BEDE CHUKWUEKEZIE v. ALL PROGRESSIVES GRAND ALLIANCE & ANOR
(2019)LCN/13033(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of April, 2019
CA/E/110/2019
RATIO
PRE-ELECTION MATTERS: A PARTY NOT SATISFIED WITH THE OUTCOMES OF PRIMARY ELECTION CAN APPROACH THE COURT TO SEEK REDRESS
Where a political party conducts its primaries to elect a candidate to be nominated for an election, anyone that participated in the primaries and is dissatisfied by the conduct or the outcome of the primaries or complains of noncompliance with the provisions of Electoral Act and the guidelines of the party has the right to approach the Court to seek redress for his grievances by virtue of Section 87(9) of the Electoral Act, 2010 (as amended) which provides that:
Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or of FCT, for redress.
See AL-HASSAN V. ISHAKU (2016) 10 NWLR (PT. 1520) AT 243 244 (12). OSUDE V. AZODO (2017) 15 NWLR (PT. 1588) 293.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
STATUTE BAR: WHEN AN ACTION IS STATUTE BARRED, THE COURT HAS NO JURISDICTION TO ENTERTAIN IT
Where an action is statute barred, the Court has no jurisdiction to entertain it. See ALHASSAN V. ALIYU& ORS. (2009) LPELR- 8340 AT 44 (B-G). ODUBEKO V. FOWLER & ANOR. (1993) LPELR 2235 (SC) AT 23-24 (FG). BAJOWA V. F. R. N & ORS. (2016) LPELR 40229 (CA) AT 11-12 (E-A) (2014) LPELR 23221 (SC). Where an action is statute barred, the proper order that should be made is a dismissal of the action because in such a situation the plaintiff loses his right to enforce his cause of action. See YAKUBU & ANOR. V. NITEL & ANOR. (2005) LPELR 11909 (CA) AT 31-32 (F-A). The Court below was right in dismissing the appellants claim.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
COURTS: WHETHER A COURT CAN DECIDE ON ISSUES NOT RAISED BY THE PARTIES
See OMOKUWAJO V. FRN (2013) LPELR – 20184 (SC) AT 37, 38 (GD), where the Supreme Court stated the exceptions to the rule as follows:
It is long settled that a judge would be wrong to decide on issues not raised by the parties, without giving the parties a hearing. See EZEANYA V. OKEKE1995 4 NWLR PT. 388 P. 142; ACB PLC V. LOSADA (NIG) LTD. 1995 7 NWLR PT. 405 P. 26; OJUKWU V. YAR’ADUA 2009 12 NWLR PT. 1154 P. 50; OYEWOLE V. AKANDE 2009 15 NWLR PT. 1163 P. 119. The need to give the parties a hearing when a judge raises an issue on his own motion or suo motu would not be necessary if:
(a) The issue relates to the Courts own jurisdiction.
(b) Both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision the judge is expected to take judicial notice. See Section 73 of the Evidence Act.
(c) When on the face of the record serious questions of the fairness of the proceedings is evident.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUSTICES:
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
BEDE CHUKWUEKEZIE – Appellant(s)
AND
1. ALL PROGRESSIVES GRAND ALLIANCE (APGA)
2. IND. NAT. ELECT. COMMISSION (INEC) – Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State delivered in suit no. HOR/36/2018 on 23/1/2019 by Honourable Justice C. O. Ajah sitting at the Orji-River Judicial Division of the Court.
By an originating summons filed on 5/11/2018, the appellant presented the following questions for determination by the Court below:
1. Whether the 1st defendant can lawfully conduct primary election without compliance with the provisions of Section 87 of the Electoral Act, 2010 (as amended), and the All Progressives Grand Alliance (APGA) Electoral Guidelines for the Primary Elections 2018?
2. Whether having regards to the provisions of the 1st defendans (APGA) Constitution, the Electoral Act, 2010 (as amended), the 1st defendant can withhold, withdraw or conceal a valid primary conducted and authenticated by both the partys electoral panel and 2nd defendant (INEC), without valid and lawful reasons?
3. If the answers to questions 1 and 2 above are in the negative, whether the purported withholding,
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withdrawal and cancellation of the valid mandate of the plaintiff is not invalid, null and void?
