ALL PROGRESSIVE CONGRESS v. SALIHU MOHAMMED & ORS
(2019)LCN/13200(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/48/2019
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 (APC) Appellant(s)
AND
1. SALIHU MOHAMMED
2. ABDULRA’UF ABDULKADIR MODIBBO
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
WHETHER OR NOT A PLAINTIFF HAS A RIGHT TO ENFORCE A CAUSE OF ACTION WHERE THE ACTION 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. 179) 158. PER ABIRIYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A.(Delivering the Leading Judgment): This appeal against the judgment delivered on the 6th March, 2019 in the Federal High Court, Yola Judicial Division holden at Yola.
In the Federal High Court (the Court below), the 1st Respondent was the Plaintiff while the Appellant, 2nd and 3rd Respondents were the 1st ? 3rd Defendants.
At the Court below, the 1st Respondent sought for the determination of nine (9) questions and fourteen reliefs. I will reproduce immediately hereunder the first question for determination as well as the first relief sought. Question 1:
?Whether the 1st Respondent?s primary election conducted for Yola North/Yola South/Girei Federal Constituency on 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 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.?
Relief 1:
A declaration that the 1st Respondent?s
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primary election conducted for Yola North/Yola South/Girei Federal Constituency on 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.?
The originating summons taken out by the 1st Respondent was consolidated with three other suits viz. FHC/YL/CS/5/19, FHC/YL/CS/6/19 and FHC/YL/CS/7/19 which were all against the same defendants though different plaintiffs.
After considering the preliminary objection of Appellant seeking for an order to strike out the 1st Respondent?s suit on the ground inter alia that the action was statute barred, the Court below held that the originating summonses taken out by the 1st Respondent and the three others were statute barred having been caught by Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
?It dismissed the action of the 1st Respondent and the others on the ground
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they were statute barred but proceeded to consider the substantive suits. The Court below at the conclusion of the consideration of the substantive matter held that the Appellant had no candidate at the general election held on 23rd, February, 2019.
Miffed by this decision, the Appellant immediately proceeded to this Court by notice of appeal dated 7th March, 2019 and filed 8th March, 2019. The Notice of appeal contains eight (8) grounds of appeal.
From the eight grounds of appeal, the Appellant presented six issues for determination. Issue 1 of the issues presented for determination is reproduced immediately hereunder:
?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, Alteration (Grounds 1 & 2).
The 1st Respondent submitted seven (7) issues for determination. Issue 1 which is similar to Appellant?s issue 1 is reproduced immediately hereunder:
?Whether the trial Judge was right to have gone ahead to deliver judgment in the substantive
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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 Grounds 1 & 2 of the Notice of Appeal.)
Arguing issue 1, learned counsel for the Appellant submitted that the Court below having held that the 1st Respondent?s suit was statute barred, it was wrong to have gone ahead to determine the substantive matter. The Court was referred toOlagunju & 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 and dismissed same, there was nothing left for it to adjudicate upon.
Learned counsel for the 1st Respondent submitted on issue 1 that the Court below rightly considered the substantive matter after having held that the action was statute barred. He referred the Court to Katto V. CBN (1991) 9 NWLR (Pt. 214) 126 at 149-180, F & F Farms (Nig.) Ltd V. NNPC (2009) 12 NWLR (Pt. 1155) 387 at 409 and FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141 at 174.
?The 2nd Respondent did not file any brief. Learned counsel
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for the 2nd Respondent said the 2nd Respondent filed no brief because they are co-travellers with the appellant. He urged the Court to allow the appeal.
The 3rd Respondent did not file any brief. Learned counsel for the 3rd Respondent said the 3rd Respondent filed no brief because it 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 delivered on 18th January, 2019 and Emiator v. Nigeria Army (1999) 12 NWLR (Pt. 179) 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 330 of the record. It however proceeded to consider the substantive actions. See page 330-333 of the record.
With respect to the Court below, it had no jurisdiction to proceed with the substantive
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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 the 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/4/2019 is hereby struck out.
The originating summons and proceedings in Suit No. FHC/YL/CS/4/2019 commenced outside the time allowed by the Constitution are hereby struck out.
Parties shall bear their respective costs of the appeal.
CHIDI NWAOMA UWA, J.C.A.: I agree.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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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 RespondentFor 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 RespondentFor Respondent