ALL PROGRESSIVES CONGRESS & ANOR v. HON. JOHN HALIMS AGODA & ANOR (2019)

ALL PROGRESSIVES CONGRESS & ANOR v. HON. JOHN HALIMS AGODA & ANOR

(2019)LCN/13010(CA)

In The Court of Appeal of Nigeria

On Monday, the 1st day of April, 2019

CA/B/124/2019

RATIO

ISSUE FOR DETERMINATION: ANY ISSUE FOR DETERMINATION EXTRACTED FROM AN INCOMPETENT GROUND OF APPEAL IS LIABLE TO BE STRUCK OUT

The law is that any issue for determination extracted from an incompetent ground of appeal is liable to be struck out. See Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563 and A.T.S. & Sons v. Ben Electronics Co. Nig. Ltd. (2018) 17 NWLR (Pt. 1647) 1. Consequently, Issue 2 distilled by the appellants, and Issue 4 formulated by the 1st respondent from grounds 3 and 4, are hereby struck out.

ISSUES: ANY ISSUE FOR DETERMINATION NOT COVERED BY A GROUND OF APPEAL IS INCOMPETENT

Any issue not covered by a ground of appeal is incompetent. See Rear Admiral Francis Agbiti v. The Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175 and Dr. Roy Ugo v. Augustina Ugo (2017) 18 NWLR (Pt. 1597) 218. The sole issue identified by the 2nd respondent is incompetent and it is hereby struck out.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

STATUTE OF LIMITATION: ACTIONS SHOULD NOT BE BROUGHT OUTSIDE THE TIME OF LIMITATION
The general principle of law, as settled by decisions of the Supreme Court and this Court, is that if a statute delineates or prescribes a period of time for the institution of an action or a suit, the action or suit shall not be commenced outside the time prescribed by the statute. Put differently, proceedings by an aggrieved party or person must begin within the time circumscribed by the relevant statute. Any action or suit that is brought after or outside the prescribed period is said to be statute-barred. See 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 and National Revenue Mobilization Allocation & Fiscal Commission & Ors. v. Ajibola Johnson & ors (2019) 2 NWLR (Pt. 1656) 247.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

STATUTE OF LIMITATION: WHEN DOES TIME BEGIN TO RUN WHERE THERE IS A STATUTE OF LIMITATION
Where there is a statute of limitation of action, the time begins to run from the date that the cause of action accrues. And a cause of action accrues on the date in which the incident giving rise to the cause of action occurs. See Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649 and Okafor v. A.-G; Anambra State (2005) 14 NWLR (Pt. 945) 210.
The term ?cause of action? means the factual base or some factual situation, a combination of which makes the matter in litigation an actionable wrong or an enforceable right. See Thomas v. Olufosoye (1986) 3 NWLR (Pt. 18) 669; Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) 257 and Alhaji Amaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

1. ALL PROGRESSIVES CONGRESS (APC)
2. CHIEF SOLOMON EDOJAH Appellant(s)

AND

1. HON. JOHN HALIMS AGODA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The 1st respondent was the claimant in Suit No. FHC/ASB/CS/107/2018, commenced by way of an originating summons in the Federal High Court, Asaba Judicial Division, holden at Asaba. In the said suit, the 1st respondent sought answers to the following questions:
1. ? Whether in view of Section 87 (4) (c) (i) and (ii) of Electoral Act 2010 (As Amended) and Article 14 (ii) of the 1st Defendant?s Guidelines for the Nomination of Candidates for the 2019 General Election, the Plaintiff should not be declared the 1st Defendant?s House of Representatives candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election, the Plaintiff having polled the highest number of votes cast in the 1st Defendant?s House of Representatives Primary Election for Ethiope Federal Constituency of Delta State.

2. Whether in view of Section 31(1) and Section 87 (4) (c) (i) and (ii) of the Electoral Act, 2010 (as amended) and Article 14(ii) of the 1st Defendant?s Guidelines for the Nomination of Candidates for the 2019

General Elections, 2019, the 3rd Defendant?s name can be forwarded/sent by the 1st Defendant to the 2nd Defendant as the 1st Defendant?s House of Representatives candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election, the 3rd Defendant having not polled the highest number of votes cast in the 1st Defendant?s House Representatives Primary Election for Ethiope Federal Constituency of Delta State.
3. Whether in view of Section 31(1) and Section 87 (4) (c) (i) and (ii) of the Electoral Act, 2010 (as amended) and Article 14 (ii) of the 1st Defendant?s Guidelines for the Nomination of Candidates for the 2019 General Elections, 2019, the Plaintiff?s name should not have been forwarded/sent by the 1st Defendant to the 2nd Defendant as the 1st Defendant?s House of Representatives candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election, the Plaintiff having polled the highest number of votes cast in the 1st Defendant?s House of Representatives Primary Election for Ethiope Federal Constituency of Delta State.?

The reliefs sought by the 1st respondent were:
1. ?A DECLARATION that the Plaintiff is the 1st Defendant?s House of Representatives candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election, the Plaintiff having polled the highest number of votes cast in the 1st Defendant?s House of Representatives Primary Election for Ethiope Federal Constituency of Delta State.
2. A DECLARATION that in view of Section 31(1) and Section 87 (4) (c) (i) and (ii) of the Electoral Act, 2010 (as amended) and Article 14 (ii) of the 1st Defendant?s Guidelines for the Nomination of Candidates for the 2019 General Elections, the 3rd Defendant?s name cannot be forwarded/sent by the 1st Defendant to the 2nd Defendant as the 1st Defendant?s candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election, the 3rd Defendant having not polled the highest number of votes cast in the 1st Defendant?s House of Representatives Primary Election for Ethiope Federal Constituency of Delta State.
?3. A DECLARATION that in view of Section 31(1) and Section 87(4) (c) (i) and (ii) of the Electoral Act, 2010 (As amended) and