4. Whether the non-compliance with the provisions of Section 87(4) (b) (ii) of the Electoral Act, 2010 (as amended) and the All Progressives Grand Alliance (APGA) Electoral Guidelines 2018, Section 6(2), for the nomination of its governorship candidate for 2019 general elections constitute a violation of the plaintiffs right to be nominated as its governorship candidate as enshrined in Article 7(4) of the constitution of All Progressives Grand Alliance, 2014 (as amended)?
5. Whether having regards to the provisions of Section 6(6) (a) & (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), this Honourable Court cannot make a consequential order directing the 1st defendant to submit the name of the plaintiff to the 2nd defendant (INEC), in compliance with Section 87(4)(b)(ii) of the Electoral Act 2010(as amended) and section 6(2) All Progressives Grand Alliance (APGA) Electoral Guidelines 2018?
And if the answers to the questions above are resolved in favour of the plaintiff, the plaintiff claims
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the following reliefs:
A. A declaration that the 1st defendant has no powers in law in the nomination of the governorship candidate for the party (All Progressives Grand Alliance) in Enugu State without due compliance to the provisions of Section 87(4)(b)(ii) of the Electoral Act 2010 (as amended), the All Progressives Grand Alliance (APGA) Constitution 2014 (as amended) and the All Progressives Grand Alliance (APGA) Electoral Guidelines for conduct of primary election 2018.
B. A declaration that the noncompliance by the 1st defendant with Section 87(4)(b)(ii) of the Electoral Act, 2010 (as amended) and the All Progressives Grand Alliance (APGA) Electoral Guidelines for primary elections 2018 is invalid, null and void and of no effect.
C. An order of this Honourable Court mandating the 1st defendant to submit the name of the plaintiff to the 2nd defendant (INEC), in compliance with Section 87(4)(b)(ii) of the Electoral Act, 2010 (as amended) and the 1st defendants (APGA) Electoral Guidelines for Primary Elections 2018.
D. An order of this Honourable Court restraining the 2nd defendant from accepting any other name different from the
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plaintiff of the 1st Defendant as the governorship candidate for 2019 general election for noncompliance with the Electoral Act, 2010 (as amended).
E. An order of this Honourable Court restraining the 1st defendant from submitting another name different from the plaintiff, as the governorship candidate for the 2019 general elections.
The summons was supported by a 28 paragraph affidavit, a 20 paragraph further affidavit in response to the counter affidavit and the exhibits attached to both affidavits. The 1st respondent filed a 28 paragraph counter affidavit. Parties filed and exchanged written addresses. The Court in its considered judgment dismissed the suit for being filed outside the 14 days stipulated for filing a pre-election matter by Section 285(9) of the Constitution (as amended).
The appellant is aggrieved by the decision of the Court below. He filed a notice of appeal against the decision on 6/2/2019. The three grounds of appeal in the notice of appeal without their particulars are:
GROUND 1.
The trial Court erred in law when it assumed jurisdiction over the case of the plaintiff/appellant
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and delivered a default judgment in his favour and in the same breath, it held that it lacked jurisdiction to entertain the suit.
GROUND 2.
The trial Court (judge) erred when he failed to make pronouncements on all the issues formulated for determination by the plaintiff/appellant on the locus standi of the purported deponent of the 1st defendant.
GROUND 3.
The trial judge erred when he raised the constitutional issue of limitation of action suo motu and decided same without calling to be addressed on it by the parties.
The appellants brief was filed on 1/3/2019. The 1st respondents brief was filed on 20/3/2019. Appellants reply on points of law was filed on 28/3/2019. The 2nd respondent did not file any brief of argument and was not represented at the hearing of the appeal.
The appellant formulated the following issues for determination:
1. Whether the judgment of the lower Court which was solely based on Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 as amended by the 4th Alteration (No. 21) Act (2017) was not entered in total disregard of the provisions
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of Section 30 (1) and Section 87 (4) (b) (ii) of the Electoral Act, 2010 (as amended)?
2. Whether the learned trial judge did not misdirect himself when he failed to make pronouncements on all the issues formulated by the appellant (plaintiff) for determination on the locus standi of the purported deponent of the 1st defendant?
