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DALHATU M. SAKI v. ALL PROGRESSIVE CONGRESS & ORS (2019)

DALHATU M. SAKI v. ALL PROGRESSIVE CONGRESS & ORS

(2019)LCN/13303(CA)

In The Court of Appeal of Nigeria

On Monday, the 20th day of May, 2019

CA/A/292/2019

 

JUSTICES

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

DALHATU M. SAKI Appellant(s)

AND

1. ALL PROGRESSIVE CONGRESS (APC)
2. OSENI YAKUBU
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

RATIO

DEFINITION OF “A CAUSE OF ACTION”

A cause of action is an entire set of facts or circumstances giving rise to an enforceable right recognizable by law. It is the factual situation on which the Plaintiff relies upon to support the remedy he seeks from Court. The law is settled that, it is the cause of action, as determined by the Plaintiff’s Originating Processes and Statement of Claim or depositions in the affidavit, as the case may be, that is relevant for the determination of whether a suit is statute barred – see Tukur v. Gongola State (1989) 4 NWLR (Pt. 766) 272, Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 119 at 155, Umanah v. Attah (2007) All FWLR (Pt. 346) 4 402 at 434. In Asaboro v. Pan Ocean Oil Corp. Nig. Limited (2017) 7 NWLR (Pt. 1563) – at p 42, Peter – Odili JSC explained succinctly thus:
“To determine whether an action is statute barred, the Court examines the originating process, statement of claim, together with the evidence on record where that has taken place, to know when the wrong in question occurred and compare it with the dates the originating processes were filed.”
In order to determine when the cause of action arises or accrues therefore the Courts, will look at the Plaintiff’s pleadings to examine when the wrong complained took place and compare it with when the date the action was filed. An action is statute barred if it is instituted after the period prescribed by the statute within which such an action can be commenced or filed. No Court has jurisdiction to entertain an action that is found to be statute barred- Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1, Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649.  PER AKOMOLAFE-WILSON, J.C.A. 

CONDITIONS THAT MUST EXIST FOR SECTION 15 OF THE COURT OF APPEAL ACT TO APPLY

On issue 2, I have considered the submissions of the Appellant and the 1st, 2nd and 3rd Respondents on whether the Court of appeal, in the circumstances of this case can invoke its power under Section 15 of the Court of Appeal Act, to assume jurisdiction to determine the merits of the suit filed before the trial Court. There are conditions that must exist for Section 15 of the Court of Appeal Act to apply. These are: (a). That the High Court or trial Court had the legal power to adjudicate the matter before the appellate Court entertained it; (b). That the real issue raised by the claim of the appellant at the High Court or trial Court must be capable of being distilled from the grounds of appeal; (c). That all necessary materials must be available to the Court for consideration; (d). That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and (e). That injustice or hardship will follow if the case is remitted to the Court below.
All the conditions stated above must be met before the Court of Appeal can exercise its power. See Obi v. INEC (2007) vol. 9 JSC. 1, Okoronkwo v. FRN (2014) 11 WRN 127 at 151 -152. The essence of Section 15 of the Court of Appeal Act, is for this Court to assume jurisdiction and act as if it were the Court of first instance to determine the suit filed in the trial Court. One of the essential conditions for the invocation and assumption of original jurisdiction is that the lower Court or trial Court from which the appeal arose has the jurisdiction to entertain the suit. In this appeal, I have held that the lower Court was devoid of the jurisdiction to entertain the matter because the action is statute barred. Once an action is statute barred, it is dead for all purposes. It can never be revived. The Statute of Limitation removes the right of claim and leaves the Plaintiff with a bare action which he cannot enforce. See Eboigbe v. NNPC (Supra) Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637. The apex Court in A- G, Adamawa State & 2 Ors. v. AG of the Federation (2014) LPELR – 23221 (SC) at page 3435 encapsulated the legal implication of an action that is statute barred where Peter ? Odili JSC stated that:
Where a party?s action is statute barred the following legal consequences will follow: –
“a. The party would lose his right of action;
b. The party would lose the right of enforcement;
c. The party would also irretrievably lose the right to judicial relief;
d. The party would only have an empty cause of action which no court will assist him to enforce.
See alsoDaudu v. University of Agriculture, Makurdi & 4 ors. (2002) 17 NWLR (Pt. 796) 363 at pages 384 -385.” per PETER ODILI, JSC (pages 34 – 35, paras F – A). PER AKOMOLAFE-WILSON, J.C.A. 

