DUMO OWUKORI LULU-BRIGGS & ORS v. HON. PRECIOUS BARITORDOO BARIDOO & ANOR
(2019)LCN/13158(CA)
(2019) LPELR-48249(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of April, 2019
CA/PH/120/2019
RATIO
JURISDICTION: THE EFFECT OF A COURT LACKING JURISDICTION
The law is trite and settled too that if a Court lacks jurisdiction to hear and determine a matter before it, any step taken therein is a nullity and completely void. See MADUKOLU VS. NKEMDILIM (1962)1 SCNLR 341; TIMITIMI VS. AMABEBE 14 WACA 374.PER ISAIAH OLUFEMI AKEJU, J.C.A.
JURISDICTION: THE PROPER ORDER TO BE MADE WHEN A COURT LACKS JURISDICTION
It is also trite that the proper order to be made where the Court lacks jurisdiction is an order striking out the suit. See TINUBU VS. KHALIL & DIBBO TRANSPORT LTD (2000) 11 NWLR (PT. 677)171; SALEH VS. MONGUNO (2003) 1 NWLR (PT. 801) 221; OKAFOR VS. NNAIFE (1973) 1 ALL NLR (PT. 1) 238. PER ISAIAH OLUFEMI AKEJU, J.C.A.
Justice
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
1. DUMO OWUKORI LULU-BRIGGS
2. BABA NELSON AMIEYE
3. ACCORDAppellant(s)
AND
1. HON. PRECIOUS BARITORDOO BARIDOO
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Federal High Court Port Harcourt Division delivered on 28/2/2019 in suit No. PHC/PH/CS/163/2018 by which Judgment the lower Court granted all the reliefs sought by the 1st Respondent against the Appellants and the 2nd Respondent.
The action of the 1st Respondent at the lower Court was a pre-election matter based on the substitution of the 1st Respondent by the 3rd Respondent as its nominated and selected candidate for the 2019 Governorship election in Rivers State.
As set out in the originating summons filed on 12/2/19 in commencement of the action, the 1st Respondent as plaintiff posed the following questions for determination: –
1. Whether by the combined provisions of Sections 33, 35 and 87 of the Electoral Act, 2010 (as amended) and Section 177 (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 1st Defendant who was not an Aspirant and/or did not participate in the primary election held by the 3rd defendant in Rivers State on 4th day of October, 2018 and observed by the 4th Defendant is
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eligible or qualified to be sponsored by the 3rd Defendant as its Governorship candidate in Rivers State for the 2019 general elections fixed by the 4th defendant?
2. Whether by the combined provisions of Sections 33,35 and 87 of the Electoral Act, 2010 (as amended) and Section 177 (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 3rd Defendant is competent to sponsor or present the 1st defendant to the 4th Defendant as its governorship candidate in Rivers State in the 2019 general elections having regard to the fact that the 1st Defendant did not participate in and/or was not an Aspirant in the primary elections held by the 3rd defendant in Rivers State on 4th October, 2018?
3. Whether by the combined provision of Sections 33,35 and 87 of the Electoral Act, 2010 (as amended) and Section 177 (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 1st Defendant who was not an Aspirant in the primary election held by the 3rd Defendant in Rivers State on 4th October, 2018 and observed by the 4th Defendant is eligible or qualified to be presented by the 3rd Defendant to the 4th Defendant as its
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Governorship candidate in Rivers State in the 2019 general elections fixed by the 4th Defendant?
4. Whether by the combined provision of Sections 33,35 and 87 of the Electoral Act, 2010 (as amended) and Section 177 (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 1st Defendant who was not an Aspirant in the primary election held by the 3rd Defendant in Rivers State on 4th October, 2018 and observed by the 4th Defendant is eligible or qualified to be accepted by the 4th Defendant as the 3rd Defendants Governorship candidate in Rivers State in the 2019 general elections fixed by the 4th Defendant?
5. Whether by the combined provisions of Sections 33, and 35 of the Electoral Act, 2010 (as amended) the 2nd Defendant who was not an Aspirant in the primary election held by the 3rd Defendant in Rivers State on 4th October, 2018 could be validly substituted with the 1st Defendant as the Governorship candidate of the 3rd Defendant in Rivers State in the 2019 General election fixed by the 4th Defendants?
6. Whether by the combined provisions of Sections 31, 33 and 35 of the Electoral Act, 2010 (as amended), the
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plaintiff who was returned as 3rd Defendants Governorship Candidate in Rivers State in the primary election held by the 3rd Defendant on 4th October, 2018 could be validly substituted with the 1st defendant by the 3rd defendant when the 1st defendant was not an Aspirant in the 3rd Defendants primary election held in Rivers State on 4th October, 2018 and the plaintiff has not withdrawn his candidature?