3. Whether the trial judge did not err in law, when he raised the constitutional issue of limitation of action suo motu and also decided same without calling to be addressed on it by the parties, since none of the parties raised it?
The 1st respondent adopted the three issues formulated by the appellant. He formulated a 4th issue. The issue is:
Whether the learned trial judge was right in law when he held that Order 2 (4) of the Enugu State High Court Rules applied but not Section 10 (1) of the Enugu State High Court Law in determining the territorial jurisdiction of the Orji-River High Court.?
I have considered the grounds of appeal and the issues distilled there from by the appellant and adopted by the 1st respondent. I am of the view that all the three issues formulated by the
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appellants counsel can be subsumed into one issue which is:
Whether the Court below was right when it held that the suit was filed outside the fourteen (14) days stipulated by Section 285 (9) of the Constitution (as amended).
The 4th issue formulated by the 1st respondents counsel does not arise from any of the grounds of appeal. It is hereby discountenanced.
The appellant’s counsel submitted that the case of the appellant is that he contested and won the primary election conducted by the 1st respondent but his name was not submitted to the 2nd respondent on 2/11/2018 being the dead line set by the 2nd respondent for the submissions of nomination of governorship candidates. It is the contention of the appellant that he had no right of action until there was a clear breach of his legal right by the non-submission of his name to the 2nd respondent on the date set as deadline for the submission of nomination. Counsel submitted that if the Court below had considered the provisions of Section 285 (9) of the Constitution (as amended) together with Section 30(1) and Section 87 (4) (b) (ii) of the Election Act, 2010 (as amended), the
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Court would have come to a different conclusion.
The appellant’s counsel also submitted that failure of the Court below to give the parties an opportunity of addressing the Court on the issue of limitation of action which was raised suo motu by the Court is a breach of the appellants right to fair hearing enshrined in the Constitution. He further submitted that any judgment or ruling based on a breach of the Constitution will not be allowed to stand. He referred to OBODO V. OLUMU (1987) 3 NWLR (PT. 59) 111 AT 121. SALAMI V. ODOGU (1991) 2 NWLR (PT.173) 291.
In response to the above submissions, the 1st respondents counsel submitted that the provision of Section 285(9) of the Constitution (as amended) is not subject to Sections 30(1) or 87(4) (b) (ii) of the Electoral Act (as amended). He further submitted that the desire of the appellant to calculate the 14 days stipulated by Section 285(9) of the Constitution (as amended) from the date of the publication of candidates names by the 2nd respondent is preposterous. Counsel argued that the appellant having stated in paragraph 25 of his affidavit in support of the summons
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that the 1st respondent refused to give him a certificate of return on 5/10/2018 when the alleged primary of the 1st respondent was conducted and the 1st respondent refused to forward his name to the 2nd respondent, the 14 days period stipulated for filing a pre-election matter under 285(9) of the Constitution started counting from that day since that was the time the appellants complaint arose.
Counsel submitted that the Court below having found that the cause of action had been lost by virtue of Section 285(9) of the Constitution, there was no need to go into any other issue including the issue of the locus standi of the deponent of the 1st respondents counter affidavit.
On the failure of the Court below to give the parties an opportunity of addressing the Court on the provisions of Section 285(9) of the Constitution, counsel submitted that the Court can raise an issue of jurisdiction suo motu and decide same without calling on the parties for address. He referred toOMOKUWAJO V. FRN (2013) LRCN (PT. 2) 166 AT 198.
In reply to the above submissions of the 1st respondents counsel, the appellants counsel submitted
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that the appellants claim and prayers in the Court below centered on the non-submission of the appellants name to the 2nd respondent in line with the provisions of Section 87(4)(b)(ii) of the Electoral Act, 2010 (as amended). He further submitted that the appellants claim crystallized into an enforceable legal right on 2/11/2018 when his name was not published by the 2nd respondent.
RESOLUTION:
Where a political party conducts its primaries to elect a candidate to be nominated for an election, anyone that participated in the primaries and is dissatisfied by the conduct or the outcome of the primaries or complains of noncompliance with the provisions of Electoral Act and the guidelines of the party has the right to approach the Court to seek redress for his grievances by virtue of Section 87(9) of the Electoral Act, 2010 (as amended) which provides that:
Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political
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party for election, may apply to the Federal High Court or the High Court of a State or of FCT, for redress.
