto acted without regard to the democratic norms they profess to practice, it confines an aspirant who wants to apply to any of the courts designated therein, to file suits only on complaints that arose as a result of failure to comply with the provisions of the Electoral Act and the guidelines of a political party when such non-compliance arose in relation to the selection or nomination of a candidate of a
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political party for election. Put differently, Section 87(9) (supra) grants right to an aspirant to seek redress in any of the stated courts only on complaints for failure to comply with the provisions of the Electoral Act and the guidelines of a political party in the selection or nomination of a political party?s candidate for election. This is the nature of the action Section 285 (9) of the Constitution (supra) said must be filed within 14 days of the event, decision or action complained in the suit.
The question that need be answered now is in view of the provisions of Section 87 (9) of the Electoral Act, what is the Appellant?s cause of action so as to ascertain when the cause of action began to run. Is his cause of action the conduct of the Borno State Governorship primary election or the decision of the Appeal Committee? Whereas by the Appellant?s affidavit in support of his Originating Summons, on the one side, his complaint is that the APC Borno State Governorship primary election of 30th September, 2018; did not comply with the Electoral Act and the 1st Respondent?s guidelines; on the other hand his complaint is that the
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decision of the Appeal Committee in upholding the election of the 2nd Respondent as the Governorship candidate is wrong. From what I have said so far, I am of the view that the only recognizable cause of action under Section 87 (9) (supra); is a complaint of non compliance with the provisions of the Electoral Act and the guidelines of a political party in the selection and nomination of a candidate of a political party for election. Therefore a combined reading of Section 285 (9) of the Constitution (supra) and Section 87 (9) of the Electoral Act (supra) is to the effect that an aspirant who complains that any of the provisions of the Electoral Act and the Guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, has 14 days from the date of the occurrence of the event, decision or action complained of to seek redress at the Federal High Court or High court of a state or FCT. From the Originating Summons and its supporting affidavit and further affidavit, the event that took place on 30th September, 2018 was the APC Governorship primary election resulting to a decision that the
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2nd Respondent emerged the winner. On the event, decision or action complained of in the suit at the trial court for failure to comply with the Electoral Act and the Guidelines of the 1st Respondent, only one date was consistently deposed to in the affidavit and further affidavit of the Appellant and which date is 30th September, 2018.
?In the instant case therefore, what constitutes the cause of action by virtue of Section 87 (9) of the Electoral Act, from the affidavit and further affidavit evidence in support of the Originating summons is the Appellant?s complaint about the irregularities, violence and other acts of non compliance with the Electoral Act and Guidelines of APC in the election of the 1st Respondent as the party?s Governorship flag bearer for 2019 election in the indirect primary election held on 30th September, 2018. The 14 days time as prescribed by Section 285 (9) of the Constitution therefore began to run on 30th September, 2018. Accordingly, the Appellant?s suit filed on 19th October, 2018 was filed in contravention of Section 285 (9) of the Constitution thereby rendering the suit statute barred.
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The submission of the Appellant that primary election is a process is correct. I am also aware of this court?s decision in APC & ANOR V. AGODA & ANOR (2019) LPELR ? 47174 (CA). I want to draw a distinction between this case and APC V. AGODA (SUPRA). IN APC V. AGODA (supra), the Claimant therein won the primary election, his name was forwarded to INEC, he later discovered his name was replaced with another name, he appealed to the Appeal panel and got his name restored, later his name was replaced again and he appealed to the National Working Committee which upheld his appeal yet at a later date his name was not forwarded to INEC, so this Court held that his cause of action concretized the date he got to know his name was not forwarded. This was also the line of reasoning and decision of this Court in the unreported decisions of Court of Appeal, Jos Division in Appeal No.CA/J/130/2019 Between SAIDU ABDU ISAH V. BELLO HARUNA & 2 ORS.; and Appeal No. CA/J/131/2019 Between BELLO HARUNA V. ALL PROGRESSIVE CONGRESS & 2 ORS. In the referred cases the Claimants? actions were complaints of non compliance of the Electoral Act and Guidelines of their
43
parties in that having won their parties primaries in compliance with the Electoral Act and Guidelines of their parties their respective parties failed to comply with the Electoral Act and their Guidelines which said the name of the aspirant who scored the highest vote at the primary and declared the winner, should have his name forwarded to INEC. The case is different here where the Appellant lost at the primary election so his complaint that the APC Borno State in their Governorship primary election of 30th September, 2 018; did not comply with the Electoral Act and the party Guidelines in that the primary was shrouded with irregularities as delegates were not allowed to vote while non delegates voted, lack of accreditation of delegates before voting, violence, intimidation; the decision to declare the 2nd Respondent who did not score the highest lawful votes cast at the primary election as the winner; and the action of forwarding the name of the 2nd Respondent to the 3rd Respondent; made the cause of action as per Section 87 (9) accrue. Although in the circumstance of this case the Appellant had a right to exhaust the party?s domestic remedy but by
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Section 87 (9) of the Electoral Act, and Section 285 (9) of the Constitution, a cause of action had accrued which complaint in a suit must be filed in the court within 14 days.
