LawCare Nigeria

Nigeria Legal Information & Law Reports

ALL PROGRESSIVE CONGRESS v. ABUBAKAR BABAZANGO & ORS (2019)

ALL PROGRESSIVE CONGRESS v. ABUBAKAR BABAZANGO & ORS

(2019)LCN/13198(CA)

In The Court of Appeal of Nigeria

On Monday, the 6th day of May, 2019

CA/YL/54/2019

 

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

ALL PROGRESSIVE CONGRESS Appellant(s)

AND

1. ABUBAKAR BABAZANGO
2. ABDULRA’UF ABDULKADIR MODIBBO
3. NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

RATIO

WHETHER OR NOT A PLAINTIFF HAS A RIGHT TO ENFORCE A CAUSE OF ACTION THAT IS STATUTE BARRED

Where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action had lapsed. A Court of law has no jurisdiction to entertain an action that is statute barred. See the unreported decision of the Supreme Court in Toyin V. Peoples Democratic Party & 3 Ors Sc. 308/2018 delivered on 18th January, 2019 and Emiator v. Nigeria Army (1999) 12 NWLR (Pt. 631) 158.

WHETHER OR NOT A COURT CAN DETERMINE A SUBSTANTIVE SUIT WHERE IT HAS HELD THAT THE ACTION IS STATUTE BARRED 
In the instant matter, the Court below held that the action and three others with which it was consolidated were statute barred. See page 295 of the record. It however proceeded to consider the substantive actions. With respect to the Court below, it had no jurisdiction to proceed with the substantive action in this matter having found that the action was caught by the provision of Section 285 (9) of the 1999 Constitution FRN (as amended). PER ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment delivered on the 6th March, 2019 in the Federal High Court, Yola Division holden at Yola.

At the Federal High Court (the Court below), the 1st Respondent was the Plaintiff, the Appellant was the 1st Defendant. The 2nd Respondent was the 2nd Defendant while the 3rd Respondent was the 3rd Defendant.

The suit of the 1st Respondent was consolidated with three other suits namely FHC/YL/CS/5/19, FHC/YL/CS/4/19 and FHC/YL/CS/6/19 all against the same defendants though different plaintiffs.

In the originating summons taken by the 1st Respondent he sought for the determination of nine questions. The first question is reproduced immediately hereunder:
?Whether the 1st Respondent?s Primary election conducted for Girei/Yola North/Yola South Federal Constituency on the 7th day of October, 2018 is in compliance with the provisions of Section 87 (4) (c) (i) and (ii) of the Electoral Act, 2010 (as amended) to warrant the 1st Respondent submitting the name of the 2nd Respondent to the 3rd Respondent as its Candidate for the 2019 General

1

Election into Girei/Yola North/Yola South Federal Constituency of Adamawa State.

Upon the determination of the questions, the 1st Respondent sought for fourteen reliefs. Relief one is reproduced immediately hereunder:
A DECLARATION that the 1st Respondent?s Primary election conducted for Girei/Yola North/Yola South Federal Constituency on the 7th day of October, 2018 is NOT in compliance with the Provisions of Section 87(4) (c) (i) and (ii) of the Electoral Act, 2010 (as amended) to warrant the 1st Respondent submitting the name of the 2nd respondent to the 3rd Respondent as its Candidate for the 2019 General Election into Yola North/Yola South/Girei Federal Constituency of Adamawa State.

After considering various preliminary objections, the Court below held that the action of the 1st Respondent and the three others were statute barred. It nevertheless proceeded to consider the suits on the merit and held inter alia that the Appellant had no candidate in the general election of 23rd February, 2019.

Offended by this decision, the Appellant immediately proceeded to this Court by a notice of appeal dated 7th March, 2019 but filed 8th

2

March, 2019. The notice of appeal contains eight grounds of appeal from which the Appellant presented six issues for determination in its brief of argument dated and filed 9th April, 2019.

Issue 1 reproduced immediately hereunder reads as follows:
Whether the trial judge was right to have gone ahead to deliver judgment in the substantive Suit after dismissing the same suit on the ground that same is statute barred by virtue of Section 285(9) of the 1999 Constitution. 4 Alteration (Grounds 1 & 2).

The 1st Respondent adopted the issues submitted by the Appellant for determination.
The 2nd and 3rd Respondents did not file any briefs.

Arguing issue 1 learned counsel for the Appellant submitted that the Appellant having held that 1st respondent?s action was statute barred, erred when it proceeded to consider it on the merits.
The Court was referred to Nasir V. Kano State & Ors (2010) LPELR-1943 page 16 and Olagunju & Anor V. PHCN PLC (2011) LPELR -2556 page 11.

It was submitted that the Court below having held that the 1st Respondent?s suit was statute barred, there was nothing left for it to adjudicate

3

upon as such exercise can only amount to an exercise in futility.

On this issue, learned counsel for the 1st Respondent submitted that the trial Court is bound to pronounce on all issues placed before it. That a trial Court or an intermediate Court must pronounce on the merits of the case before it. The Court was referred to Katto V. C.B.N. (1991) 9 NWLR (Pt. 214)126 at 149-150 and F & F Farms (Nig) Ltd V. N.N.P.C (2009) 12 NWLR (Pt. 155) 287 at 409.

2nd Respondent filed no brief. Learned counsel for the 2nd Respondent stated that the 2nd Respondent was aligning himself with the Appellant.
The 3rd Respondent filed no brief. Learned counsel for the 3rd Respondent said the 3rd Respondent is neutral.

Where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action had lapsed. A Court of law has no jurisdiction to entertain an action that is statute barred. See the unreported decision of the Supreme Court in Toyin V. Peoples Democratic Party & 3 Ors Sc. 308/2018

4

delivered on 18th January, 2019 and Emiator v. Nigeria Army (1999) 12 NWLR (Pt. 631) 158.
In the instant matter, the Court below held that the action and three others with which it was consolidated were statute barred. See page 295 of the record. It however proceeded to consider the substantive actions. With respect to the Court below, it had no jurisdiction to proceed with the substantive action in this matter having found that the action was caught by the provision of Section 285 (9) of the 1999 Constitution FRN (as amended).
Issue 1 is therefore resolved in favour of the Appellant and against the 1st Respondent.

From the result of the resolution of issue 1 it will be a futile exercise considering remaining issues in the appeal.
This appeal succeeds on issue 1 alone. The appeal is allowed.

The judgment of the Court below in the substantive matter delivered on 6th February, 2019 in Suit No. FHC/YL/CS/7/2019 is hereby struck out.

?The originating summons and proceedings in Suit No. FHC/YL/CS/7/2019 commenced outside the time allowed by the Constitution are hereby struck out.
Parties shall bear their respective costs of the appeal.

5

CHIDI NWAOMA UWA, J.C.A.: I agree.

?ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

 

 

 

6

Appearances:

Sule Shu’aibu, Esq.For Appellant(s)

Y.D Dangana, Esq. with him, Idris Musa Talle, Esq. for the 1st Respondent.

Samuel Atung, Esq. for the 2nd Respondent.

I. Bala, Esq. for the 3rd Respondent.For Respondent(s)

 

Appearances

Sule Shu’aibu, Esq.For Appellant

 

AND

Y.D Dangana, Esq. with him, Idris Musa Talle, Esq. for the 1st Respondent.

Samuel Atung, Esq. for the 2nd Respondent.

I. Bala, Esq. for the 3rd Respondent.For Respondent