See AL-HASSAN V. ISHAKU (2016) 10 NWLR (PT. 1520) AT 243 244 (12). OSUDE V. AZODO (2017) 15 NWLR (PT. 1588) 293. In the instant case, the complaint of the appellant was that the provisions of Section 87(4)(b)(ii) was not complied with. That Section of the Electoral Act provides that:
(4) A political party that adopts the system of indirect primaries for the choice of its candidates shall adopt the procedure outlined below:
(b) In the case of nomination to the positions of Governorship candidate, a political party shall, where it intends to sponsor candidates:
(i) Hold a special congress in the State Capital with delegates voting for each of the aspirants at the congress to be held on a specified date appointed by the National Executive Committee (NEC) of the party; and
(ii) The aspirant with the highest number of votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirants name shall be forwarded to the Commission as the candidate of the party, for the particular State.
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By virtue of Section 285(14) (a) of the Constitution of the Federal Republic of Nigeria (as amended) by the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No. 21) Act, 2017, the appellants claim is a pre-election matter. That Section of the Constitution provides that:
For the purpose of this section, pre-election matter means any suit by-
(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election.
Section 285(9) of the Constitution of the Federal Republic of Nigeria (as amended) provides that:
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.
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The words used in Section 285(9) and (14) (a) of the Constitution (as amended) are very clear and unambiguous. Every pre-election matter must be filed in Court within 14 days from the date of the occurrence of the event, decision or action complained of. In the instant case, the appellant deposed in paragraphs 11, 12, 19, 26 of the affidavit in support of the summons that:
11. That I am an aspirant to the office of Governor of Enugu State under the platform of the 1st defendant (APGA).
12. That by the provisions of Section 87 of the Electoral Act 2010 (as amended), all aspirants for any particular public office must partake in primary elections for the purpose of selecting the candidate of the party. And the candidate that scores the highest number of votes at the end of the primary election shall be declared the winner and shall have his name submitted to INEC as candidate of the party.
19. That the Governorship primaries was held on the 5th October, 2018, at Dragon Hall, 82 Division, Enugu, Enugu State.
20. That the primary was conducted by a panel constituted by the 1st defendant, led by Engr. Sule
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Ajayi, National Vice Chairman North Central, as the returning officer. Official list of panel is hereby Exhibited and marked as Exhibit G.
21. That the primary was observed and monitored by the 2nd defendant (INEC). Report of the 2nd defendants monitoring is hereto annexed and marked as Exhibit H.
22. That after the accreditation, the voting procedure followed the open ballot system. Sorting, counting and declaration of the result of the election took place.
23. That I scored 45 votes to defeat my opponent, who scored 1 (one) vote.
24. That I, Bede Chukwuekezie was returned elected as the 1st defendants (APGA) Flag bearer for 2019 Governorship Election for Enugu State.
25. That surprisingly the 1st defendant refused to give me the certificate of return and forward by name to the 2nd defendant as the governorship candidate flag bearer of the 1st defendant in the general elections hence this action.
26. That by the 2nd defendants electoral guidelines all successful candidates names must be submitted to the 2nd defendants office latest on the 2nd day of November, 2018 and all substitutions or
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changes must be concluded on or before the 1st day of December 2018. See the guideline Marked as Exhibit I.
The 1st respondent denied all the above depositions. The law is that the issue of whether an action is statute barred is determined by looking at the writ of summons and the statement of claim to see when the alleged wrong was committed. In other words, the Court looks at the writ of summons and statement of claim to determine when the cause of action accrued and time started to run for purposes of limitation of action. Where the suit is commenced by originating summons as in the instant case, the Court will look at the reliefs being sought as endorsed on the originating summons and the facts deposed to in the affidavit in support to determine whether the suit is statute barred.