WHETHER OR NOT EACH CASE MUST BE CONSIDERED AND DETERMINED ON ITS OWN PECULIAR FACTS AND CIRCUMSTANCES

It is trite law that each case must be considered and be determined on its own peculiar facts and circumstances. The facts in Appeal CA/A/292/2019, confirmed by Appeal No. SC222/2019 though similar to the appeal at hand is not identical.
The facts and circumstances are not on all fours with the one at hand. It cannot therefore be made applicable to bind this Court mutantis mantandi. In other words, it cannot blindly be made a precedent to be followed by this Court. See Paul Onyia v. The State (2008) LPELR – 2743 (SC) pages 19 – 20, Williams v. Rising Voluntary Funds Society (1982) 1 All NLR (Pt. 1), Skye Bank Plc & Anor v. Chief Akinpelu (2010) LPELR – 3073 (SC) 40 (2010) 9 NWLR (Pt. 1198) 179, APC v. INEC (2015) 8 NWLR (Pt. 1462) 531 at 583 Nig. Agip Oil Coy. Limited v. Nkweke (2016) 7 NWLR (Pt 1512) 588 at 624. PER AKOMOLAFE-WILSON, J.C.A. 

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering  the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Abuja Division, delivered by Hon. Justice A. R. Mohammed on 13th of March, 2019 whereby the suit filed by the Appellant was struck out for want of jurisdiction.

The Appellant dissatisfied with the decision of the trial Judge filed a Notice of Appeal to this Court on 22nd March, 2019, containing two grounds. The Appellant by an Originating Summons filed on 30th of October, 2018 posed three questions for determination namely:
i. “Whether in view of Section 87 of the Electoral Act, 2010 (as amended) and having regard to the provisions of Article 20 of the Constitution of the All Progressive Congress, the APC Guidelines for nomination of candidates for the 2019 General Elections 2019 – Indirect Primaries relating to conduct of APC Primaries and the upholding of his petition by the Appeal Committee of the 1st Defendant, it is lawful for the 1st Defendant to recognize and forward the name of any person other than the Plaintiff as its candidate for Kogi Central Senatorial District.

ii. Whether

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in view of Section 87 of the Electoral Act, 2010 (as amended) and having regard to the provisions of Article 20 of the Constitution of the All Progressive Congress, the Guidelines for nomination of candidates for the 2019 General Elections 2019 ? Indirect Primaries relating to conduct of APC Primaries and the upholding of his petition by the Appeal Committee of the 1st Defendant, it is lawful for the 1st Defendant to change the result of the Primaries Election it conducted for Kogi Central Senatorial District in which the Plaintiff emerge winner and was so declared by the Appeal Committee of the 1st Defendant.
iii. Whether having regard to the provisions of Section 87 of the Electoral Act, 2010 (as amended) the 1st Defendant is not under a mandatory duty to forward the name of the Plaintiff as its candidate for Kogi Central Senatorial District to the 3rd Defendant and the 3rd Defendant under a duty to accord him recognition as candidate for the election into Kogi Central Senatorial District.
He sought for the following reliefs:
1. A DECLARATION that it is not lawful for the 1st Defendant to recognize and forward the name of any

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candidate other than the Plaintiff to the 3rd Defendant as its candidate for Kogi Central Senatorial District.
2. A DECLARATION that is not lawful for the 1st Defendant to change the result of the primary election it conducted for Kogi Central Senatorial District in which the Plaintiff emerged winner and was so declared by the Appeal Committee of the 1st Defendant.
3. A DECLARATION that any name of candidate submitted by the 1st Defendant to the 3rd Defendant not being the name of the Plaintiff for Kogi Central Senatorial District is unlawful, null and void
4. An ORDER of mandatory injunction directing the 1st Defendant to submit the name of the Plaintiff to the 3rd Defendant as its candidate for Kogi Central Senatorial District
5. AN ORDER of mandatory injunction directing the 3rd Defendant to accept and treat the Plaintiff as the candidate of the 1st Defendant for Kogi Central Senatorial District at the 2019 General Elections.
6. AN ORDER of mandatory injunction compelling the 3rd Defendant to recognize and treat the Plaintiff as the candidates of the 1st Defendant for Kogi Central Senatorial District for the 2019

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Genera/Elections.
7. AN ORDER of injunction restraining the 2nd Defendant from parading himself as the candidate of the 1st Defendant for Kogi Central Senatorial District for the 2019 General Elections.