The 14 days prescribed in the Constitution for filing a pre -election matter is sacrosanct and that period being immune from violation cannot be subjected to the Constitution and Guidelines of APC. Also because of the superiority of the Nigerian Constitution by virtue of Section 1(1) & (3) of the said 1999 Constitution, as amended, the Constitution and Guidelines of APC must bow to the 14 days prescription of Section 285 (9) of the Constitution. AMADI V. INEC (2012) LPELR-7831 (SC) 34. The trial Court therefore was right when despite the fact that it was on 15th October, 2018 the Appeal Committee released its report upholding the name of the 2nd Respondent as the 1st Respondent?s candidate; found that, the cause of action arose on 30th September, 2018; the date of the indirect primary. The decision of the learned trial Judge on this was neither wrong nor perverse, given the facts of this case. This does not however by any means denote that a cause of action under
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Section 87 (9) of the Electoral Act, must necessarily arise from the date of a primary election. It all depends on the facts and circumstances of a case but the emphasis is that the complaint of the aspirant filed in the suit before the court must be a carp of failure to comply with the provisions of the Electoral Act and Guidelines of a party in the event of selection and nomination of a candidate of a political party for election. For what I have said above, I remain firm in agreement with the learned trial Judge that the Appellant?s suit was statute barred having been filed on 19th October, 2018.
In the event that the argument of the learned senior counsel for the Appellant that the Appellant had a cause of action under Section 87 (9) of the Electoral Act by his complaint of the decision of the National Appeal Committee upholding the primary election in issue has merit, I would still have good reasons to reach the conclusion that the Appellant?s suit is statute barred. From the Supreme Court decision in MRS. M.B. AMUSAN V. MR. DANIEL OBIDEYI (supra); in determining whether an action was filed out of time, the court looks at the
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Claimant?s Writ of Summons and Statement of Claim alone as to the date pleaded therein and compares it with the date the writ was filed to ascertain if the action is statute barred. One important thing is that the date of the cause of action must be pleaded. I have examined the Appellant?s Further Affidavit in support of the Originating Summons particularly the most relevant which is paragraph 4; I do not find any deposition as to the date the Appeal committee gave his decision. The Appellant?s learned senior counsel?s contention is that the date of the committee?s decision can be seen on Exhibit IDRIS M attached to his further affidavit. There is no shadow of doubt in law that in actions initiated by Originating Summons, the Affidavits filed by the parties in the matter take the place of pleadings.AGBAKOBA V. I.N.E.C.[2008] 18 NWLR (PART 1119) 489. From the decision in AMUSAN V. OBIDEYI (supra) the Court should not go in hunt of the date the Claimant alleges his cause of action accrued. The date must be distinctly pleaded in the statement of claim. In the instant case where the action was commenced by Originating Summons and the
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affidavit evidence takes the place of pleadings, it means the Appellant must depose to the date of his cause of action in his affidavit and or further affidavit. The date of the cause of action must be certain and the Court left in no doubt as to the date of the cause of action. Regrettably, deposition as to the date the Appeal committee entered its decision in the Appellant?s case is copiously missing in both the affidavit and the further affidavit in support of the Originating Summons. This much the trial court noted and held that there was no date of cause of action placed before it outside 30th September, 2018 when the indirect primary election was held. To this holding the Appellant contended that Exhibit IDRIS M attached to the further affidavit bore 15th October, 2018 as the date the Appeal committee?s report was released and as such there was a date of his cause of action before the Court. Without delving into whether 15th October, 2018 was actually the date the committee?s decision was handed down, I will refer to the position of the law that fact not pleaded cannot be given in evidence. The deposition that Exhibit IDRIS M is the
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report of the Appeal Committee does not amount to deposition of the date of the decision of the Appeal Committee on the appeal of the Appellant. At paragraph 43 of the Appellant?s affidavit, the Appellant deposed that he was not informed of the date of the Appeal Committee?s decision on his case. The 1st and 2nd Respondents in their counter affidavit said no Appeal Committee sat in respect of Appellant?s appeal on 13th October, 2018 as deposed by the Appellant. The Appellant did not place any material evidence before the Court to at least show the Committee?s proceedings on said date. This means the alleged date of the Appellant?s cause of action is not supplied. The court cannot go outside the affidavit and further affidavit of the Appellant on a voyage of discovery of the Appellant?s date of cause of action. The date the Court has to look at along with the writ to ascertain if the Appellant?s action was statute barred cannot be hidden in the affidavit and further affidavit. Even at that there is no deposition to link the date seen on the body of Exhibit IDRIS M with the fact that that was the date the committee gave
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its decision on Appellant?s appeal. The stamp of the committee on the body of the exhibit with the date 15th October, 2018, which is a general report, rather indicates the mere authentication of the Exhibit. The Appellant left the Court to rather speculate on the date the Appeal committee delivered its decision. This is forbidden of this Court and as such I agree with the trial Court that outside 30th September, 2018 there is no other date the Appellant deposed to in his affidavit and further affidavit as when his cause of action arose. The deposition of the Appellant at paragraph 41 of the affidavit in support of the Originating Summons, that he appeared before the Appeal Committee cannot give a clue as the same was countered by the 1st and 2nd Respondents and the Appellant did not attach the Appeal Committee?s record of proceedings for the said 13th October, 2018.