The questions presented for determination and the reliefs sought centered on non-compliance with the provisions of Section 87(4) (b) (ii) of the Electoral Act. According to the appellant, the alleged primary of the 1st respondent was conducted on 5/10/2018, he scored the highest votes at the end of the primary election and was returned elected as the
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1st defendants flag bearer for 2019 gubernatorial election but the 1st respondent refused to give him a certificate of return and forward his name to the 2nd respondent. The Court below considered the affidavit in support of the originating summons particularly paragraph 25 thereof, the Court at pages 266-267 found that:
The purported primary election according to the plaintiff took place on 5th October, 2018. The screening and issuance of the Certificate of Return to the only qualified candidate, Mr. Emma Nwankpa, took place on the 5th October, 2018 according to the 1st defendant. The whole event being challenged by the plaintiff and which forms the basis of this action (See paragraph 25 of the supporting affidavit and paragraphs 6 and 20 of the counter affidavit of the 1st defendant) all took place on the 5th October, 2018. This is based on the evidence before the Court as put forward by the parties. From the processes filed by the plaintiff in this suit (that is the originating summons, the supporting affidavit, the annexures and the written address by the plaintiffs counsel) were filed on the 5th November 2018. That is 31 days after
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the events complained of by the plaintiff, the alleged primary and issuance of Certificate of Return to Mr. Emma Nwankpa. From the date the Cause of action occurred to the date of filing the suit is 31 days.
The appellants contention that the cause of action accrued on 2/11/2018 being the deadline for the submission of names of candidates does not hold water. His grievances and complaints emanated from the alleged primary of the 1st respondent and refusal to give him a certificate of return on 5/10/2018 when he allegedly won the primary. The 2nd respondents time table for 2019 general elections being relied on by the appellant is not helpful to him because it is clear that the deadline for the conduct of primary election including resolution of disputes arising from the primaries was 7/10/2018. 2/11/2018 was the deadline for submission of forms CF 001 and CF002 at the Headquarters of the 2nd respondent. It is not the contention of the appellant that he was issued those forms. The provisions of Section 285 (14) (a) of the Constitution of the Federal Republic of Nigeria (as amended) by the Constitution of the Federal Republic of Nigeria
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1999 (Fourth Alteration, No. 21) Act, 2017, are very clear and unambiguous. The appellant ought to have approached the Court to seek redress for his complaint of non-compliance with the provisions of Electoral Act within 14 days of the non-compliance which according to him occurred on 5/10/2018. The law is settled that an action which is brought after by the period stipulated by the law, in the instant case, the Constitution, is statute barred. Where an action is statute barred, the Court has no jurisdiction to entertain it. See ALHASSAN V. ALIYU& ORS. (2009) LPELR- 8340 AT 44 (B-G). ODUBEKO V. FOWLER & ANOR. (1993) LPELR 2235 (SC) AT 23-24 (FG). BAJOWA V. F. R. N & ORS. (2016) LPELR 40229 (CA) AT 11-12 (E-A) (2014) LPELR 23221 (SC). Where an action is statute barred, the proper order that should be made is a dismissal of the action because in such a situation the plaintiff loses his right to enforce his cause of action. See YAKUBU & ANOR. V. NITEL & ANOR. (2005) LPELR 11909 (CA) AT 31-32 (F-A). The Court below was right in dismissing the appellants claim.
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The appellant contended that the failure of the Court below to recall the parties for address on provisions of Section 285 (9) and (14) (a) of the Constitution of the Federal Republic of Nigeria (as amended) and limitation of action is a breach of fair hearing. The law is trite that a Court has the power and the right to raise an issue suo motu and in fact is bound to do so where it is patently clear that the Court has no jurisdiction to adjudicate on the matter before it. It is also settled that where the Court raises an issue suo motu, the Court is enjoined to give the parties an opportunity of being heard on the issue especially the party that is likely to be adversely affected by the decision of the Court so as to avoid a breach of the right to fair hearing enshrined in the Constitution. However, there are exceptions to the general rule. One of such exceptions is where it is patently clear on the face of the processes before the Court that the Court has no jurisdiction to adjudicate on the matter. Another exception is where the issue is one that ought to be judicially noticed by the Court. See OMOKUWAJO V. FRN (2013) LPELR – 20184 (SC) AT 37, 38 (GD), where the Supreme Court stated the exceptions to the rule as follows:
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It is long settled that a judge would be wrong to decide on issues not raised by the parties, without giving the parties a hearing. See EZEANYA V. OKEKE1995 4 NWLR PT. 388 P. 142; ACB PLC V. LOSADA (NIG) LTD. 1995 7 NWLR PT. 405 P. 26; OJUKWU V. YAR’ADUA 2009 12 NWLR PT. 1154 P. 50; OYEWOLE V. AKANDE 2009 15 NWLR PT. 1163 P. 119. The need to give the parties a hearing when a judge raises an issue on his own motion or suo motu would not be necessary if:
(a) The issue relates to the Courts own jurisdiction.