The Originating Summons was supported by a 19 paragraphed affidavit and a Further Affidavit of 5 paragraphs (pages 7 – 9 and 38 4 of the record of appeal). The summary of the Appellant’s case is that he participated in the primary election conducted by the 1st Respondent for Central Senatorial District held on 3rd October, 2018, and he emerged as the winner with 937 votes. He was however surprised to discover that the name of the 2nd Respondent who scored the 2nd highest number of votes was submitted to the 3rd Respondent as the candidate of the 1st Respondent on 18th October, 2018, despite the fact that he petitioned the 1st Respondent’s Election the Appeal Committee on 8th of October, 2018 which upheld his petition and declared him the winner of the primary election.

All the Respondents challenged the jurisdiction of the Court which was upheld by the trial Court, and the suit was struck out, hence this appeal.

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Parties exchanged briefs of argument which were adopted on the 7th of May, 2019. The Appellant in his unpagenated brief of argument, distilled two issues for determination which were adopted by all the Respondents’, namely:
1. “Whether the trial Court was right when it held that the cause of action of Appellant occurred on 3rd October, 2018 instead of 18th October, 2018 when the name of 2nd respondent other than that of the Appellant was forwarded by the 1st Respondent to the 3rd Respondents (Ground 1).
2. Whether having regard to the provisions of Section 285 (8) of the Constitution of Nigeria 1999 (Fourth Alteration Act, 2017) (as amended), the learned trial judge was not under a duty to pronounce on the originating summons dully argued by the parties despite finding that he has no jurisdiction on the matter (Ground 2).

?The contention of the Appellant on issue one, and upon which this appeal revolves is that his cause of action accrued on the 18th of October when the 1st Respondent forwarded the name of the 2nd Respondent to the 3rd Respondent as candidate who won the primary election held on 3rd October, 2018 and therefore, his action was filed

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within time and does not contravene Section 285 (9) of the 1999 Constitution (as amended) by Fourth Alteration Act, No. 21 of 2017. He cited several cases to explain when “a cause of action arises.”
“There is no doubt that a cause of action arises on a date or from the time when a breach of any duty or an act occurs which warrants the persons who is injured or the victim who is adversely affected by such breach to take a Court action to assert or protect his legal right that has been breached or violate.”
A.G Adamawa & Ors v. A. G. Federation (2014) LPELR – 23221 (SC) page 52 paras. A-C; PHCN v. Ayodele & Anor (2018) LPELR 44537 (AC) Page 25 -29 paras. A-B; Capital Bancorp Limited v. S. S. L. Ltd (2007) 3 NWLR (Pt. 1020) at 148 and Goodwill Company Limited v. Calabar Cement Company Limited (In Liquidation) & Ors. (2009) LPELR 8351 (AC) pages 23 – 24 paras C-A.

On issue 2, it was submitted that the trial judge is mandated by Section 285 (8) of the 1999 Constitution (as amended) to pronounce on both the preliminary objection and the substantive case at the stage of final judgment. He therefore urged us, having regard to

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the time limitation on determination of pre-election disputes, to exercise the powers donated by Section 15 of the Court of Appeal Act, to assume full jurisdiction over the whole proceedings as if the suit was instituted in this Court to decide the matter, citing Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60 at 121. He further submitted that the Respondents having not filed a counter- affidavit to the Further Affidavit (page 384 of the record of appeal) in support of the Originating Summons, the fact therein are deemed admitted – Lau v PDP (supra) at 118, Ejide v. Ogunyemi (1990) 3 NWLR (Pt. 141) 758. Concluding, he submitted that by the Supreme Court decision of Olugbemi v. Lawrence (2017) 16 NWLR (Pt. 1591) 209 at 246 – 247. He further submitted that it is mandatory that the 1st Respondent forward to the 3rd Respondent the name of the Appellant as its candidate for Kogi Central Senatorial District.
?
In response to issue one, the 1st, 2nd and 3rd Respondents, in their respective briefs of argument submitted that by the Appellant’s own pleadings and the relief sought, this appeal stems from the results of the primary election held on the 3rd of

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October, 2018 wherein the Appellant claimed to have scored the highest votes and was declared the winner. The cause of action, they argued accrued on 3rd of October, 2018. The Appellant, having filed his action on 30th October, 2018, 27 days after the declaration of the results, the action is statute barred having regard to the provisions of Section 285 (9) of the 1999 Constitution (as amended) by Fourth Alteration No. 21 Act of 2017.