Article 14 (ii) of the 1st Defendant?s Guidelines for the Nomination of Candidates for the 2019 General Election, 2019, the Plaintiff?s name should have been forwarded/sent by the 1st Defendant to the 2nd Defendant as the 1st Defendant?s House of Representative?s Candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election, the Plaintiff having polled the highest number of votes cast in the 1st Defendant?s House of Representatives Primary Election for Ethiope Federal Constituency of Delta State.
4. AN ORDER that the Plaintiff is the Candidate of the 1st Defendant in the House of Representatives Election for Ethiope Federal Constituency for Delta State in the 2019 General Election.
5. AN ORDER directing the 2nd Defendant to remove the name of the 3rd Defendant in its records as the 1st Defendant?s House of Representatives candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election and replacing the said 3rd Defendant?s name in its records with the name of the Plaintiff.
?6. AN ORDER that the Plaintiff be declared the rightful candidate for Ethiope

Federal Constituency of Delta State under the platform of the 1st Defendant and consequently issued a Certificate of Return should the 1st Defendant insist on fielding the 3rd Defendant or any other candidate other than the Plaintiff and the 2nd Defendant accepting such candidature.
7. AN ORDER or perpetual injunction restraining the 2nd Defendant from accepting the name of the 3rd Defendant or any other name, other than the name of the Plaintiff as the 1st Defendant?s candidate for Ethiope Federal Constituency of Delta State for 2019 General Election.?

The 1st respondent?s originating summons was supported with an affidavit of 22 paragraphs, by which he tendered Exhibits ?A? to ?J?. He also filed a further affidavit of 12 paragraphs through which he tendered 5 exhibits ? Exhibits ?G1?, ?H1?, ?K?, ?L? and ?M?.

In response to the 1st respondent?s originating summons, the 2nd appellant, as the 3rd defendant therein, filed the following processes:

1. A counter affidavit of 16 paragraphs by which he tendered Exhibits ?O1?, ?P1? and ?Q1?.
2. A notice of preliminary objection in which the Court was urged to strike out the suit for lack of jurisdiction.
3. A motion on notice praying the trial Court to order pleadings because the facts of the case were hostile.

On behalf of the 1st appellant, that is the 1st defendant in the trial Court, a counter affidavit of 2 paragraphs, paragraph 2 of which has sub-paragraphs (a) to (r) by which exhibits ?Edojah 1? to ?Edojah 8? were tendered.

The 2nd respondent, which was the 2nd defendant in the trial Court filed an ?affidavit of facts? containing 5 paragraphs and tendered Exhibits ?A?, ?B? and ?C?.

The originating summons and the other identified processes filed in the suit were supported with written addresses.

After hearing the 2nd appellant?s preliminary objection and the originating summons together, the trial Court delivered a reserved judgment on the 11th day of February, 2019 in which the preliminary objection was overruled and the questions in the originating summons were answered in

favour of the 1st respondent. The reliefs sought by the 1st respondent were accordingly granted. This appeal is against the said decision.

In the appellants? brief filed on 08/03/2019, learned counsel identified the following three issues for determination:
1. Whether the lower Court was in error to hold that this suit was not filed in violation of the provisions of Section 285(9) of the 1999 Constitution as Amended as the cause of action was incomplete as at the 9th of October 2018 (when the 1st Respondent complained to the Appeals Panel of the 1st Appellant about the alleged replacement of his name as the Candidate of the 1st Appellant) but only became complete on the 18th of October 2018 when the name of the 2nd Appellant was submitted to the 2nd Respondent: Grounds 1 and 2.
2. Whether the lower Court was in error when it refused to allow the Appellants to respond to the new documents filed by the 1st Appellant and holding that the 2nd Appellant had no right to respond to the new documents filed by the 1st Respondent as pleadings had closed. Grounds 3 and 4.

3. Whether having regard to the Affidavits and Exhibits of the parties was the lower Court not in error when; it refused to order pleadings; it believed the case of the 1st Respondent by picking holes in the case of the Appellants; it held that the 2nd Appellant made admissions of facts which negated the case of the Appellants. Grounds 5, 6, 7 and 8.

The 1st respondent filed a motion on notice in which he asked the Court to strike out ?grounds 3 and 4 of the notice of appeal filed on the 21st day of February, 2019 in this appeal? on the following grounds:
1. Grounds 3 and 4 of the Notice of Appeal in this Appeal are against the decision of the trial Court made on 25th January, 2019.
2. By Section 285(9) 1999 Constitution of the Federal Republic of Nigeria (Fourth Alteration 2018, an appeal against a decision of Court in a pre-election matter must be filed within 14 days from the date of the decision appealed against.
3. The Notice of Appeal in this Appeal containing the aforesaid grounds 3 and 4 was filed on 2st February, 2019, about 28 days after the decision of the trial Court.
4. The said grounds 3 and 4 of the Notice of Appeal are against the interlocutory decision of the trial Court which was filed without leave of Court.

5. The said grounds 3 and 4 of the Appellant?s Notice of Appeal are incompetent and should be struck out having been filed out of time and filed without leave being an interlocutory decision of the trial Court.

Arguments on the 1st respondent?s objection to grounds 3 and 4 are on pages 5 to 8 of his brief filed on 27/03/2019.

