ALL PROGRESSIVES CONGRESS v. SA’ADATU MADAWAKI BELLO & ORS
(2019)LCN/13201(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/52/2019
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 PROGRESSIVES CONGRESS (APC) Appellant(s)
AND
1. SA’ADATU MADAWAKI BELLO
2. ABDULRA’UF ABDULKADIR MODIBBO
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
WHETHER OR NOT THE COURT CAN ENTERTAIN AN ACTION THAT IS STATUTE BARRED
A Court of law has no jurisdiction to entertain an action that is statute barred. See EMIATOR V. NIGERIAN ARMY (1999) 12 NWLR (Part 631) 158. In the instant case the lower Court held that the action is statute barred. See Pages 15 ? 16 of the Record; it however proceeded to consider the substantive action. It is important to note that the lower Court had no jurisdiction to proceed with the substantive action having found that the action was caught by the provision of Section 285 (9) of the 1999 Constitution (as amended). PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal germinated from the Judgment of the Federal High Court, Yola Division delivered on 6th March, 2019 by A. M. Anka J. The 1st Respondent at the lower Court commenced his suit via an Originating Summons asking the lower Court amongst others 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) & (ii) of the Electoral Act, 2010 (As amended) and that it was unlawful for the Appellant to have recognized and forwarded the name of the 2nd Respondent to the 3rd Respondent as its candidate for the 2019 general elections into Yola North/Yola South/Girei Federal Constituency of Adamawa State. Furthermore, that the Trial Court should declare as inclusive the primary election held on the 7th of October, 2018; it should also set aside the nomination of the 2nd Respondent by the Appellant and restrain the 3rd Respondent from recognizing or dealing with the 2nd Respondent as the candidate of the Appellant in the
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general election as contained in pages 2-147 of the Record of Proceedings.
In response/opposition to the said Originating Summons and in compliance with the Rules of the lower Court, the herein Appellant filed amongst other Court processes, a Motion on Notice dated the 14th day of January, 2019 but filed 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 the following grounds:
i) The issues border on the internal and domestic affairs of a political party
ii) The issues raised political questions for which the Court cannot interfere in or adjudicate upon.
iii) The issues border on selection and or nomination of the candidate of the 1st Defendant (the herein appellant) for the 2019 General elections into Yola North, Yola South, Girei Federal Constituency of Adamawa State which is within the exclusive preserve of the 1st Defendant (the herein Appellant)
iv) Courts have no jurisdiction to determine who a political party should sponsor or nominate to contest elective position or offices.
?v) The power of Court is limited to the award of
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damages simpliciter and does not include the jurisdiction for the declaration of the Plaintiff as the candidate of the 1st Defendant in relation to the office of a member representing Yola North, Yola South, Girei Federal Constituency of Adamawa State.
vi) The Plaintiff failed to exhaust the internal conflict resolution mechanism of the 1st Defendant as prescribed in its Constitution for dispute resolution before instituting the instant action.
vii) The Plaintiff has no reasonable cause of action against the 1st Defendant.
That the issues giving rise to the instant suit (the 1st Respondent?s suit at the lower Court) took place in Adamawa State where there exists a Division of the Federal High Court.
That the choice of the Plaintiff to choose to file his suit in Abuja amounts to forum shopping.
The Appellant also filed its Counter Affidavit and Written Address in opposition to the 1st Respondent?s Originating Summons.
In response to the Motion on Notice challenging the jurisdiction of the Court and the Appellant?s Counter Affidavit, the 1st Respondent (the Plaintiff at the lower Court) filed a counter affidavit
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and written in opposition to the said Motion and thereafter filed a Further Affidavit and written address on point of law in support of his originating summons. See pages 207-272 of the Record of Proceedings.
That the lower Court on the 6th of March, 2019 delivered its judgment upholding the Preliminary Objection filed by the Appellant and dismissed the suit of the 1st Respondent, however, 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 being dissatisfied with the lower?s Court judgment in respect of the substantive suit has filed the instant appeal to this Honourable Court.
The Notice of Appeal was filed on the 8th day of March, 2019. The Appellant?s Brief of argument was filed on 9th April, 2019 in which six issues were formulated for determination:-
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? (Grounds 1 & 2).
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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 justiciable?(Ground 3).
ISSUE THREE
Whether the trial judge was right to have suo moto 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 moto? (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 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 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
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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 ofAPC V. KARFI (2018) 6 NWLR (Pt.1616) page 479 is in all fours with the 1st Respondent?s case at the lower Court? (Ground 7).
The Brief of argument of the 1st Respondent was filed on 24th April, 2019 in which seven issues were formulated for determination:-
i. 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 (Distilled from Grounds 1 & 2 of the Notice of Appeal)
ii. Whether the trial Court was right 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)<br< p=””
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iii. Whether the trial judge was right to have suo moto 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 moto
(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 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 grounds 6 of the Notice of Appeal)
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vi. Whether the learned trial judge was right to have held that the case of APC V. 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 first issue formulated by the Appellant in his Brief is:-
Whether the trial judge was right to have gone ahead to deliver judgment in the substantive suit after dismissing same on the ground that same is statute barred by virtue of Section 285 (9) of the 1999 Constitution, 4th Alteration. (Grounds 1 & 2) Counsel to the Appellant submitted that having held that the 1st Respondent?s Suit is statute barred and dismissing same, the trial judge was wrong to have gone ahead to hear the same suit and grant the reliefs sought. The court was referred to NASIR V CIVIL SERVICE COMMISSION KANO STATE & ORS. (2010) LPELR ? 1943 and OLAGUNJU & ANOR V. P.H.C.N. PLC (2011) LPELR-2556.
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Learned Counsel to the 1st Respondent submitted that a Court of law is allowed to give Judgment in alternative of the assumption that the first position might have been wrong. That a Court must pronounce on the merits of the case before it. The Court was referred to KATTO V CBN (1991) 9 NWLR 9 (Part 214) 126. 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 EMIATOR V. NIGERIAN ARMY (1999) 12 NWLR (Part 631) 158. In the instant case the lower Court held that the action is statute barred. See Pages 15 ? 16 of the Record; it however proceeded to consider the substantive action. It is important to note that the lower Court had no jurisdiction to proceed with the substantive action having found that the action was caught by the provision of Section 285 (9) of the 1999 Constitution (as amended). Issue 1 is therefore resolved in favour of the Appellant and against the Respondent.
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Having resolved issue 1, it will be an academic exercise considering the remaining issues in this Appeal. The Appeal succeeds on issue one alone. The Appeal is accordingly allowed. The Judgment of the lower Court in Suit No FHV/YL/CS/6/2019 is set aside. Parties should bear their costs of the Appeal.
CHIDI NWAOMA UWA, J.C.A.: I agree.
?JAMES SHEHU ABIRIYI, J.C.A.: I agree.
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Appearances:
Sule Shua’ibu, Esq.For Appellant(s)
Y. D. Dangana, Esq. with him, Idris Talle, Esq. for the 1st Respondent.
S. Atung, Esq. for the 2nd Respondent.
Ishaku Bala, Esq. for the 3rd Respondent
For Respondent(s)
Appearances
Sule Shua’ibu, Esq.For Appellant
AND
Y. D. Dangana, Esq. with him, Idris Talle, Esq. for the 1st Respondent.
S. Atung, Esq. for the 2nd Respondent.
Ishaku Bala, Esq. for the 3rd RespondentFor Respondent