On issue 2, it was argued by all the Respondents that the Court of Appeal can only exercise its power under Section 15 of the Court of Appeal Act, only if the trial Court has the jurisdiction to entertain the suit. This Court was urged to dismiss this appeal.
?
I have perused the record of appeal and have considered the arguments submitted by the parties in this appeal. There is no disputation as to the fact that this is a pre-election matter. It is also not contested that the primary election of the 1st Respondent for the nomination of the candidate to represent the Kogi Central Senatorial District of Kogi State in the general elections was held on the 3rd of October, 2018 that the name of the 2nd Respondent was

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forwarded by the 1st Respondent to 3rd Respondent on October 18, 2018 and that the Appellant filed this action contesting the results of that election on the 30th of October, 2019. The dispute in this appeal is predicated on when the cause of action arose so as to determine whether or not this action was statute barred having regards the provisions of Section 285 (9) of the Constitution of the Federal Republic of Nigeria, (as amended) by the Fourth Alteration Act, No. 21 of 2017.
A cause of action is an entire set of facts or circumstances giving rise to an enforceable right recognizable by law. It is the factual situation on which the Plaintiff relies upon to support the remedy he seeks from Court. The law is settled that, it is the cause of action, as determined by the Plaintiff’s Originating Processes and Statement of Claim or depositions in the affidavit, as the case may be, that is relevant for the determination of whether a suit is statute barred – see Tukur v. Gongola State (1989) 4 NWLR (Pt. 766) 272, Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 119 at 155, Umanah v. Attah (2007) All FWLR (Pt. 346) 4 402 at 434.

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In Asaboro v. Pan Ocean Oil Corp. Nig. Limited (2017) 7 NWLR (Pt. 1563) – at p 42, Peter – Odili JSC explained succinctly thus:
“To determine whether an action is statute barred, the Court examines the originating process, statement of claim, together with the evidence on record where that has taken place, to know when the wrong in question occurred and compare it with the dates the originating processes were filed.”
In order to determine when the cause of action arises or accrues therefore the Courts, will look at the Plaintiff’s pleadings to examine when the wrong complained took place and compare it with when the date the action was filed. An action is statute barred if it is instituted after the period prescribed by the statute within which such an action can be commenced or filed. No Court has jurisdiction to entertain an action that is found to be statute barred- Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1, Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649.
The relevant statute in this appeal is Section 285 (9) of the Constitution. The Constitution of the Federal Republic of Nigeria, 1999, as amended by the Fourth Alteration Act, No. 21, 2017 which

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prescribed 14 statutory days within which to commence an action predicated on pre-election matters.
Section 285(9) of the Constitution provides:
“Notwithstanding anything to the contrary, 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.”
It is now apt to examine the Appellant’s pleadings and reliefs as evinced in his Originating Summons and affidavits in support to determine whether this suit was filed within the per prescribed by Section 285 (9) of the 1999 Constitution amended).
I have considered the questions posed for determination in the Appellant’s Originating Summons, and particularly the reliefs sought, which have been reproduced at the commencement of this judgment. I have also particularly considered paragraphs 13 and 14 of the affidavits in support of the Originating Summons, reproduced hereunder for ease of reference and comprehension;
13. I know as a fact that at the end of the primary election for nomination of candidate of the 1st Defendant into Kogi Central Senatorial District, I emerged winner with 937 votes and I