In respect of the appeal, the 1st respondent distilled the following four issues for determination:-
1. ?Whether in view of the evidence before it and the facts and circumstances surrounding the case, the trial Court was not right in law when it held that the 1st Respondent?s suit is not in violation of Section 285 (9) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration 2018). (Encompassing Grounds 1 and 2 of the Notice of Appeal).
2. Whether in view of the documentary and affidavit evidence before it, the trial Court was right in law to have entered Judgment in favour of the 1st Respondent. (Encompassing Grounds 6, 7 and 8 of the Notice of Appeal.
3. Whether considering the nature of the affidavit and documentary evidence before

it, the trial Court was not right in law to have refused to order pleadings (Encompassing Ground 5 of the Notice of Appeal).
4. Whether considering the facts and circumstances surrounding 1st Respondent?s case at the trial Court and Order 13 Rule 35 (15) of the Federal High Court Civil Procedure Rules, 2009, the trial Court was not right in law to have refused Appellants? applications to respond to the 1st Respondent?s reply to their Counter Affidavit. (Encompassing Grounds 3 and 4 of the Notice of Appeal.?

On behalf of the 2nd respondent, a lone issue for determination was raised in its brief filed on 27/03/2019 as follows:
?Whether the failure of the Appellants to attack in their Notice of Appeal and their brief of argument the findings and conclusion of the learned trial Court pertaining to Exhibits A, B and C attached to the affidavit of facts of the 2nd Respondent does not amount to admission that is adverse to the appeal of the Appellants.?

OBJECTION TO GROUNDS 3 AND 4 IN THE NOTICE OF APPEAL
The argument of the learned counsel for the 1st respondent is that since ?grounds 3 and 4 of the notice of appeal in this appeal are against the decision of the trial Court made on 25th January, 2019?, they were ?filed out of time by virtue of Section 285(11) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration, No. 21) 2018 and (should) accordingly be struck out?. In support of this contention, learned counsel referred to and relied on the case of P.D.P. V. INEC (2014) 17 NWLR (PT.1437) 553.

Learned counsel also contended that the decision appealed against is an interlocutory decision of mixed law and fact, in respect of which the appellants did not obtain leave to appeal against. Relying on the cases of Ifediorah V. Umeh (1988) LPELR 1434 (SC) and Nwosu V. Offor (1997) 2 NWLR (Pt.487) 274; learned counsel submitted that ?leave of Court must first be sort (sic) and obtained before appealing against such decision.”

In response, learned counsel for the appellants argued that an appeal against the interlocutory decision of the trial Court, made on the 25th day of January, 2019 could be incorporated in the appeal against the final judgment delivered on the 11th day of February, 2019.

In support of this contention, learned counsel referred to the cases of Osunbor v. Oshiomhole (2007) 18 NWLR (Pt. 1065) 32; Oraekwe v. Chukwuka (2012) 1 NWLR (Pt. 1280) 191 and Maduako v. Onyejiocha (2009) 5 NWLR (Pt. 1134) 266. He also relied on Section 285 (8) of the 1999 Constitution (as amended) which according to him, ?clearly discourages the Courts? from clogging the appellate Courts with interlocutory appeals that will further delay proceedings even in respect of crucial matters touching upon jurisdiction.”

For the sake of easy comprehension of the matter, I hereby reproduce grounds 3 and 4 of the appellants? grounds of appeal:
3. ?The learn trial judge erred in law in refusing to exercise her inherent jurisdiction to grant the application of the 1st appellant for an adjournment to respond to the 1st respondent?s reply containing new exhibits thereby foreclosing the 1st appellant from presenting his case.
PARTICULARS OF ERROR
i. The 1st appellant?s motion to file counter affidavit out of time was granted on 25/1/19.

ii. The 1st appellant?s had received plaintiff?s reply to his said counter affidavit 4.30 pm on 23/1/19 and informed Court that in view of the new document exhibited in the reply (Exhibit O) they would need to confirm its authenticity from its National Headquarters in Abuja
iii. The Court below refused the 1st appellant thereby occasioning a miscarriage of justice by placing heavy reliance on that exhibit to reach its verdict.
4. The learned trial judge erred in law and denied the 2nd appellant had no right to file a counter affidavit in reply to the 1st respondent?s reply that introduced Exhibits O and R1 which she relied on heavily in finding in favour of the 1st respondents.
PARTICULARS OF ERROR
i. The 2nd appellant?s further affidavit was discountenanced by the Court on 25/1/19
ii. The Court held that pleadings had closed and no further processes can be filed.?

I have carefully considered the arguments on the objection to grounds 3 and 4 of the appellants? grounds of appeal. A perusal of the judgment of the trial Court, appealed against by the appellants, shows clearly that grounds 3 and 4, complained of by the 1st respondent, do not flow from nor relate to the

judgment delivered on 11/02/2019 and which spans pages 639 to 699 of the record of appeal. The law is settled that a ground of appeal must not only relate to the decision appealed against, it must be an attack on the ratio decidendi of the decision appealed against. See Ogbe v. Asade (2009) 18 NWLR (Pt.1172) 106 and Rt. Hon. Michael Balonwu & Ors. v. Governor of Anambra State. (2009) 18 NWLR (Pt.1172) 13.
Since grounds 3 and 4 of the appellants? grounds of appeal do not relate to the judgment of the trial Court, delivered on the 11th day of February, 2019; they are liable to be struck out. See Ogbe V. Asade (2009) 18 NELR (Pt. 1182)106; NDIC V. Okem Ent. Ltd. (2004) 10 NWLR (Pt.880) 107 and Mrs. Ganiat Elias V. Ecobank Nigeria PLC (2016)2 NWLR (Pt. 1549) 175 at 202 ? 203, per Augie, JCA (as he then was, now JSC).