7. Whether by the combined provisions of Sections 33,35 and 87 of the Electoral Act, 2010 (as amended) and Section 177 (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 1st Defendant is qualified or eligible to contest the 2019 general election as the Governorship candidate of the 3rd defendant in Rivers State or otherwise howsoever, present, represent or parade himself to the 4th Defendant as the 3rd Defendants Governorship candidate in Rivers State for the 2019 general elections having not participated in the primary election held by the 3rd Defendant in Rivers State on 4th October, 2018.
Consequently and based on the resolution of the questions, the 1st Respondent (Plaintiff) sought the following
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reliefs against the defendants jointly and severally;
1. A DECLARATION that the Plaintiff is the duly nominated and selected Governorship candidate of the 3rd defendant in Rivers State in the 2019 general elections by virtue of the primary election (state primaries) held by the 3rd Defendant on 4th October, 2018 in Port Harcourt Rivers State.
2. A DECLARATION that the 3rd Defendant lacks the power or competence to substitute the plaintiff with the 1st defendant as its Governorship candidate in Rivers State in the 2019 general elections when the 1st Defendant was not an Aspirant in the 3rd Defendants state primaries held in Rivers State on 4th October, 2018 and the plaintiff has not withdrawn his candidature for the said election?
3. A DECLARATION that the 1st Defendant who was not an Aspirant and/or did not participate in the primary election in Rivers State held by the 3rd Defendant on 4th day of October, 2018 and observed by the 4th Defendant is not eligible or qualified to be sponsored by the 3rd Defendant as its Governorship candidate in Rivers State for the 2019 general elections as fixed by the 3rd Defendant.
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4. A DECLARATION that the 1st Defendant who was not an Aspirant and/or did not participate in the primary election in Rivers State held by the 3rd Defendant on 4th day of October, 2018 and observed by the 4th Defendant is not eligible or qualified to be presented by the 3rd Defendant to the 4th Defendant and/or to present himself to the 4th Defendant as the 3rd Defendants Governorship candidate in Rivers State for the 2019 general elections as fixed by the 4th Defendant.
5. A DECLARATION that the 3rd Defendant is not entitled or competent to sponsor the 1st Defendant as its governorship candidate in Rivers State for the 2019 general elections having regard to the fact that the 1st defendant did not participate in the primary election held by the 3rd defendant in Rivers State on 4th day of October, 2018 and/or when the plaintiff has not withdrawn his candidature for the said election.
6. A DECLARATION that the 2nd Defendant who was not an Aspirant in the primary election held by the 3rd defendant in Rivers State on 4th day of October, 2018 could not be validly substituted with the 1st Defendant as the Governorship candidate of the 3rd
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Defendant in Rivers State in the 2019 general elections fixed by the 4th Defendant.
7. A DECLARATION that the 4th Defendant is not competent to accept the 1st Defendant as the 3rd Defendants governorship candidate in Rivers State in the 2019 general elections fixed by the 4th Defendant since the 1st Defendant did not participate in the primary election held by the 3rd defendant in Rivers State on 4th October, 2018 and duly observed by the 4th defendant.
8. A DECLARATION that the 1st Defendant is not eligible or qualified to contest the 2019 governorship elections in Rivers State under the sponsorship or platform of the 3rd Defendant having not participated in the primary election held by the 3rd Defendant in Rivers State on 4th day of October, 2018.
9. AN ORDER OF MANDATORY INJUNCTION compelling the 3rd and 4th Defendants by themselves, servants, agents or privies to accept, recognize and deal with the Plaintiff as the 3rd Defendants Governorship Candidate in Rivers State for the 2019 general elections.
10. AN ORDER of perpetual Injunction restraining the 3rd Defendant by itself, officers, servants, agent or
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privies from substituting or purporting to substitute the plaintiff with the 1st defendant as the 3rd defendants governorship candidate in Rivers State for the 2019 general elections.
11. AN ORDER of perpetual Injunction restraining the 3rd Defendant by itself officers, servants, agent or privies from sponsoring or purporting to sponsor, present or represent the 1st defendant to the 4th defendant as its governorship candidate in Rivers State for the 2019 general elections.
12. AN ORDER of Perpetual Injunction restraining the 4th Defendant by itself, officers, servants, agent or privies from accepting, recognizing, or dealing with the 1st Defendant as the 3rd Defendants governorship candidate in Rivers State for the 2019 governorship election fixed by the 4th Defendant.