I therefore hold that the trial Court properly evaluated the evidence before him before it held that the Appellant failed to indicate the date the Appeal Committee decision on his case was made. I further hold that the learned trial Judge was right when it held that the cause of
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action began to run on 30th September, 2018; in which case the suit was not filed within 14 days as required by Section 285 (9) of the 1999 Constitution (4th Alteration, No. 21) Act, 2017. This therefore makes the action incompetent as the same is statute barred.
I resolve issue 1 in favour of the 1st and 2nd Respondents.
Having come to the conclusion that the Appellant?s suit is statute barred, the trial Court lacked the jurisdiction to hear and determine the same. It is now well settled that jurisdiction is the life wire of a Court as no Court can entertain a matter where it lacks the jurisdiction. It is also well settled that the jurisdiction of courts in this country is derived from the Constitution and statutes. No Court is permitted to grant itself power to hear a matter where it is not so endowed and if it does, the entire proceedings and judgment derived therefrom, no matter how well conducted, is a nullity. Therefore every Court must ensure that it is endowed with the jurisdiction to hear a matter before embarking on the exercise else it would be wasting precious judicial time. SeeUTIH V. ONOYIVWE (1991) 1 NWLR (PT. 166) 166, (1991) 1
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SCNJ 25; MADUKOLU V. NKEMDILIM (1962) 2 ALL NLR (PT. 11) 5.
Furthermore, the implication of an action being statute barred is that a plaintiff who ordinarily would have had a cause of action by judicial process because the period of the time laid down by the Limitation Law for instituting such an action has elapsed, automatically loses that right to approach the Court to ventilate his grievance. ASABORO & ANOR. V. PAN OCEAN OIL CORPORATION NIG. LTD. & ANOR. (2017) LPELR ? 41558 (SC); EBOIGBE V NNPC (1994) 5 NWLR (PT. 347) 649.This is to say once an action is statute barred there is nothing for the Claimant to build on.NASIR V. CIVIL SERVICE COMMISSION KANO STATE (2010) LPELR ? 1943 (SC). An action commenced after the expiration of the statutory period within which an action must be brought is not maintainable. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being properly instituted before the Court. EGBE V. ADEFARASIN
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(1987) 1 NWLR (PT. 47) 1; OBIEFUNA V. OKOYE (1964) 1 ALL NLR 96; ADEOSUN V. JIBESIN (2001) 11 NWLR (PT. 724) 290; IBRAHIM V. JUDICIAL SERVICE COMMITTEE KADUNA STATE (1998) 14 NWLR (PT. 584) 1; EBOIGBE V. NNPC (1994) 5 NWLR (PT. 347) 649; ODUBEKO V. FOWLER (1993) 7 NWLR PT. 308 PG. 637. The sum up in the circumstance that I have found that the Appellant?s suit at the trial court was statute barred, is that the trial court had no jurisdiction to try the same no matter how meritorious the case was. The order of dismissal or striking out is merely academic as the legal point is that the Appellant at the stage his suit was found to be statute barred had an empty and unenforceable cause of action if any.
Finally, I affirm the decision of the Trial Federal High Court sitting in Maiduguri delivered on 2/4/19 in Suit No. FHC/CS/55/2018. Consequentially, I hold that since an appeal cannot be maintained on an incompetent action which is statute barred, this appeal cannot succeed as the same is liable to be struck out. Appeal No: CA/J/152/2019 is hereby struck out. I make no order as to cost.
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MUDASHIRU NASIRU ONIYANGI, J.C.A.: My lord, UCHECHUKWU ONYEMENAM, JCA obliged me with the leading Judgment just delivered.
I endorse the reasoning and conclusion that the Appeal fails and should be struck out.
?I also strike out the Appeal and abide by the consequential orders therein.
BOLOUKUROMO MOSES UGO, J.C.A.: I read in advance the judgment just delivered by my learned brother UCHECHUKWU ONYEMENAM, JCA, and I am in agreement with his reasoning and conclusion. I have nothing useful to add. I also strike out the appeal for lack of merit.
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Appearances:
Ibrahim K. Bawa, SAN with him, Abdul Mohammed, Chiemelie N. Onyia, Rabiu Alhassan Bawa, Mukaila Yahaya MavoFor Appellant(s)
Yusuf Ali, SAN and K.K. Eleja, SAN with them, K.S. Lawan, I.O. Atofarati, R.T. Bamigboye for 1st and 2nd RespondentsFor Respondent(s)
Appearances
Ibrahim K. Bawa, SAN with him, Abdul Mohammed, Chiemelie N. Onyia, Rabiu Alhassan Bawa, Mukaila Yahaya MavoFor Appellant
AND
Yusuf Ali, SAN and K.K. Eleja, SAN with them, K.S. Lawan, I.O. Atofarati, R.T. Bamigboye for 1st and 2nd RespondentsFor Respondent