(b) Both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision the judge is expected to take judicial notice. See Section 73 of the Evidence Act.
(c) When on the face of the record serious questions of the fairness of the proceedings is evident.
The instant case, falls squarely under exceptions (a) and (b) stated in OMOKUWAJOs case. The Court below was bound to take judicial notice of the provisions of Section 285 (9) and (14) (a) of the Constitution (as amended).
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See ALIMS NIG. LTD. V. U.B.A (2013) LPELR 19768 (SC) AT 13, where the Supreme Court per Fabiyi, JSC held that:
It is now clear that the issue of jurisdiction is a threshold one which can be taken at any stage of the proceedings; even before the apex Court for the first time. It can be raised by any of the parties or by the Court suo motu. Where there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction, the judex has the duty to raise it suo motu, if the parties fail to draw the attention of the Court to it. In such a situation where the judex raises it suo motu, it is proper to invite the address of both counsel before deciding one way or the other. However, failure of the Court to so invite the address of counsel, does not, ipso facto, render such a decision is incorrect or occasioned a miscarriage of justice. See OLUTOLA V. UNIVERSITY OF ILORIN (SUPRA), KATTO V. CBN (SUPRA), IMAH V. OKOGBE (SUPRA), EJOWHOMU V. EDOK-ETER MANDILAS (1986) 5 NWLR (PT. 39) 1.
And at 24-25, the Court per Odili, JSC held thus:
From my point of view what I see is whether or not
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the Court of trial was right suo motu without an address of counsel on either side, to have declined jurisdiction. The follow up question being, having declined the jurisdiction to entertain the appellants action was the effect fatal? To tackle these questions, it needs be said even though no longer a new point, that jurisdiction of a Court to entertain a matter before it is fundamental and being so important can be raised at any stage of the adjudication including the Supreme Court. To underscore its radical, crucial nature it could be brought up by any of the parties in the suit or by the Court itself. However, wisdom and the transparency of justice administration call for the Court where it finds that jurisdiction or competence of Court has arisen should bring the parties in to hear from them on the matter. This invitation to counsel on either side to address Court would be done before the Court reaches a decision one way or the other. However, since the administration of justice is not static, the fact that the Court has a duty to call on the counsel on either side to address it on the issue of jurisdiction or the lack of it, the absence of the
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invitation would not without more vitiate the decision of the Court that it has no jurisdiction so long as it cannot be said that by doing what the Court did, there has been a miscarriage of justice. Stated differently, it is that where the issue is raised by the Court suo motu without hearing from the parties, the decision is not automatically a nullity or vitiated. It is only a nullity if the decision is shown to be wrong and or occasioned a miscarriage of justice.
The decision of the Court below has been shown to be correct and it has not been shown that the decision has occasioned a miscarriage of justice.
Even if the decision that the suit is statute barred is incorrect, the case of the appellant would still have failed on merit as the law is settled that he who asserts must prove. The burden of proving that a primary election was conducted and that he scored highest number of votes cast at the election was on the appellant. See TAZOOR V. IORAER (2016) 3 NWLR (PT. 1500) 463 AT 515 516 (GC). UFOMBA V INEC (2017) 13 NWLR (PT. 1582) 175 AT 209,210 (GA).