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was declared winner of the Primary Election and a copy of the Summary Result sheet was given to my agent. Copy of Summary of Result Sheet is attached and marked Exhibits 7
14. I know as a fact after the successful conduct of the Kogi Central Senatorial District Primary Election of the 1st Defendant and my emergence as the winner of the said election, information on media particularly social media making round that someone other than me was the winner of the Kogi Central Senatorial District Primary Election of the 1st defendant. I petitioned the 1st Defendant’s Election Appeal Committee for Kogi State on the 8th October, 2018. Copy of my petition is attached and marked Exhibits 8.
Upon a calm perusal of the community reading of the Appellant’s pleadings and the reliefs sought, particularly paragraphs 13 and 14 of the affidavit in support of the originating summons, it becomes glaringly clear that the Appellant’s claims are tied to the results of the primary election of the 1st Respondent held on the 3rd of October, 2018. Paragraphs 13 and 14 must necessarily be read together. The implication of the dispositions therein is that at the end of

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the primary election held on 3rd October, 2018, information on the media made the rounds that someone other than himself had been declared as the winner of the primary election. The import is that the Appellant became aware of the result announced by the 1st Respondent on the day of the election immediately after the election. This is more so as the Appellant conspicuously left out the date the information of the announcement of the result was made which was different from his own results. Contrary to the Appellant’s submission that the cause of action arose on the 18th October, 2018, the day the 1st Respondent forwarded the result of the primary election to the 3rd Respondent, the cause of action actually accrued on the 3rd of October, 2018, when the election was held and declared. I agree, as submitted by the 3rd Respondent’s counsel that the argument by the Appellant that his grievance is premised on the day the 1st Respondent forwarded the name of the 2nd Respondent is a clear attempt to mislead the trial Court on its jurisdiction so as to avoid the limitation period as prescribed by Section 285 (9) of the Constitution as amended. The learned trial judge

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was therefore right to have discountenanced the Appellant’s argument and declined jurisdiction. This is because an unfounded and misconceived argument of the Appellant cannot donate or confer jurisdiction on the trial suit. See Mobil Oil Production Unlimited v. Monokpo (2003) 18 NWLR (Pt. 852) 18 346 at 434. The learned trial Judge was on firm ground when he held that:
“It is not in doubt from the originating summons and even the responses of all the Defendants to the originating summons that the said primary election took place on 3/10/18 and that the result was declared on 4/10/18. What however the Plaintiff is contending is that he is not questioning the said election but rather the submission of the name of the 2nd defendant by the 1st Defendant as its candidate to the 3rd Defendant which was done on 18/10/18. I have no doubt that the claim of the Plaintiff is brought pursuant to Section 87 of the Electoral Act 2010 (as amended) and that it is a pre-election matter. I find as a fact that the Plaintiff’s action was filed on 30/10/18 on an event that occurred on 3/10/18. Consequently, the failure of the Plaintiff to institute this suit not later than 14

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days after the conduct of the primaries that gave rise to this suit as required by Section 285 (9) of the 1999 Constitution (4th Alteration Act, 2017) is fatal to the Plaintiff’s case thereby robbing the Court of jurisdiction to entertain same. See the unreported case of ALL PROGRESSIVE GRAND ALLIANCE vs. DR OKEY J. CHIDOLUE & 4 ORS. Appeal No. CA/1179/2018 at Pages 13 -14. See also PRINCE NICHOLA UKACHUKWU v. DR. OKEY CHIDOLUE
Having held that the Court lacks jurisdiction to hear and determine the Plaintiff’s case, this suit is accordingly struck out.” (Pages 521 -522 of the record of appeal)
Election matters, pre-election matters inclusive, are of sui generis, and time is of the essence of election matters. The period of limitation will begin to run from the actual date the cause of action arose and not from the date of subsequent action or event that played out after the primaries as the Appellant contends and wants this Court to believe by bringing the cause of action to the date the result, which had earlier been declared, to be the date the 2nd Respondent’s name was forwarded to the 3rd Respondent (INEC). The date of the occurrence of the

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event, decision or action complained of in this suit is definitely the 3rd of October, 2018, the day the primary election of the 1st Respondent was held and the result declared, ipso facto, definitely, not the date of the occurrence of the event of when the 2nd Respondent’s name was forwarded by the 1st Respondent to the 3rd Respondent.
The Appellant, having filed this suit on the 30th of October, 2018, about 27 days after the cause of action arose, contrary to the period of 14 days prescribed by Section 285 (9) of the 1999 Constitution, (as amended), this action is statute barred. The trial Court rightly declined jurisdiction to strike out the suit.

Issue one is resolved in favour of the Respondents and against the Appellant.

