ALL PROGRESSIVE CONGRESS v. HON. LAWAL ABUBAKAR GARBA & ORS
(2019)LCN/13199(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/50/19
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 (APC) Appellant(s)
AND
1. HON. LAWAL ABUBAKAR GARBA
2. ABDULRAUF ABDULKADIR MODIBBO
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
WHETHER OR NOT THE QUESTION OF A MATTER BEING STATUTE BARRED TOUCHES ON THE JURISDICTION OF THE COURT
Where the Court holds that a matter before it is statute barred, it touches on the jurisdiction of the Court to entertain the matter, it has no jurisdiction to entertain it however meritorious the case may be.
The Plaintiff?s right of action is taken away leaving him with no enforceable cause of action. When the lower Court dismissed the action for being statute barred, there was nothing left for the Court to determine, as doing so would be an exercise in futility. See NASIR VS. CIVIL SERVICE COMMISSION KANO STATE & ORS (2010) (SUPRA). The learned trial judge rightly took the Preliminary Objection along with the substantive suit, the resolution of the Preliminary Objection was rightly done first. The resolution in this case terminated the determination of the merit of the case. In OLAGUNJU & ANOR VS. PHCN PLC (2011) (SUPRA), His Lordship Onnoghen, JSC (as he then was) stated clearly the position of the law thus:
?It should be noted that when a defendant contends that the action of the plaintiff is statute barred, he is raising an issue of jurisdiction of the Court on points of law because where an action is found to be statute barred it means that the Court has no jurisdiction to entertain it however meritorious the case may be.The success of that point of law takes away the right of action from the plaintiff leaving him with an empty unenforceable cause of action.? (Underlined mine for emphasis).
See also EBOIGBE VS. NNPC (1994) 5 NWLR (PT. 437) 649, ASABORO & ANOR VS. PAN OCEAN OIL CORPORATION (NIG) LTD & ANOR (2017) LPELR 41558 (SC) AT 30-31, ADEKOYA VS. FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT. 1099) 539. PER UWA, J.C.A.
WHETHER OR NOT THE COURT CAN GO INTO THE MERIT OF A SUBSTANTIVE SUIT WHERE IT UPHOLDS THE OBJECTION TO THE COMPETENCE OF THE SUIT
The Court having upheld the objection to the competence of the suit ought not to have gone into the merit of the substantive suit, doing so is an exercise in futility, purely academic. It is immaterial that the substantive matter would have succeeded. See CONGRESS FOR PROGRESSIVE CHANGE VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2011) LPELR- 8257 (SC) PP 78 – 79, paragraphs G-E. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party. When the trial Court upheld the preliminary objection and held that the suit was statute barred, there was no live issue before the trial Court for determination that would attract any benefit to the successful party. See TANIMOLA VS. MAPPING GODATTA LIMITED (1995) 6 NWLR (PT. 403) 517, NWOBOSHI VS. ACB (1995) 6 NWLR (PT. 404) 658, OGBONNA VS. PRESIDENT F.R.N. (1997) 5 NWLR (PT. 504) 281, NDULUE VS. IBEZIM (2002) 12 NWLR (PT. 780) 139 AND IKUFORIJI VS. F.R.N. (2018) LPELR ? 43884 (SC) P. 11, C-F. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Appellant who was dissatisfied with the judgment of the trial Court delivered on 6th March, 2019, presided over by A. M. Anka, J., filed his Notice of Appeal against same on 8th April, 2019.
The background facts are that the 1st Respondent at the lower Court commenced his suit via an Originating Summons asking the lower Court amongst other reliefs sought to declare that the Appellant?s Primary Election conducted for Yola North/Yola South/Girei Federal Constituency on the 7th day of October, 2018 was not in compliance with the provisions of Section 87(4) (c) (i) and (ii) of the Electoral Act, 2010 (as amended) and that it was unlawful for the Appellant to have recognised and forwarded 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. It was also sought that the trial Court should declare as inconclusive the Primary Election held on the 7th of October, 2018, it should set aside the nomination of the 2nd Respondent by the Appellant and restrain the 3rd
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Respondent from recognising or dealing with the 2nd Respondent as the candidate of the Appellant in the General Election.