13. AN ORDER of Perpetual Injunction restraining the 1st Defendant by himself or through his servants, agents, associates or privies from presenting representing or purporting to present or represent himself to the 4th Defendant as the 3rd defendants governorship candidate in Rivers State for 2019 governorship election fixed by the 4th Defendant or
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otherwise howsoever parading himself as the 3rd defendants governorship candidate in Rivers State for the 2019 general elections.
14. AN ORDER of this Honourable Court setting aside the purported nomination of the 1st defendant by the 3rd defendant as its governorship candidate for Rivers State in the 2019 general elections AND/OR AN ORDER of the Honourable Court setting aside the purported acceptance by the 4th Defendant of the purported nomination of the 1st defendant by the 3rd defendant as its governorship candidate in Rivers State for the 2019 general elections.
The summons was filed with a supporting affidavit of 40 paragraphs deposed to by the 1st Respondent himself Hon. Precious Baritordo Baridoo and documents were attached therewith and the Written Address was also filed therewith.
Upon service of the originating summons, the 3rd defendant now 3rd appellant, Accord filed a Counter Affidavit of 39 paragraphs on 24th December, 2018. The 3rd Respondent also filed a Notice of Preliminary Objection on 28/12/18. The 1st and 2nd Defendants filed their Counter affidavit on 16/1/19 while the plaintiff filed a further Affidavit in
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response on 22/1/19. Being dissatisfied with the decision of the lower Court, the Appellants filed their Notice and Grounds of Appeal.
The Appellants Brief of Argument filed on 10/4/19 was settled by Wilcox Abereton, SAN and the following issues were raised for determination;
1. Was the trial Court correct to adjourn its ruling on 1st & 2nd Appellants motion for extension of time to file their processes in opposition to the originating summons to the same date of the judgment in the substantive matter and in eventually dismissing the said motion.
2. Whether the refusal by the trial Court to give 1st & 2nd Appellants time to secure the services of another lawyer upon the withdrawal of their Senior counsel is not perverse and a denial of the fundamental right of the said Appellants to be heard in this case.
3. Whether the trial Court did not exhibit manifest bias in the conduct of this case in refusing to rule on Appellants application for extension of time to file their counter affidavit and written address when it proceeded to grant the motion for extension of time filed by the 2nd Respondent even in their
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absence.
4. Did the trial Court not err in coming to the conclusion that the 1st Respondent was the aspirant who emerged from the party primaries of the 3rd Appellant and who ought to be sponsored by the said party as its governorship candidate for Rivers State.
5. Whether the claims made in the originating summons in this pre-election matter on 12/12/2018 are not statute barred.
In the 1st Respondents Brief settled by J.T.O. Ugboduma Esq. and filed on 15/4/19, the issues raised for determination are;
1. Whether the learned trial Judge in arriving at his decision in this suit breached the Appellants right to fair hearing.
2. Whether the learned trial Judge was justified in granting the reliefs claimed by the 1st Respondent in this suit.
3. Whether this suit is statute barred.
The issues formulated by the parties are quite similar but the issues raised by the appellants are adopted for the consideration and determination of the appeal so as to ensure that nothing of significance is left unattended to.
It is noted that both parties have asked whether the action at the lower Court was not
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statute barred. This issue must be considered first before any other issue based on its significance. It is settled that when an action is found to be statute barred the plaintiff who might have had a cause of action loses the right to enforce same by judicial process, as an action commenced after the expiration of the statutory period for its commencement is not maintainable. See HASSAN VS. ALIYU (2010) 17 NWLR (PT. 1223) 547; WILLIAMS VS WILLIAMS (2008) 10 NWLR (PT. 1095) 364.
On this issue the Senior Counsel for the Appellants contended that the lower Court was in error when it held that the cause of action in this case did not start on 9/11/2018 when the 2nd Respondent published the names of persons nominated or elected by the various parties to contest the general elections, but on 1/12/18 when the 1st Respondent noticed that his name had not been sent to INEC and that the 2nd Appellants name had been used to replace his own name. It was contended that time is of the essence in an election or election related matter. It was submitted that by the provision of Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 Fourth Alteration, No. 21 Act, 2017,
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every pre-election matter is to be filed not later than 14 days from the date of the occurrence of the event, decision, or action complained of.