On issue 2, I have considered the submissions of the Appellant and the 1st, 2nd and 3rd Respondents on whether the Court of appeal, in the circumstances of this case can invoke its power under Section 15 of the Court of Appeal Act, to assume jurisdiction to determine the merits of the suit filed before the trial Court. There are conditions that must exist for Section 15 of the Court of Appeal Act to apply. These are: (a).

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That the High Court or trial Court had the legal power to adjudicate the matter before the appellate Court entertained it; (b). That the real issue raised by the claim of the appellant at the High Court or trial Court must be capable of being distilled from the grounds of appeal; (c). That all necessary materials must be available to the Court for consideration; (d). That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and (e). That injustice or hardship will follow if the case is remitted to the Court below.
All the conditions stated above must be met before the Court of Appeal can exercise its power. See Obi v. INEC (2007) vol. 9 JSC. 1, Okoronkwo v. FRN (2014) 11 WRN 127 at 151 -152. The essence of Section 15 of the Court of Appeal Act, is for this Court to assume jurisdiction and act as if it were the Court of first instance to determine the suit filed in the trial Court. One of the essential conditions for the invocation and assumption of original jurisdiction is that the lower Court or trial Court from which the appeal arose has the jurisdiction to entertain the

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suit. In this appeal, I have held that the lower Court was devoid of the jurisdiction to entertain the matter because the action is statute barred. Once an action is statute barred, it is dead for all purposes. It can never be revived. The Statute of Limitation removes the right of claim and leaves the Plaintiff with a bare action which he cannot enforce. See Eboigbe v. NNPC (Supra) Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637. The apex Court in A- G, Adamawa State & 2 Ors. v. AG of the Federation (2014) LPELR – 23221 (SC) at page 3435 encapsulated the legal implication of an action that is statute barred where Peter ? Odili JSC stated that:
Where a party?s action is statute barred the following legal consequences will follow: –
“a. The party would lose his right of action;
b. The party would lose the right of enforcement;
c. The party would also irretrievably lose the right to judicial relief;
d. The party would only have an empty cause of action which no court will assist him to enforce.
See alsoDaudu v. University of Agriculture, Makurdi & 4 ors. (2002) 17 NWLR (Pt. 796) 363 at pages 384 -385.”

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per PETER ODILI, JSC (pages 34 – 35, paras F – A)
Let me emphasize as it is replete in the law reports, the implication of limitation law. The conspicuous and undisputed effect of limitation law is that no legal proceedings can be properly or validly instituted after the expiration of the prescribed period. See Amaechi v. INEC (2013) 4 NWLR (Pt. 1345) 595 at 631.
Since no court can assist a Plaintiff whose action is statute barred, this appellate Court cannot assume jurisdiction in this matter.
The learned counsel for the Appellant on 13th of May, 2019, forwarded additional authorities to support his submission that the power of this Court under Section 15 of the Court of Appeal is exercisable to enable the Court take full charge of the appeal and determine the case on its merits. This, I believe is predicated on his contention that the cause of action in this matter accrued on 18th October, 2018, when the 2nd Respondent’s name was forwarded to INEC, the 3rd Respondent.
The cases are the Court of Appeal decision in Appeal No.CA/K/40/2019 between Engr. Suleiman Aliyu Lere v. APC & Ors delivered on 21/2/2019 where the Court of Appeal

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exercised its power under Section 15 of the Court of Appeal Act, to determine the pre-election matter on the merit, dismissed the decision of the trial Court and held another date contrary to the trial Court’s decision to be the date the cause of action arose. The judgment of the Court of Appeal was upheld by the Supreme Court in Appeal No. SC. 22 between APC & Anor v. Engr Suleiman Aliyu Lere & Anor delivered on 10th May, 2019.
I have perused both judgments critically. The facts of the case, though somewhat similar, its circumstances are distinguishable from the instant appeal. The issue in the cited case, is also in respect of the primary election conducted for Lere Federal Constituency of Kaduna State which election was held on 7th October, 2018 while the suit challenging the outcome of the Primary Election was filed on 30th October, 2018, 23 days after the election was conducted. The contention of the Plaintiff was that his cause of action accrued on 18th October, 2018, when the 2nd Appellant’s name was forwarded to INEC instead of his name, who won the election held on 7th October, 2018.
?The trial Court dismissed the action holding that