Upon a thorough examination of the record of appeal, I agree with the views of the learned counsel for the 1st respondent that the appellants? complaints, in grounds 3 and 4 of their grounds of appeal, relate to the decision made by the trial Court on the 25th day of January, 2019. The fact that these two grounds relate to

a decision of the trial Court made on the 25th day of January, 2019 can be distilled from the particulars supplied by the appellants, themselves, especially particular (i) to each of the two grounds.
Section 285(11) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) by the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No.21) Act, 2018), hereinafter referred to simply as the ?1999 Constitution (as amended)?, provides as follows:
?285 (11) An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of the judgment appealed against.?
The above constitutional provision is clear, plain, straightforward and unambiguous. The law is trite that were the words used in the Constitution or a statute are clear and unambiguous, the provisions should be interpreted by attaching to the words used by the legislature their ordinary grammatical meaning; unless such an interpretation may result in an absurdity. See Ahmed v. Kassim (1958) 3 FSC 51; (1958) SCNLR 28; Yerokun v. Adeleke (1960) 5 FSC 126; (1960) SCNLR 267; Nafiu Rabiu v. The State (No.2)

(1981) 2 NCLR 293; Fred Egbe v. M.D. Yusuf (1992) 6 NWLR (Pt. 245) 1; A-G, Federation v. A-G; Lagos State (2013) 16 NWLR (Pt.1380) 249 and Prof. Bukar Bababe v. Federal Republic of Nigeria (2019) 1 NWLR (Pt. 1652) 100 at 119, per Kekere ? Ekun, JSC.
By Section 285(11) of the 1999 Constitution (as amended) an appeal from any decision, judgment or order of a Court in a pre-election ?shall be filed within 14 days from the date? of such decision, judgment or order. The implication of the use of the word ?shall? by the legislature in Section 285(11) of the 1999 Constitution (as amended) is that the requirement that an appeal be filed ?within 14 day days from the date? of the decision appealed against in a pre-election matter is mandatory. See Amadi v. INEC (2013) 4 NWLR (Pt. 1345) 595 and ACN V. INEC (2013) 13 NWLR (Pt. 1370) 161.
The law, as settled by the Supreme Court, is that when the Constitution of the Federal Republic of Nigeria, 1999; such as Section 285 (11) of the 1999 Constitution (as amended), stipulates a time limit for doing anything, the time limit specified is like Mount Zion or the Rock of

Gilbratar which cannot be enlarged, expanded, extended or moved and anything done outside the time so fixed by the Constitution is illegal and unconstitutional. See Brig-Gen Mohammed Baba Marwa & Anor v. Admiral Murtala Nyako & Ors (2012) 6 NWLR (Pt. 1296) 199. Therefore, anything done outside the time specified and stipulated by the 1999 Constitution (as amended) amounts to nothing, as it is a mere nullity. See Peoples Democratic Party v. Independent National Electoral Commission (2014) 17 NWLR (pt. 1437) 525.

The other leg of the 1st respondent?s objection is that grounds 3 and 4 of the appellants? grounds of appeal are against an interlocutory decision of mixed law and fact and that leave of Court ought to have been first sought and obtained before appealing against such a decision.
The decision of the trial Court made on the 25th day of January, 2019, and to which the appellants? grounds 3 and 4 relate, covers pages 16 to 18 of the supplementary record of appeal. In refusing to grant the adjournment sought by the 1st appellant on 25/01/2019, the trial Court held and stated at page 18 of the supplementary record, inter alia, as follows:

?It does therefore appeals to this Court that the learned counsel to the 1st defendant was indeed in receipt of the said Exhibit R1 before today and or is aware of the existence of the said Exhibit R1; which is the same as Exhibit 01 attached to the reply to 3rd defendant counter affidavit. The circumstances of this matter is not deserving of further adjourning same owing the reason given above and the rules already cited. Therefore application for adjournment so as to further response to the reply of the plaintiff made by the learned counsel to the 1st defendant is not deserving and same is hereby refused. This matter shall therefore proceed to hearing. I so hold.?
By the above decision, the trial Court merely exercised its discretion not to adjourn the hearing of the case, as applied for by the 1st appellant, based on the facts before it. Grounds 3 and 4 in the appellants? grounds of appeal are grounds challenging the exercise of discretion by the trial Court refusing to adjourn the case. The law is that a ground of appeal challenging exercise of a Court?s discretion is a ground of mixed law and facts. See First Fuel LTD. v. NNPC (2007) 2 NWLR (Pt.1018).

It is settled law that leave of Court is required to be sought and obtained before grounds of mixed law and facts can be filed or argued. See General Electric Company v. Harry Ayoade Akande (2010) 18 NWLR (Pt. 1225) 596 and Okwuagbala v. Ikwueme (2010) 19 NWLR (Pt. 1226) 54.
Where leave is required, the party must first obtain the leave of Court. Failure to obtain leave of Court, where it is required as in the case of grounds 3 and 4, the matter is ipso facto rendered incompetent and liable to be struck out. See A.G; Oyo State v. Fairlakes Hotels LTD. (1988) 2 NWLR (Pt. 77) 430; Oni v. Cadbury NIG. PLC (2016) 9 NWLR (Pt. 1516) 80 and ALL Progressives Grand Alliance v. Dr. Victor Ike Oye & Ors. (2019) 2 NWLR (Pt. 1657) 472.

The objection of the 1st respondent has merit and it is hereby upheld. Accordingly, grounds 3 and 4 in the appellants? notice of appeal are hereby struck out for being incompetent, since they were filed out of time and in breach of the provisions of Section 285(11) of the 1999 Constitution (as amended).

SUBSTANTIVE APPEAL
The issues identified by the respective parties have earlier been reproduced. The sole issue formulated by the learned counsel for the 2nd respondent does not relate to any of the appellants? grounds of appeal. The law is that parties to an appeal are not at liberty to frame issues at large. Any issue for determination must arise from or relate to one ground or more of the appellant?s grounds of appeal. Any issue not covered by a ground of appeal is incompetent. See Rear Admiral Francis Agbiti v. The Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175 and Dr. Roy Ugo v. Augustina Ugo (2017) 18 NWLR (Pt. 1597) 218. The sole issue identified by the 2nd respondent is incompetent and it is hereby struck out.