In response/opposition to the Originating Summons, the Appellant amongst other processes, filed a motion on Notice on the 22nd of January, 2019 challenging the jurisdiction of the lower Court to entertain the 1st Respondent?s suit at the lower Court on various grounds.
The Appellant filed its Counter Affidavit in opposition to the 1st Respondent?s Originating Summons.
In response to the challenge of the jurisdiction of the Court and the Appellant?s counter affidavit, the 1st Respondent filed a Counter Affidavit in opposition to the Motion on Notice and a further affidavit on points of law in support of the Originating Summons.
In its judgment, the lower Court upheld the Preliminary Objection filed by the Appellant and dismissed the suit of the 1st Respondent and went ahead to grant consequential orders in respect of the substantive suit after holding that it lacks the jurisdiction to entertain the said suit.
?
The Appellant was dissatisfied with the judgment in respect of the substantive suit, thus
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this appeal. The following issues were distilled for the determination of the Appeal;
ISSUE ONE
?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, 4th Alteration. (Ground 1&2).
ISSUE TWO
Whether the learned trial Judge was right to have held that the decision of the National Working Committee of the Appellant to have nominated the 2nd Respondent as the Appellant?s candidate for the 2019 general election is justifiable. (Ground 3)
ISSUE THREE
Whether the trial Judge was right to have suo motu raised and decided on the issue of over-voting when same was never raised as an issue or argued by any of the parties at the lower Court without giving the parties the opportunity to address it on the issue so raised suo motu. (Ground 4).
ISSUE FOUR
Whether the learned trial Judge was right to have granted reliefs not claimed at the lower Court and of which there was no scintilla of evidence in respect of same by any of the parties at the
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lower court. (Ground 5).
ISSUE FIVE
Whether the learned trial Judge was right to have gone ahead to pronounce on the February 23rd, 2019 general election for office of a member representing Yola North, Yola South, Girei Federal Constituency of Adamawa State by nullifying the election/return of the Appellant?s candidate (2nd Respondent) having initially found and held that only an election Tribunal established under Section 285(1) of the 1999 Constitution and not the Federal High Court has the requisite jurisdiction to nullify an election conducted by INEC (Ground 6).
ISSUE SIX
Whether the learned trial Judge was right to have held that the case of APC VS. KARFI (2018) 6 NWLR (PT. 1616) PAGE 479 is in all fours with the 1st Respondent?s case at the lower Court (Ground 7).
ISSUE SEVEN
Whether the learned trial Judge was right to have relied on an Originating Summons that was never issued by the lower Court either by the registrar or the Honourable Judge (Ground 8).
The 1st Respondent on his part distilled the following issues for the determination of the appeal:
i. ?Whether the trial
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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 4th Alteration.
(Distilled from Ground 1 & 2 of the Notice of Appeal)
ii. Whether the trial Court was right to have held that the decision of the National Working Committee of the Appellant to have nominated the 2nd Respondent as the Appellant?s candidate for the 2019 general election is justiciable. (Distilled from ground 3 of the Notice of Appeal)
iii. Whether the trial Judge was right to have suo motu raised and decided on the issue of over-voting when same was never raised as an issue or argued by any of the parties at the lower Court without giving the parties the opportunity to address it on the issue so raised suo motu. (Distilled from ground 4 of the Notice of Appeal)
iv. Whether the learned trial Judge was right to have granted reliefs not claimed at the lower Court and of which there was no scintilla of evidence in respect of same by any of the parties at the lower Court. (Distilled from ground 5 of
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the Notice of Appeal)
v. Whether the learned trial Judge was right to have gone ahead to pronounce on the February 23rd, 2019 General Elections for office of a member representing Yola North, Yola South, Girei Federal Constituency of Adamawa State by nullifying the election/return of the Appellant?s candidate (2nd Respondent) having initially found and held that only an election Tribunal established under Section 285(1) of the 1999 Constitution and not Federal High Court has the requisite jurisdiction to nullify an election conducted by INEC.