It was submitted that the event that occurred in the instant case is the publication of the list of successful aspirants or candidates by the 2nd Respondent which was done on 9/11/18 and this was the event that ought to have galvanised the 1st Respondent to commence action within 14 days in line with the Fourth Alteration Act to challenge the candidature of the 2nd Appellant. It was further contended that from 9/11/18 to 12/12/18 when this suit was filed, the duration of time is thirty four days which is 20 days outside the time stipulated by the law. The action of the 1st Respondent was therefore statute barred and the trial Court lacked the jurisdiction to entertain it being a pre-election matter which is sui generis and time for commencement thereof cannot be extended, so argued the learned SAN.
Arguing under his own issue No.3, the learned counsel for the Respondents contended that since the 1st and 2nd Appellants deliberately decided not to have defence to the action of the
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1st Respondent, this issue is bound to crumble.
The learned counsel contended also that from the findings of the trial Court the cause of action arose on 1/12/18 and not 9/11/18 as erroneously stated by the Appellants.
In the case of ADEKOYA VS. FEDERAL HOUSING AUTHORITY (2008) 4 SC 181, the Supreme Court held that a cause of action is said to be statute barred if in respect thereof, proceedings cannot be brought because the period laid down by the Limitation, Act or Law has lapsed, and that limitation of action is determined by looking at the Writ of Summons or the Statement of Claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date with the date on which the Writ of Summons was filed.
The facts of this case show that it was on 9/11/2018 that the 2nd Respondent published the list of contestants for the general election or those nominated by the various political parties to contest the election and the name of the 1st Respondent was allegedly omitted. I therefore quite agree with the learned SAN for Appellants that the action of the 1st Respondent had fully crystalised as at that date
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of publication on 9/11/18 and not 1/12/18 when the 1st Respondent claimed that he saw that the name of 2nd Appellant had been used to replace his own name.
By simple arithmetical calculation, based on comparing the date the cause of action occurred and the date of filing the Originating Summons, it is clear and indisputable that the action of the 1st Respondent was filed outside the statutory days allowed by Section 285(9) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration No.21) Act 2017 which provides that a pre-election matter must be filed not later than 14 days from the date of occurrence of the event, decision or action complained of in the suit. It is clear that from 9/11/18 when the cause of action accrued to 12/12/18 when this action was commenced is a period of 34 days which is 20 days outside the period allowed by law.
It is the law that an election matter is sui generis and time is of the essence in election and pre-election matters. See HASSAN VS. ALIYU (2010) 17 NWLR (PT. 1223) 547.
From the foregoing it can be conveniently concluded that having been filed 20 days outside the statutory period, the action of
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the 1st Respondent had been statute barred and the lower Court was bereft of the jurisdiction to entertain same.
The law is trite and settled too that if a Court lacks jurisdiction to hear and determine a matter before it, any step taken therein is a nullity and completely void. See MADUKOLU VS. NKEMDILIM (1962)1 SCNLR 341; TIMITIMI VS. AMABEBE 14 WACA 374.
It is also trite that the proper order to be made where the Court lacks jurisdiction is an order striking out the suit. See TINUBU VS. KHALIL & DIBBO TRANSPORT LTD (2000) 11 NWLR (PT. 677)171; SALEH VS. MONGUNO (2003) 1 NWLR (PT. 801) 221; OKAFOR VS. NNAIFE (1973) 1 ALL NLR (PT. 1) 238.
Based on my foregoing consideration of this issue I find and hold that the jurisdiction of the lower Court was not properly galvanised, and the proper order is to strike out the action which is accordingly hereby struck out. I therefore resolve this issue No. 5 in favour of the Appellants.
Having resolved this jurisdictional issue in favour of the Appellants the remaining issues have become idle and do not deserve any consideration by this Court. See IKECHUKWU VS FRN (2015) VOL.3 MJSC 123.
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This appeal therefore succeeds on this issue and it is allowed. The action of the 1st Respondent at the lower Court upon which this appeal is based is struck out.
No Order as to costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree
MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my Learned brother ISAIAH OLUFEMI AKEJU, JCA.
I agree that this appeal has merit and it is accordingly allowed. I abide by all the consequential Orders in this appeal.
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Appearances:
A.J. Oklonkoke, SAN with him, Wilcox Abereton (SAN), S.A. Oke, E.L. Oodee and E.M. KemaFor Appellant(s)
J.T.O. Ugboduma, Esq. with him, Amrurwbo, Esq., S.T.O. Amatonjie and P.N. ZephamiahFor Respondent(s)
>
Appearances
A.J. Oklonkoke, SAN with him, Wilcox Abereton (SAN), S.A. Oke, E.L. Oodee and E.M. KemaFor Appellant
AND
J.T.O. Ugboduma, Esq. with him, Amrurwbo, Esq., S.T.O. Amatonjie and P.N. ZephamiahFor Respondent