I will determine the appeal on the two surviving issues identified by the appellant.

In doing so, I adopt issues 1 and 3 as formulated by the learned counsel for the 1st respondent, which issues cover the two issues distilled by the appellants. These issues will be renumbered as issues 1 and 2 and they shall be taken and treated seriatim.

ISSUE 1
?Whether in view of the evidence before it and the facts and circumstances surrounding the case, the trial Court was not right in law when it held that the 1st Respondent?s suit is not in violation of Section 285 (9) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration 2018).
Learned Counsel for the appellant reproduced and referred to paragraphs 13, 14 and 15 of the affidavit in support of the originating summons and some of the exhibits tendered by the 1st respondent. He argued that the 1st respondent?s cause of action accrued on the 9th day of October, 2018 and that the action instituted on the 30th day of October, 2018 ?is longer than a period of fourteen days? stipulated by Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Mr. H.O. Tietie, learned counsel for the appellants contended that the reasoning of the trial Court, on page 663 of the record of appeal, that the 1st respondent was pursuing amicable settlement of the matter under the 1st appellant?s internal dispute mechanism, ?is irrelevant to the running of a time bound action?. In support of this argument, learned counsel for the appellants referred to the cases of Local Government Service Commission, Ekiti State & Anor v. Mr. M.K. Bamisaye (2014) LPELR- 22313 (CA) per Galinje, JCA (as he then was, now JSC) and Local Government Service Commission, Ekiti State & Anor. v. Francis Oluyemi Olamiju, Esq. (2014) LPELR-22469(CA) per Akinbami, JCA.

Learned counsel for the appellants argued that the provisions of the 1999 Constitution (as amended) are superior to the Guidelines of the 1st appellant and that:
?The timeline enacted by the Constitution cannot be subverted or undermined by the Rules enacted by a political party.”
In support of the above submission, learned counsel relied on the case ofAhmed v. Gebi & Ors. (2012) LPELR-8029 (CA) Per Sankey, JCA.

The learned counsel contended that ?the event, decision or action complained of by the 1st respondent in the Suit is the replacement of his name as the candidate of the 1st appellant with the name of the 2nd appellant, effective from 9th October, 2018.”

Counsel stated that the 1st respondent?s suit was commenced outside the time stated by Section 285(9) of the 1999 Constitution (as amended). He contended that ?the timeline stated in Section 285(9) is immutable?. In support of this contended, he relied on the case of Marwa v. Nyako (2012) LPELR-7837 (SC) per Onnoghen, JSC (now CJN).
The Court was urged to resolve this issue in favour of the appellants.

In response, Mr. B.K. Abu, learned counsel for the 1st respondent referred to the affidavit in support of the originating summons and submitted as follows:
?The 1st Respondent?s Affidavit in support of his originating summons at the trial Court showed that between 9th ? 15th and 17th October, 2018, which was before the expiration of 14 days, the issue relating to the replacement of his name had been resolved in his favour by the 1st Appellant?s Appeals Panel. During this period, there was no longer any event,

decision, or action of the 1st Appellant that would have made the 1st Respondent to institute an action. It was the event, decision or action of the 18th of October, 2018, that the 1st Appellant is complaining about in his suit at the trial Court.?
The learned counsel for the 1st respondent contended that:
?Assuming which is not conceded that the cause of action arose on 9th October, 2018, the problem was resolved before the expiration of the period the 1st Respondent would have instituted an action. In the circumstance, it was not necessary for the 1st Respondent to have instituted any action.”

Learned counsel submitted that the cases cited and relied upon by the appellants are inapplicable to the facts and circumstances of this case. He urged the Court to resolve this issue in favour of the 1st respondent.

Section 285(9) of the 1999 Constitution (as amended) provides as follows:
?285(9) – 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 above constitutional provision is quite clear, plain and simple and the words used therein ought to be accorded their ordinary grammatical meanings. By attaching literal interpretation to Section 285(9) of the 1999 Constitution (as amended), it means that every pre-election action, case, cause or matter should be filed within 14 days from the date of the occurrence of the action, decision or event complained of in the suit. Therefore, in order 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 the claimant?s suit to determine ?the date of the event, decision or action complained of in the suit.”
The general principle of law, as settled by decisions of the Supreme Court and this Court, is that if a statute delineates or prescribes a period of time for the institution of an action or a suit, the action or suit shall not be commenced outside the time prescribed by the statute. Put differently, proceedings by an aggrieved party or person must begin within the time circumscribed by

the relevant statute. Any action or suit that is brought after or outside the prescribed period is said to be statute-barred. See 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 and National Revenue Mobilization Allocation & Fiscal Commission & Ors. v. Ajibola Johnson & ors (2019) 2 NWLR (Pt. 1656) 247.
Where there is a statute of limitation of action, the time begins to run from the date that the cause of action accrues. And a cause of action accrues on the date in which the incident giving rise to the cause of action occurs. See Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649 and Okafor v. A.-G; Anambra State (2005) 14 NWLR (Pt. 945) 210.
The term ?cause of action? means the factual base or some factual situation, a combination of which makes the matter in litigation an actionable wrong or an enforceable right. See Thomas v. Olufosoye (1986) 3 NWLR (Pt. 18) 669; Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) 257 and Alhaji Amaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517.<br< p=””