(Distilled from ground 6 of the Notice of Appeal).
vi. Whether the learned trial Judge was right to have held that the case of APC VS. KARFI (2018) 6 NWLR (Pt. 1616) PAGE 479 is in all fours with the 1st Respondent?s case at the lower Court. (ground 7)
vii. Whether the learned trial Judge was right to have relied on an originating summons that was never issued by the lower Court either by the registrar of the Honourable Judge.? (ground 8).
The 2nd and 3rd Respondents did not file any brief of argument. The 2nd Respondent learned counsel aligned himself with the
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argument of the learned counsel to the Appellant while learned counsel to the 3rd Respondent remained neutral in the matter.
In arguing the appeal, the learned counsel to the Appellant, Sule Shuaibu Esq., relied on his Brief of Argument filed on 9/4/19 in urging us to allow the appeal. In arguing his issue one, it was submitted that the trial Court having held that the 1st Respondent?s suit is statute barred and thereafter dismissed same, ought not to have gone ahead to consider the already dismissed suit and granting the reliefs sought by the 1st Respondent who was then the Plaintiff. Reliance was placed on the following case: IROEGBU & ORS VS. OKEKE & ANOR. (2016) LPELR ? 40620 PP. 5-7, Paragraphs D-C on the effect of success of a Preliminary Objection. Also, ADEKANOLA & ORS VS. ASSOCIATED PROPERTY DEVELOPMENT CO. LTD & ORS (2012) LPELR -14345 (CA) P. 38, Paragraphs A-B on the position of the law where a Preliminary Objection challenging the Court?s jurisdiction is heard along with the substantive suit or application. See ADEKOYA VS. FHA (2008) LPELR -105 (P.17), Paragraphs. B-C; NASIR VS. CIVIL SERVICE COMMISSION KANO
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STATE & ORS (2010) LPELR ? 1943 P.16, Paragraphs C-D and OLAGUNJU & ANOR. VS. PHCN PLC (2011) LPELR – 2556 P.11, Paragraphs C-E. It was argued that the suit having been held to be statute barred and dismissed, there was nothing left for the lower Court to adjudicate upon. See MAMMAN & ANOR. VS. HAJO (2016) LPELR ? 40653 P.19, Paragraphs B-C. The resolution of a dismissed suit was argued to be an exercise in futility.
On the part of the learned counsel to the 1st Respondent Y. D. Dangana Esq., in response to issue one, submitted that the trial Court was right to have given judgment in the alternative on the assumption that the position might be wrong. It was argued that a trial Court is bound to pronounce upon all issues placed before it, in that a trial or intermediate Court must pronounce on the merits of the case before it in the alternative to its declining jurisdiction. See KATTO VS. C.B.N. (1991) 9 NWLR (PT. 214) 126 AT 149-150 Paragraphs G-A. It was argued that the trial Court was right to have proceeded to consider the merits of the suit in the alternative, for the reason that should the Court of Appeal hold otherwise and
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remit same back for retrial, time would have elapsed more so that the suit borders on pre-election as guided by the 4th Alteration to the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It was submitted that the 180 days would not be met if this Court found that the ruling of the trial Court on the Preliminary Objection was wrong. See F & F FARMS (NIG) LTD VS. NNPC (2009) 12 NWLR (PT. 1155) 387 AT 409 Paragraphs D-E and FRN VS. DAIRO (2015) 6 NWLR (PT. 1454) 141 AT 174 Paragraphs F-H.
