DR. ABDUL-RAHEEM ADEBAYO SHITTU v. ALL PROGRESSIVE CONGRESS
(2019)LCN/13519(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of June, 2019
CA/IB/193/2019
RATIO
CAUSE OF ACTION: DEFINITION
A cause of action has been held to consist of the aggregate of fact(s) which will give a party the right to seek judicial redress or relief against another. see ESUWOYE VS. BOSERE 2017 1 NWLR (PT. 1546) 256 AT 297 PARAGRAPHS E – H; ONUKWUSI VS. R.T.C.M.Z.C. 2011 6 NWLR PT. 1243 341 AT 359 PARAGRAPHS E – F and NWEKE VS. NUIZIK AWKA (2017) 18 NWLR (PT. 1598) 454 AT 475 PARAGRAPHS E.PER NONYEREM OKORONKWO, J.C.A.
JUSTICES
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
DR. ABDUL-RAHEEM ADEBAYO SHITTU Appellant(s)
AND
ALL PROGRESSIVE CONGRESS Respondent(s)
NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): In this appeal against the judgment of the Federal High Court at Ibadan given on 12th April, the Court per Hon. Justice P.I. Ajoku held as follows at page 160 of the records:
Having reviewed the Law as above, I have no doubt in my mind that the Plaintiff?s cause of action in the instant case accrued on the 28th day of September, 2018 when the 1st Defendant made the pronouncement disqualifying him and time started to run for the computation of time for the purposes of the provision of Section 285 (9) of the 1999 Constitution as amended. Consequently, the Plaintiff?s contention that time started to run seven (7) days after is without merit; suffice it to say that the Act is specific on the date the aggrieved party is mandated to initiate his action, if any.?
The trial Court proceeded to declare the Plaintiffs Suit as stale and bereft of merit and went ahead to decline jurisdiction to adjudicate on the merits and struck out the case on 12th April, 2019.
Being dissatisfied with the judgment, the Plaintiff as Appellant by Notice of
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Appeal at Federal High Court Ibadan filed this appeal upon the following 3 Grounds of appeal:
GROUNDS OF APPEAL
Ground One
The learned trial Judge erred in law when he found at page 10 of his judgment thus:
?Having reviewed the law as above, I have no doubt in my mind that the Plaintiff?s cause of action in the instant case accrued on the 28th day of September, 2018 when the 1st Defendant made the pronouncement disqualifying him and time started to run for computation of time for the purposes of the provisions of Section 285 (9) of the 1999 Constitution as amended. Consequently the Plaintiff?s contention that time started to run seven days after is without merits; suffice to state that the Act is specific on the date the aggrieved party is mandated to initiate his action, if any.
Ground Two
The learned trial Judge erred in law when he held that the Plaintiffs action is stale and thus, consequentially struck same out.
Ground Three
The learned trial Judge erred in law when without considering the Plaintiffs Suit on the merit held that the Plaintiffs case is.bereft of
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merit thus further breached the constitutional right of the Appellant to fair hearing.
From the grounds of appeal, the Appellant formulated two issues for determination as follows:
Appellants Issues for Determination
1. Whether having regards to paragraphs 15-20 of the Affidavit in support of the Originating Summons and Exhibits Shittu 5, 6 and 7 attached thereto, the learned trial Judge was right when he held that the Plaintiff?s cause of action accrued on the 28th day of September, 2018 and consequentially struck out the Plaintiff?s Suit for being statute barred (Distilled from Grounds 1 and 2)
2. Whether the finding of the trial Court to the effect that the Plaintiffs Suit is bereft of merit when same was not considered or decided on the merit by the learned trial Judge is not a breach of the Appellants constitutional right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). (Distilled from Ground 3).
Background Facts
The facts of the case leading to the appeal are as given by the Plaintiff/Appellant as the Defendant
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did not file any processes nor brief of argument. For the purpose of this appeal, we will adopt the facts given by the Appellant which the trial Judge also worked with. The Appellant states thus:-
The Plaintiff is a Card Carrying member of the 1st Respondent and as at the material time of filing the Originating Processes as well as filling of this Brief of Argument, still a serving Minister of Communications of the Federal Republic of Nigeria.