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In the recent case of Mathew Iyeke & 25 Ors. v. Petroleum Training Institute & Anor. (2019) 2 NWLR (Pt. 1656) 217 at 238 per Augie, JSC; Supreme Court gave a very comprehensive and elaborate meaning of ?cause of action? by stating as follows:
?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. 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 a their person; and
vii. it is factual situation, which enables one person to obtain a remedy from another in Court in respect of injury.”
To determine whether or not there is a cause of action and/or when the cause of action occurred, it is only the plaintiff?s originating processes, such as the writ of

summons, the statement of claim, the originating summons and the affidavit in support thereof, that should be considered. See Adimora v. Ajufo (1988) 1 NSCC 1005; Combined Trade Limited v. All States Trust Bank Limited (1998) 12 NWLR (Pt. 576) 56 and Williams v. Williams (2008) 10 NWLR (pt. 1095) 364.
In the case of 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); the Supreme Court 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.?
In this case, the 1st respondent deposed in the affidavit in support of his originating summons that the 1st

appellant conducted a primary election on the 5th day of October, 2018 to select its candidate for the House of Representatives in respect of Ethiope Federal Constituency of Delta State and that, among the contestants who contested the said primary election, he scored the highest number of votes; that his name was forwarded to the 1st appellant in Abuja by the Electoral Committee of the 1st appellant which conducted the primary election; that he later became aware that his name was replaced with the name of the 2nd appellant. See paragraphs 11, 12, 13 and 14 of the affidavit in support of the originating summons.
The 1st respondent then deposed in paragraphs 15, 16, 17 and 18 as follows:
15. ?That as a result of the above development, I quickly wrote an appeal to the 1st Defendant?s Appeals Panel challenging the said removal of my name as the winner of the 1st Defendant?s Primary election for Ethiope Federal Constituency of Delta State and appeared before the Appeals Panel on 12th October, 2018. A copy of my said Appeal is attached herein as Exhibit ?F?.

16. That the Appeals Panel of the 1st Defendant on 16th October, 2018 upheld my appeal and stated that I was the candidate of the 1st Defendant for Ethiope Federal Constituency of Delta State. A copy of the Appeals Panel Report in this regard is attached herein as Exhibit ?G?.
17. That on 17th October, 2018 the National working Committee of the 1st Defendant sat, considered the said report of the said Appeals Panel and in the end affirmed the decision of the Appeals Panel thus affirming my position as the 1st Defendant?s House of Representatives candidate for Ethiope Federal Constituency of Delta State for the 2019 General Election. An extract of the meeting of the 1st Defendant?s National Working Committee for 17th October, 2018 is attached herein as Exhibit ?H?.
18. That to my utter shock, on 18th October, 2018 instead of forwarding my name to the 2nd Defendant as its House of Representatives candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election, the 1st Defendant forwarded/sent the name of the 3rd Defendant who did not poll the highest number of the votes cast in its primary election held on 5th October, 2018 for

Ethiope Federal Constituency of Delta State as its candidate for the said Federal Constituency in the 2019 General Election.?
As can be seen from the above depositions, the 1st respondent?s cause of action crystallized on the 18th day of October, 2018 when the 1st appellant allegedly deprived him of his right to have his name ?forwarded? or ?sent? to the 2nd respondent, but instead submitted the name of the 2nd appellant.
It should be noted that the selection of a candidate to be fielded in any general election by a political party is by a primary election. Primary election, often shortened to ?primary? means ?a preliminary election in which a political party?s voters nominate the candidate who will run in the general election? ? Black?s Law Dictionary, Seventh Edition, page 536.?
Therefore, a primary election, notwithstanding the fact it is a preliminary election, is the process whereby a political party?s members or voters nominate or select the candidate of that political party who will run in a general election. Being a process, a primary election has various stages.

Section 87 of the Electoral Act, 2010 (as amended) provides for the procedure for the nomination of candidates by political parties for general elections.
In this case, in addition to its constitution, the 1st appellant had by Exhibit ?D? provided the guidelines for the nomination of candidates for the 2019 general elections. By paragraph 16(d) of the 1st appellant?s guidelines ? Exhibit ?D?, the decision of the National Working Committee (acting on behalf of the National Executive Committee of the 1st appellant ?is final? in all ?further appeals from State House of Assembly, House of Representatives, Senate and Governorship Primaries.”
I think it is natural and normal for series of events to occur and sundry actions and decisions to be taken in the process of a primary election. However, it is the event and decision or action which is complained of in a pre-election case by the plaintiff that ought to determine, and it actually determines the cause of action.?
Time, therefore, should begin to run from the date of the event, action or decision actually complained in the suit.

In this case, the event, action or decision relied upon by the appellants, is at best the penultimate action, decision or event referred by the 1st respondent. The action, decision or event of the 9th day of October, 2018, heavily relied upon and copiously cited by the appellants is not the relevant action, decision or event for purposes of calculating the time limited by Section 285(9) of the 1999 Constitution (as amended) in this case. The ultimate event, decision or action in this case occurred on the 18th day of October, 2018 and that is the relevant date for the calculation of the 14 days time limit specified by the Constitution.
According to the depositions in the 1st respondent?s affidavit in support of his originating summons, the National Working Committee of the 1st appellant had on the 17th day of October, 2018 resolved the matter in his favour but surprisingly, the following day ? the 18th day of October, 2018, the 1st appellant forwarded the name of the 2nd appellant, instead of his name, as the party?s candidate for the general election. Having regard to the facts pleaded by the 1st respondent,

the ?action?, ?decision? or ?event? he complained in his suit was the forwarding of the 2nd appellant?s name, instead of his name, by the 1st appellant as its candidate for the general election to the 2nd respondent. This ?action?, ?decision? or ?event?, according to the 1st respondent, occurred on the 18th day of October, 2018.
Therefore, by a simple arithmetical calculation, the 1st respondent?s suit filed on the 30th day of October, 2018 was filed within 14 days from the event, decision or action of the 18th day of October, 2018 complained of by the 1st respondent.
I used the phrase ?the facts pleaded by the 1st respondent? advisedly because in any action, cause, matter or suit commenced by way of an originating summons, the affidavit in support of the originating summons is akin to the plaintiff?s pleadings. See Veepee Industries Ltd. v. Cocoa Industries Ltd. (2008) All FWLR (Pt. 425) 166 at 1685 and Peoples Democratic Party v. Timipre Sylva (2012) 12 NWLR (pt. 1316) 85 at 127, per Rhodes-Viviour, JSC.