I will utilize the issues as distilled by the Appellant. At the lower Court, the learned trial judge held that the 1st Respondent?s suit before him was statute barred and thereafter dismissed same. From the grounds of appeal and the reliefs sought to be determined by this Court, the Appellant is not challenging the holding that the suit was statute barred or the order dismissing same but, the trial Court proceeding to determine the merits of the suit after the dismissal order. The issue to be resolved is therefore narrowed down. Where the Court holds that a matter before it is statute barred, it touches on the jurisdiction of the Court to
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entertain the matter, it has no jurisdiction to entertain it however meritorious the case may be.
The Plaintiff?s right of action is taken away leaving him with no enforceable cause of action. When the lower Court dismissed the action for being statute barred, there was nothing left for the Court to determine, as doing so would be an exercise in futility. See NASIR VS. CIVIL SERVICE COMMISSION KANO STATE & ORS (2010) (SUPRA). The learned trial judge rightly took the Preliminary Objection along with the substantive suit, the resolution of the Preliminary Objection was rightly done first. The resolution in this case terminated the determination of the merit of the case. In OLAGUNJU & ANOR VS. PHCN PLC (2011) (SUPRA), His Lordship Onnoghen, JSC (as he then was) stated clearly the position of the law thus:
?It should be noted that when a defendant contends that the action of the plaintiff is statute barred, he is raising an issue of jurisdiction of the Court on points of law because where an action is found to be statute barred it means that the Court has no jurisdiction to entertain it however meritorious the case may be.The success
10
of that point of law takes away the right of action from the plaintiff leaving him with an empty unenforceable cause of action.? (Underlined mine for emphasis).
See also EBOIGBE VS. NNPC (1994) 5 NWLR (PT. 437) 649, ASABORO & ANOR VS. PAN OCEAN OIL CORPORATION (NIG) LTD & ANOR (2017) LPELR 41558 (SC) AT 30-31, ADEKOYA VS. FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT. 1099) 539. The Court having upheld the objection to the competence of the suit ought not to have gone into the merit of the substantive suit, doing so is an exercise in futility, purely academic. It is immaterial that the substantive matter would have succeeded. See CONGRESS FOR PROGRESSIVE CHANGE VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2011) LPELR- 8257 (SC) PP 78 – 79, paragraphs G-E. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party. When the trial Court upheld the preliminary objection and held that the suit was statute barred, there was no live issue before the trial Court for determination that would attract any benefit to the successful
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party. See TANIMOLA VS. MAPPING GODATTA LIMITED (1995) 6 NWLR (PT. 403) 517, NWOBOSHI VS. ACB (1995) 6 NWLR (PT. 404) 658, OGBONNA VS. PRESIDENT F.R.N. (1997) 5 NWLR (PT. 504) 281, NDULUE VS. IBEZIM (2002) 12 NWLR (PT. 780) 139 AND IKUFORIJI VS. F.R.N. (2018) LPELR ? 43884 (SC) P. 11, C-F.
For the above reasons, the trial Court was wrong to have determined the merit of the substantive suit after holding that the suit was statute barred and dismissed same. Issue one is resolved in favour of the Appellant.
Having resolved issue one in favour of the Appellant, there would be no need to proceed to resolve the rest of the issues, as doing so would also amount to an academic exercise that would be of no benefit to any of the parties.
Based on the resolution of the Appellant?s issue one, I allow the appeal for being meritorious. The judgment of the trial Court in respect of the substantive suit is hereby set aside.
Parties to bear their respective costs.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
?ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
Sule Shuaibu, Esq.For Appellant(s)
Y. D. Dangana, Esq. with him, Idris M. Talle, Esq. for the 1st Respondent.
S. Atung, Esq. for the 2nd Respondent.
Ishaka Bala Esq. for the 3rd RespondentFor Respondent(s)
Appearances
Sule Shuaibu, Esq.For Appellant
AND
Y. D. Dangana, Esq. with him, Idris M. Talle, Esq. for the 1st Respondent.
S. Atung, Esq. for the 2nd Respondent.
Ishaka Bala Esq. for the 3rd RespondentFor Respondent