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The appellant failed woefully to prove that he participated in any primary election or that he scored the highest votes in the election. In the 1st respondents Electoral Guidelines for Primary Elections, 2018, Exhibit C, paragraph 28(11), it is stated that The Result Sheets of the primary election shall be signed by the Chairman and Secretary of the Special State Congress Electoral Panel, otherwise it shall be deemed invalid unless subsequently approved by the National Working Committee of the parties. Paragraph 28 (12) stated that the Chairman of the Special State Congress Electoral Panel, as the Chief Returning Officer, shall ensure that copies of the duly completed and signed Result Sheets are given to the aspirants or their agents. The appellant did not produce any result sheet to show that he participated in any primary election and that he scored 45 votes and the other contestant scored 1 vote as alleged by him. The appellant also stated that the 2nd respondent observed the primary election and wrote a report. The alleged report of the 2nd respondent is attached to the affidavit in support of the summons as Exhibit H. There is no doubt that the report is a public document
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and the only secondary evidence of it that is admissible is a properly certified true copy and no other. There is nothing on the face of Exhibit H to show that it emanated from the 2nd respondent. It is not certified as required by Section 104 and of the Evidence Act. A complainant under Section 87(9) of the Electoral Act, 2010 (as amended) must place legally admissible and credible evidence before the Court to show that he has a genuine complaint cognizable by the Court under the provisions of Section 87(9) of the Electoral Act, 2010 (as amended) which the appellant woefully failed to do. The appellant failed to show that he was an aspirant who participated in the primary election conducted by the 1st respondent on 5/10/2018 and that he scored the highest votes. Thus, even on merit, the appellants claim must fail and that reinforces my view that failure of the Court below to invite the parties for address on the issue of limitation of action has not occasioned a miscarriage of justice.
The appellant also contended that the Court below erred when it failed to consider the issue of the locus standi of the deponent of the 1st respondents
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counter affidavit. Generally, a Court has the duty to consider all the issues raised by the parties in a case. However, where the Court finds that it has no jurisdiction to entertain the case by virtue of its being statute barred, it has no duty to consider the merit of the case. A consideration of the merit of an action that is statute barred is an exercise in futility. The Court below had no business considering the locus standi of a deponent of an affidavit when it has been found that the action is statute barred.
In conclusion, I find that this appeal has no merit. The judgment of the High Court of Enugu State delivered in suit no. HOR/36/2018 on 23/1/2019 by Honourable Justice C. O. Ajah sitting at the Orji-River Judicial Division of the Court is hereby affirmed. The appeal is hereby dismissed. Parties shall bear their own costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the Lead Judgment of my Learned Brother M. O. BOLAJI-YUSUFF, JCA and I agree completely with his reasoning and conclusion on all the issues raised and determined that this Appeal lacks merit. There is no doubt that by virtue of
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Section 285(9) and 14(a) of the Constitution of the Federal Republic of Nigeria (as amended) which provisions are very clear and unambiguous, the suit culminating in this Appeal is a pre-election matter which ought to have been filed within 14 days from the date of the accrual of cause of action complained of by the Appellant. In the instant case the cause of action having accrued on the 5th of October, 2018 when the 1st Respondent refused to forward the Appellant’s name to the 2nd Respondent as the 1st Respondent’s nominated candidate and it was not until 31 days later that Appellant filed the Suit now on Appeal, his claim as was rightly decided by the Learned Trial Judge was statute barred.
The authorities of Bajowa v. F.R.N. & Ors (2016) LPELR- 40229 (CA) at 11- 12 (E – A) (2014) LPELR-23221 (SC) and Yakubu & Anon V. NITEL & ANOR. (2005) LPELR – 11909 (CA) at 31-32 paras. F – A ably cited by my Lord are very instructive.
I totally agree with My Lord that the Court below was right to have dismissed the Claim of the Appellant for want of jurisdiction since his claim was Statute barred.
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For the above reason and the fuller reasons advanced by My Learned Brother in the Lead Judgment, I also dismiss this Appeal and abide by all the consequential orders as made by him.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUF, JCA and I totally endorse the reasoning and conclusion therein.
Jurisdiction is the life essence of adjudication, without it any exercise of judicial power is devoid of any legal validity. For the more detailed reasoning in the lead judgment, I shall equally dismiss this appeal.
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Appearances:
T. O. Chukwu For Appellant(s)
V. C. Odo with him, Mike Okechukwu and A. A. Omoniyi for the 1st Respondent.
No appearance for the 2nd respondent For Respondent(s)
Appearances
T. O. Chukwu For Appellant
AND
V. C. Odo with him, Mike Okechukwu and A. A. Omoniyi for the 1st Respondent.
No appearance for the 2nd respondent For Respondent