By its peculiar nature, however, affidavit is more than mere pleadings, because it is a written statement on oath and it is a species of evidence.
In his book ? S.T. Hon?s Law of Evidence in Nigeria, Vol. II, 2nd Edition, pages 1046 to 1047, the learned author ? S.T. Hon (SAN) referred to the cases of Maraya Plastics Ind. Ltd. v. Inland Bank of Nigeria Plc. (2002) FWLR (Pt. 120) 1732 at 1737, per Omage, JCA; Ojukwu v. Onyeador (1991) 7 NWLR (Pt. 203) 286; Inegbedion v. Selo-Ojemen (2004) All FWLR (pt. 221) 1445 at 1460, per Augie, JCA (as he then was, now JSC), amongst others, and comprehensively defined ?affidavit? as follows:
?From all the above, therefore, an affidavit can be defined as a written, typed or printed declaration or solemn statement of facts made either on oath or affirmation before an authorised person, which facts are either derivable from the personal knowledge of the deponent or person making the declaration; or are derived from external sources, provided those sources and the reasons under which belief in those sources is founded upon, are name in the affidavit.?

It should be noted that by Section 285(9) of the 1999 Constitution (as amended) it is the date of the occurrence of ?the event, decision or action complained of in the suit? that will determine when the cause of action accrues. In this con, since there is an amorphous variety of circumstances, facts and situations, each case ought to be considered and determined within the peculiarity of its own facts and circumstances.
Without more, I resolve this issue in favour of the respondents and against the appellants.

ISSUE 2:
Whether considering the nature of the affidavit and documentary evidence before it, the trial Court was not right in law to have refused to order pleadings.

The learned counsel for the appellants referred to the affidavits and counter affidavits filed by the parties and the various exhibits tendered by them. Learned counsel summarized the facts of the matter as follows:
1. The 1st respondent claimed to have won the primary election in issue with 148 votes in an election with 338 accredited voters and the result was signed by one G. Okafor and tendered Exhibit ?E?.

2. The 2nd appellant, on the contrary, claimed that he won the election conducted by the 1st respondent with 280 votes out 624 accredited voters and tendered Exhibit ?Edojah 3?
3. The appellants denied the authenticity of the documents (Exhibits) relied on by the 1st respondent.
4. There was serious dispute as to who conducted the primary election.
5. There was also dispute as to who was the 1st appellant?s candidate for the election to occupy the seat of Ethiope Federal Constituency in the House of Representatives.

Counsel contended that because of the contentious issues, ?the lower Court was in error in not calling oral evidence to resolve this (sic) contentious issues of fact?. In support of his contention, learned counsel referred the Court to the case of Peoples Democratic Party v. Abubakar (2007) 3 NWLR (Pt. 1022) 515 at 551 ? 552.

Learned counsel for the 1st respondent, however, submitted that the 1st respondent?s case was for the trial Court ?to interpret and look at the content of exhibits attached to the affidavit and further affidavit in support of the originating summons and the respective replies to the 1st and 2nd appellants? counter

affidavit vis–vis the relevant provisions of the Electoral Act and the 1st appellant?s Electoral Guidelines?. It was submitted that the 1st respondent?s suit was not contentious and that it was properly commenced by way of an originating summons.

Relying on the case of Obiazikwor v. Obiazikwor (2008) 8 NWLR (pt.1090) 551 and Bunge v. Gov; Rivers State (2006) 12 NWLR (pt.995) 573; learned counsel for the 1st respondent contended, in the alternative, as follows:
?Assuming, which is strongly not conceded, that the 1st respondent?s suit is contentions, this has clearly been explained away by the exhibits attached to the affidavit, further affidavit in support of the 1st respondent?s originating summons and the respective replies to the 1st and 2nd appellants? counter affidavits to the 1st respondent?s originating summons.?

I agree with the submission of the learned counsel for the appellants that where the facts in a case are clearly contentious and hostile, on material facts, originating summons is not the appropriate mode of commencing the action.

See Peoples Democratic Party & 2 Ors. v. Alhaji Atiku Abubakar (2007) 3 NWLR (pt. 1022) 515 at 551 per Rhodes-Viviour, JCA (as he then was, now JSC).

As stated earlier, the parties filed various affidavits in the lower Court in respect of the 1st respondent?s originating summons.

The main issue in the 1st respondent?s suit is whether or not he scored the highest number of the votes cast at the primary election conducted on the 5th day of October, 2018 in which he, the 2nd appellant and other aspirants participated.

The parties fought the case on the basis of affidavit, counter affidavits, further affidavits, affidavit of facts by which various exhibits were tendered. Learned counsel for the appellants strongly believed that the affidavits and exhibits were in conflict and ?the lower Court ought to have ordered pleadings and oral evidence.”