Upon the call for nomination of candidates for various elective positions for 2019 general election by the 2nd Defendant (INEC), the Plaintiff purchased expression of interest form and picked up nomination forms of the 1st Defendant to participate in the 1st Defendants Governorship Primary election for Oyo State. See Exhibits Shittu 3 and Shittu 4. The Plaintiff was invited to appear before the Screening Committee of the 1st Defendant, he appeared and was duly screened alongside other Aspirants. It must be stated that the Plaintiff was never questioned on the issue of NYSC during the screening exercise. Subsequently and surprisingly, the Plaintiff/Appellants attention was drawn to a Newspaper
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Publications dated the 28th day of September, 2018 in which he was purportedly declared by the 1st Defendant not to be qualified to participate in the 1st Defendant?s Governorship primary election for Oyo State on the ground of having not participated in National Youth Service Scheme.
In line with the Constitution of the 1st Defendant/1st Respondent, the Plaintiff /Appellant on that same 28th day of September, 2018, immediately appealed to the National Chairman of the 1st Defendant for review of his disqualification to participate in the Oyo State Gubernatorial Primary election vide Exhibit SHITTU 6 which was received on the 29th day of September, 2018 by the National Chairman of the 1st Defendant/ Respondent. The Plaintiff further engaged the services of his Lawyers, Messer. Robert Clarke & Mohammed and a further appeal dated the 2nd day of October, 2018 was written by Robert Clarke SAN to the National Chairman of the 1st Defendant. This further appeal was attached to the Affidavit in support of the Originating Summons as ?Exhibit SHITTU 7?.
Your lordships, it must be noted by Article 21(c) of the Constitution of the 1st
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Respondent attached to the supporting affidavit as Exhibit SHITTU 8, the right of appeal of the Plaintiff/Appellant against any decision of any of the Organs of the 1st Defendant (the APC) was guaranteed and the time within which to appeal or exercise his right of appeal is stipulated to be within seven (7) days of any decision any member of the party is dissatisfied with.
Thus, when the Plaintiff/Appellant waited for response to his appeals and or for invitation to be heard in line with the Party Constitution and the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which guarantees his fair hearing at any given circumstances and he did not get any, he quickly rushed to the Federal High Court, Abuja judicial Division by filing an Originating Summons on the 16th day of October, 2018 to ventilate his grievance.
The Federal High Court siting in Abuja however raised the issue of territorial jurisdiction in the Suit and thus transferred same to the Ibadan Judicial Division of the Federal High Court pursuant to its power under Section 22 of the Federal High Court Act notwithstanding the presence of the 1st and 2nd Defendants in Abuja.
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The Appellants Suit further suffered two more adjournments at the Federal High Court in Ibadan due to the absence of the 1st and 2nd Defendants who were further served with hearing notices of the Federal High Court sitting in Ibadan against the two adjourned dates. On the 2nd day of April, 2019, less than 10 days to the expiration of the 180 days within which the trial Court was to determine the Suit, the learned trial Judge raised the issue of whether the Appellants Suit was not statute barred suo motu and thus directed parties to file Written Addresses to that effect.
The Plaintiff/Appellant also took it upon himself to intimate the 1st and 2nd Defendants of the decision of the Federal High Court by separately writing letters to the duo as well as mobilizing the Bailiffs of the Federal High Court from Ibadan to serve Hearing Notices on the 1st and 2nd Respondents in Abuja again. These were also ignored and or disregarded by the Respondents.
In compliance with the Order of the trial Court to address her on the Provisions of Section 285 (10) of the Constitution of the Federal Republic of Nigeria, 1999, (Fourth Alteration No. 21) Act,2017,
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the Appellants counsel filed a Plaintiff?s written address dated the 8th day of April, 2019 and filed same date. The said Plaintiffs written address is at pages 131-140 of the record of appeal. None of the Defendants obeyed the directive of the Federal High Court by filing Written Addresses.