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it was statute barred; the suit having been commenced 23 days after 7th October, 2018, which date the trial Court adjudged as the accrual date of ’cause of action’. Both the Court of Appeal and Supreme Court, held otherwise, noting that the case was clearly that of substitution of name and therefore the cause of action arose on 30th October, 2018 when the name of the 2nd Appellant was unlawfully forwarded to the 3rd Respondent (INEC). The distinguishing factors in the cited case and this instant appeal is that unlike the cited case, the Plaintiff/Appellant and its party, APC filed counter-affidavits to the originating summons disputing the plaintiff’s case, consequently, in the cited case, the facts disposed to concerning the 1st and 2nd Respondents were deemed admitted. However, and more significant, is the fact that the 3rd Respondent, INEC, which monitored the election in that case specifically confirmed, and proved by Exhibit Lere 7, that is, the declared result. Also Exhibit Lere 8, the Monitor Report of INEC which included the whole results of those who won the Primary Election for the sixteen Federal House of Representatives Constituencies Kaduna State,

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that the Appellant, who was plaintiff at the High Court, Kaduna, actually won the primary election which was monitored by the 3rd Respondent.
“Furthermore, by the deposition of the Appellant, he became aware of the substitution when the name of the 2nd Respondent was forwarded to the 3rd Respondent instead of his own.” (See page 22 of the Court of Appeal judgment ? CA/K/40/2019.
However, in the appeal at hand, in the Court below, all the Respondents filed counter-affidavits to the Originating Summons. The 1st Respondent by paragraphs 5 (d) and (e) of his counter- affidavit (p. 157 of record of appeal) attached the copy of the result sheets of the 1st Respondent as Exhibit A1 and the report of the 3rd Respondent as Exhibit A2 at pages 160 and 161 – 165 respectively. The 2nd and 3rd Respondents also attached the same exhibits to their counter – affidavit.
See paragraphs 8 and 17 of 2nd Respondent’s counter-affidavit (pages 126 – 177) and paragraph 12 of the 3rd Respondent’s affidavit (page 404 of the record) and Exhibit INEC 01, the Monitor Report by INEC at pages 406 to 412, which showed, as stated by INEC that the 1st

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Respondent, herein won the election. Better still, it is instructive and paramount to note that, unlike the cited case where the Appellant only became aware of the wrong committed against him when his name was substituted on the 18th October, 2018, in this case, as analysed earlier, the Appellant, by this depositions in paragraphs 13 and 14 of the affidavit in support of his originating summons, became aware of the alleged wrong against him when the 2nd Respondent was declared as the winner on the date when the primary election was held and declared, being 3rd October, 2018. The law is that a right of action accrues only when the complainant becomes aware of the wrong committed against him. See Jall Co, v. Owoniboys Tech. Service (1995) 4 NWLR (Pt. 319) 53, Mulina v. Usman (2014) 16 NWLR (Pt. 1432) 160. It is trite law that each case must be considered and be determined on its own peculiar facts and circumstances. The facts in Appeal CA/A/292/2019, confirmed by Appeal No. SC222/2019 though similar to the appeal at hand is not identical.
The facts and circumstances are not on all fours with the one at hand. It cannot therefore be made applicable to bind this

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Court mutantis mantandi. In other words, it cannot blindly be made a precedent to be followed by this Court. See Paul Onyia v. The State (2008) LPELR – 2743 (SC) pages 19 – 20, Williams v. Rising Voluntary Funds Society (1982) 1 All NLR (Pt. 1), Skye Bank Plc & Anor v. Chief Akinpelu (2010) LPELR – 3073 (SC) 40 (2010) 9 NWLR (Pt. 1198) 179, APC v. INEC (2015) 8 NWLR (Pt. 1462) 531 at 583 Nig. Agip Oil Coy. Limited v. Nkweke (2016) 7 NWLR (Pt 1512) 588 at 624.
The cases cited by the Appellant are not apposite to the facts of this appeal. What I am saying in effect is that the conditions upon which this Court can invoke its power under Section 15 of the Court of Appeal Act have not been met, in this appeal.
To worsen the situation, as rightly submitted by the 2nd Respondent’s counsel, even the second condition which stipulates that “the real issue in controversy between the parties must be raised as a ground of appeal in the Notice of Appeal was not met by the Appellant, to assume jurisdiction over the suit.”
This appeal, having regards to the Notice of Appeal failed to make the controversial issues that are to be tried at the

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lower Court ground of appeal before this Court, I also fatal to the invocation of Section 15 of the Court of Appeal Act.