The general rule of the law is that where a Court is faced with affidavits which are irreconcilably in conflict, in respect of material facts, the Court should take oral evidence to resolve the conflict. See Section 116 of the Evidence Act, 2011 and the cases of Uku v. Okumagba (1974) 3 SC 35;

Falobi v. Falobi (1976) 1 NMLR 169; Faluyi v. Oderinde (1987) 4 NWLR (pt. 64); Pepple v. Green (1990) 4 NWLR (Pt. 142) 108 and Oyefeso v. Omogbehin (1991) 4 NWLR (Pt. 187) 596.
However, it is not in all cases that the Court will resort to oral evidence to resolve conflicting affidavits. Where the parties have tendered documentary evidence, which is sufficient to resolve the conflicting affidavits, the Court can rely on such documentary evidence and apply its God-given wisdom and learning to resolve the conflict. See Lijadu v. Lijadu (1991) 1 NWLR (Pt. 169) 627; Okefie v. Olughor (1995) 5 SCNJ 217; Okeke v. Nwokoye (1999) 13 NWLR (Pt. 635) 495 and Odedeyi v. Odedeyi (2000) 2 SC 93.

The main area of conflict in the 1st respondent?s affidavits and the appellants? counter affidavits is whether or not the 1st respondent won the primary election conducted on the 5th day of October, 2018. In this respect, the 2nd respondent independently confirmed the 1st respondent?s position by deposing to in paragraph 4 of its ?affidavit of facts? as follows:
?4. That Hassan Adamu, principal executive officer, Legal Department of the 2nd

Defendant on Monday, 21/01/2019 in the office of the 2nd Defendant at about 3.15pm informed me and I verily believed him as follows;
(a) that the 1st Defendant in compliance with the law invited the 2nd Defendant to its primary for the Ethiope Federal Constituency, Delta State.
(b) that officers of the 2nd Defendant Ethiope East LGA, Delta State by its letter dated 12th October, 2018 forwarded the outcome/result of the 1st defendant?s primary for the Ethiope Federal Constituency, Delta State that took place on 5th October, 2018 and the said latter and results are attached and marked as EXHIBITS A, B AND C respectively.?

Exhibits ?A?, ?B? and ?C? tendered by ?the 2nd respondent confirm that the 1st respondent won the primary election conducted on the 5th day of October, 2018.

The trial Court was right in resolving the case based on the documentary evidence before it, without ordering for pleadings or calling for oral evidence.
This issue is also resolved in favour of the respondents and against the appellants.

Having resolved all the issues against the appellants, I find no merit in this appeal. The appeal is hereby dismissed and the judgment of the trial Court is affirmed.

The sum of N250, 000.00 (Two Hundred and Fifty Thousand Naira only) is hereby awarded as costs in favour of the 1st respondent and against the appellants.

HELEN MORONKEJI OGUNWUMIJU J.C.A.: I have read in draft the Judgment just delivered by my learned brother Moore Aseimo Abraham Adumein JCA.

I share the same view and agree with the reasoning and conclusion that the appeal be dismissed as lacking in merit. I will add a few words. The cause of action in a case crystallizes when all the aggregates of facts which delineate and constitutes the complaint are present. Thus the cause of action becomes complete so that the aggrieved party can begin to maintain his cause of action See Owie V. Ighiwi (2005) LPELR – 2846 (SC) (2005) NWLR.
In this case, I share the view that to determine when the cause of action arose, we must look at the claim at the trial Court. The 2 and 3 heads of declaration sought at trial are as follows:

“A DECLARATION that in view of Section 31(1) and Section 87(4) (c) (I) and (II) of the Electoral Act, 2010 (as amended) and Article 14 (ii) of the Defendant?s Guidelines for the Nomination of Candidates for the 2019 General Elections, the 3,d Defendant?s name cannot be forwarded/sent by the 1st Defendant to the 2nd Defendant as the 1st Defendant?s candidate for Ethiope Federal Constituency of Delta State in the 2019 General Election, the 3rd Defendant having not polled the highest number of votes cast in the 1st Defendant?s House of Representatives Primary election for Ethiope Federal Constituency of Delta State.”
“A DECLARATION that in view of Section 31(1) and Section 87(4) (c) (I) and (ii) of the Electoral Act, 2010 (As amended) and Article 14 (ii) of the 1st Defendant?s Guidelines for the Nomination of Candidates for the 2019 General Election, 2019, the Plaintiff?s name should have been forwarded/sent by the 1st Defendant to the 2nd Defendant as the 1st Defendant?s House of Representative?s Candidate for Ethiope Federal Constituency of Delta State In the 2019 General Election, the Plaintiff having polled the highest number of votes cast in the

1st Defendant?s House of Representatives Primary Election for Ethiope Federal Constituency of Delta State.”

Therefore it is clear that in this case, the factual situation which entitles the 1st Respondent to a remedy against the Appellants was the submission of the name of the 2nd Appellant as the candidate of the 1st Appellant instead of the 1st Respondent to the 2nd Respondent. That act of submitting a name other than his own name constituted the complete grievance which gave the 1st Respondent a cause of action. An action before that day would have been jumping the gun, since he claimed to have won the primaries and nothing official had been done by the party against which he could complain. The challenge to the claim at the trial Court that it is statute barred pursuant to Section 285(9) of the 1999 Constitution 4th Alteration Amendment Act is in my view misconceived since I also hold the view that the cause of action did not accrue till 18th October, 2018 when the name of the 2nd Appellant was forwarded to INEC.

I affirm the Judgment of the Federal High Court delivered in Suit No: FHC/ASB/CS/107/2018 on 11th February, 2019. I abide by the order as to cost.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, JCA. I am in full agreement with the reasoning and conclusion therein.

I also resolve all the issues in this appeal against the Appellants. I agree that this appeal deserves to be dismissed as being unmeritorious.
?I abide by the Order as to cost in the lead judgment.

Appearances:

H.O. Tietie, Esq.,For Appellant(s)

B.K. Abu, Esq, for the 1st respondent.
E.O. Namuna, Esq. for the 2nd respondent.For Respondent(s)

Appearances

H.O. Tietie, Esq.,For Appellant

AND

B.K. Abu, Esq, for the 1st respondent.
E.O. Namuna, Esq. for the 2nd respondent.For Respondent