My lords, on the 10th day of April, 2019 when the matter came up for address as ordered, a Counsel emerged and did not only appeared for the 1st Defendant but insistently applied for an adjournment to file their Written Address but his application for adjournment to file Written Address was refused by the learned trial Judge who was aware of the fact that it had less than two (2) days to determine the Suit either ways. The 1st Respondent was however allowed to address the Court orally.
The learned trial Judge delivered his judgment on the 12th day of April, 2019, struck out the Plaintiff?s Suit for being statute barred. The judgment of the trial Court is at pages 151-161 of the Records of Appeal. Dissatisfied with the judgment of the trial Court, the Plaintiff/ Appellant has appealed to this Honourable Court contained as pages
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162-169 of the record of appeal. Your lordships, this is the Appellant?s brief of argument based on the notice of appeal transmitted to this Hounorable Court.
CONSIDERATION OF ISSUES
Issue Number One
The main issue of the Appellant is that his party, All Progressive Congress (APC) precluded him (Appellant) from participating in the Primary Election for nomination of the Governorship candidate of the defendant i.e (APC) in Oyo State for the 2019 General Election on the ground that the Plaintiff (Appellant) does not possess National Youth Service Corp discharge/Exemption Certificate which Appellant by his Suit contends is in breach of his constitutional right to vote and be voted for.
In his affidavit in support of Appellant?s originating Summons, the disqualification of Appellant was notified in a publication Exhibit SHITTU 5 of 28th September 2018 whereupon by his (Appellants) letter of 28th September 2018 he (Appellant) protested to the 1st Appellant APC about his disqualification on grounds of not possessing NYSC discharge/exemption certificate. The letter is Exhibit SHITTU 6. Further on this, the Appellant retained
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counsel Clarke & Mohammed who wrote to the APC contending that possession of NYSC discharge certificate is not a necessary precondition for eligibility for the election. The letter was addressed to the National Chairman of the APC (1st Appellant) for a review of the decision and to allow Appellant to contest in the primary.
As the affidavit in support of the Originating Summons revealed in paragraph 20 thereof, the 1st Appellant failed and/or refused to address the complaint contained in Appellants appeals and conducted its Governorship primary Election in Oyo State on 30th September, 2018.
Against this background, the concern the learned trial Judge raised was whether having regards to 285 (9) of the Constitution (as amended) which provides thus:
Notwithstanding anything to the contrary in this Constitution every pre-election matter shall be filed not later that 14 days from the date of the occurrence of the event, decision or action complained of in the Suit
and whether the suit of the Appellant whether by Originating Summons or otherwise, was not caught by Limitation provision of that part of the Constitution or put in common
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parlance was not statute barred.
Learned trial Judge in due prudence invited arguments from counsel. Appellants counsel duly filed an address while the Respondent neglected to file any but proffered oral arguments in Court.
The central point of the issue to be addressed on is when did the cause of action arise and lapse by virtue of Section 285 (9) of the Constitution as amended. Appellants argument was that although the event of 28th September 2018 was when Appellant became aware of what purports to be his disqualification from contesting the Governorship Primary, he (Appellant) had by letter of his solicitors made an appeal for a review to the 1st Respondent under Article 21 (c) of the 1st Appellants constitution and that by reason thereof, the cause of action was at large and would only accrue when the 1st Respondent reached a decision on his letter of appeal as in Exhibit Shittu 7 whereupon he Appellant would have had additional seven days from the date of the review. As it turned out, the 1st Respondent (APC) failed and/or refused to address the complaint contained in the Appellants appeal as he deposed to in Paragraph 20.
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For the 1st Respondent who submitted no brief nor filed any Respondent?s process, the counsel in oral argument wrote off the Suit of the Appellant as merely academic serving no useful purpose and entirely spent as the primary election complained about has held and that time gone cannot be reversed.
The learned trial Judge at the Federal High Court was not in the least persuaded by the Appellants argument that his cause of action arose after seven days provided by the 1st Defendants