In the light of the foregoing, issue two is also resolved against the Appellant and in favour of the Respondents. In the sum, this appeal is unmeritorious and it is hereby dismissed. The judgment of the trial Court is hereby affirmed.
?Parties are to bear their respective cost.

STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment of my learned brother Tinuade Akomolafe-Wilson, JCA just delivered. I am in agreement with his reasoning and conclusion that the appeal is lacking in merit and must be dismissed.

The issue that was thoroughly flogged in this appeal is as to when the cause of action arose. In Owie v. Ighiwi (2005) 5 NWLR (Pt 917) 184, the Supreme Court per Onu, JSC held that the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin to maintain his cause of action. It is settled law I must re-echo, that the cause of action of a plaintiff is the factual situation or a combination of facts or acts relied upon by him as

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entitling him to a remedy against the defendant. See Adekoya v. FHA (2008) 11 NWLR (Pt 1099) 539, Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 516, @ 528.
In the instant case, the Party Primary was conducted on 3/10/18. Results were said to be out on 4/10/19. The appellant had problem with the result declared or the conduct of the primary that definitely was why he had to petition the Appeal Committee of the party. At the point of petitioning the Appeal Committee, cause of action had accrued. The talk of the cause of action not accruing until the submission of results to the 3rd Respondent INEC on the 18/10/19 cannot be justified in the circumstance.
Time begins to run from the point the cause of action accrued on 4/10/19 when the results of primary election was announced. The time spent to petition the Appeals Committee of the party does not stop the time from running. When the appellant came to Court on 30/10/18 the time had run out. Thus, a cause of action is said to be statute barred if legal proceedings cannot be commenced in Court because the period laid down by the limitation law or Act had elapsed. See AG. Adamawa State v. Attorney General of the Federation (2014) 14 NWLR (Pt

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1428) 515 where PETER-ODILI, JSC held regarding the determination of cause of action as follows: –
“In the regard therefore, it is to be said that in the event of whether an action is caught by the statute of limitation, what is of paramount consideration is the determination of:- (a) the cause of action; (b) when the cause of action accrued and (c) when the action became statute-barred. To determine the conditions above, what the Court would look at are the writ of summons and the statement of claim alleging when the wrong which gave the plaintiff a cause of action was committed and by comparing that date with the date on which the writ of summons was filed. Muhammed v. Military Administrator, Plateau State (2001) 16 NWLR (Pt. 740) 510 at 545-546; British Airways Plc v. Akinyosoye (1995) 1 NWLR (N.374) 722.”
It follows therefore that the originating processes as accessed by my learned brother in the lead judgment is right are of consequence.
My learned brother has in the lead judgment given due consideration to the crux of this appeal and I concur with his finding that the claim of the appellant was timed out. The lower Court was therefore right in its

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decision. This appeal is therefore lacking in merit. It is hereby dismissed.
I too abide by the consequential order made therein.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, TINUADE AKOMOLAFE-WILSON, JCA. I agree with the reasoning, conclusions and orders therein.

 

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Appearances:

Ibrahim K. Bawa SAN with him, Sarafa Yusuff Sarki Adam, Ahmed Mohammed Jega and Muka’ila Yahaya ManoFor Appellant(s)

Abdulwahab Muhammed with him, Ruth C. Keneboh & Mahadiyat Sheidu for 1st Respondent.

Chief A. A. Adeniyi with him, Polycap Nwanchukwu for 2nd Respondent.

Clement Erobhubie with him, Ruth Efeoghene for 3rd Respondent
For Respondent(s)

 

Appearances

Ibrahim K. Bawa SAN with him, Sarafa Yusuff Sarki Adam, Ahmed Mohammed Jega and Muka’ila Yahaya ManoFor Appellant

 

AND

Abdulwahab Muhammed with him, Ruth C. Keneboh & Mahadiyat Sheidu for 1st Respondent.

Chief A. A. Adeniyi with him, Polycap Nwanchukwu for 2nd Respondent.

Clement Erobhubie with him, Ruth Efeoghene for 3rd RespondentFor Respondent