GOMNA v. ALIYU & ANOR (2020)

GOMNA v. ALIYU & ANOR

(2020)LCN/14027(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, March 23, 2020

CA/A/1/2020

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Between

ABUBAKAR S. GOMNA APPELANT(S)

And

1. ATTAHIRU ALIYU 2. NIGER STATE INDEPENDENT ELECTORAL COMMISSION (INEC) RESPONDENT(S)

RATIO

THE RULE ON INTERPRETATION OF STATUTES

The above law is, very clear, plain, straightforward and unambiguous. The law is trite that where the words used in the Constitution or a statute is clear and unambiguous, the provisions should be interpreted by attaching to the words used by the legislature their ordinary grammatical meaning; unless such an interpretation may result in an absurdity. See the cases of;
AHMED V. KASSIM (1958) 3 FSC 51; (1958) SCNLR 28;
YEROKUN V. ADELEKE (1960) 5 FSC 126; (1960) SCNLR 267. PER ABOKI, J.C.A.

WHETHER OR NOT THE TIME LIMIT SPECCIFIEDIN A STATUTE FOR DOING ANYTHING CAN BE ENLARGED OUTSIDE THE TIME FIXED

The law, as settled by the Supreme Court, is that when a statute, such as Section 30 of the Niger State Local Government Council Law 2002, stipulates a time limit for doing anything, the time limit specified cannot be enlarged, expanded, extended or moved and anything done outside the time so fixed by the Constitution is illegal and unconstitutional. See the case of BRIG-GEN MOHAMMED BABA MARWA & ANOR V. ADMIRAL MURTALA NYAKO & ORS (2012) 6 NWLR (PT. 1296) 199. PER ABOKI, J.C.A.

STATUTE OF LIMITATION
The general principle of law, as settled by decisions of the Supreme Court and this Court, is that if a statute prescribes a period of time for the institution of an action or a suit, the action or suit shall not be commenced outside the time prescribed by the statute. Any action or suit that is brought after or outside the prescribed period is said to be statute-barred. See the cases of;
SOSAN V. ADEMUYIWA (1986) 3 NWLR (PT. 27) 241; ODUBEKO V. FOWLER (1993) 7 NWLR (PT. 308) 637; NIGERIAN PORTS AUTHORITY PLC. V. LOTUS PLASTICS LIMITED & ANOR. (2005)19 NWLR (PT. 959) 158; NATIONAL REVENUE MOBILIZATION ALLOCATION & FISCAL COMMISSION & ORS. V. AJIBOLA JOHNSON & ORS (2019) 2 NWLR (PT. 1656) 247.
Where there is a statute of limitation of action, the time begins to run from the date that the cause of action accrues. And a cause of action accrues on the date in which the incident giving rise to the cause of action occurs. See the cases of;
EBOIGBE V. NNPC (1994) 5 NWLR (PT. 347) 649; OKAFOR V. A.-G; ANAMBRA STATE (2005) 14 NWLR (PT. 945) 210.
The term “cause of action” means the factual base or some factual situation, a combination of which makes the matter in litigation an actionable wrong or an enforceable right. In the recent case of MATHEW IYEKE & 25 ORS. V. PETROLEUM TRAINING INSTITUTE & ANOR. (2019) 2 NWLR (PT. 1656) 217 AT 238 Per AUGIE, JSC; Supreme Court gave a very elaborate meaning of “cause of action” by stating as follows:
“i. A cause of complaint; ii. A civil right or objection for determination by a Court of law; iii. A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine; iv. Consequent damage; v. Every fact which would be necessary for the Plaintiff to prove if traversed in order to support his right to the judgment of the Court. It does not comprise every piece of evidence that is necessary to be proved; vi. All those things necessary to give a right of action whether they are to be done by the Plaintiff or other person; and vii. It is factual situation, which enables one person to obtain a remedy from another in Court in respect of injury.” PER ABOKI, J.C.A.

DETERMINATION OF A CAUSE OF ACTION

To determine whether or not there is a cause of action and/or when the cause of action occurred, it is only the Plaintiff’s originating processes, such as the writ of summons, the statement of claim, the originating summons and the affidavit in support thereof, that should be considered. In MRS. M.B. AMUSAN V. MR. DANIEL OBIDEYI (2005) 14 NWLR (PT. 945) 322 AT 328 PER KUTIGI, JSC (as he then was, later CJN); the Supreme Court stated how to determine whether or not an action was instituted outside the time prescribed by a statute as follows: “If has been decided that the period of limitation is only determinable by looking at the writ of summons and statement of claim alone to ascertain the alleged date of the wrong in question which gave rise to the 1st Respondents cause of action and by comparing that date with the date on with the date on which the Writ was filed. If the time pleaded in the writ of summons or the statement of claim is beyond the period allowed by the limitation law, the action is statute barred.” (Underline mine for emphasis). PER ABOKI, J.C.A.

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the Ruling of the Niger State High Court, sitting at Minna, (herein after referred to as the trial Court) delivered on 16th day of December, 2019 by Hon. Justice Halima I. Abdul Malik in Suit No. NSHC/MN/254/2019.

The Appellant herein was the 1st Defendant at the trial Court, while the 1st and 2nd Respondents were the Plaintiff and the 3rd Defendants respectively.

A Brief summary of the facts of this case resulting in this appeal is that, by an Originating Summons dated 20th day of September, 2019 and filed on the same date the 1st Respondent as Plaintiff at the trial Court sought for the determination of the questions as can be found at pages 1-2 of the record of appeal.

Upon the determination of the said questions, the Plaintiff prayed for the Court for the reliefs, contained at pages 2 to 3 of the record of appeal. The Originating Summons was supported by an affidavit of 9 paragraphs deposed to by the 1st Respondent and exhibits attached.

Upon the receipt of the originating processes in this matter, the 1st and 2nd Defendants at the trial Court filed a

counter affidavit of 18 paragraphs deposed to by one Khaleal Ibrahim Bello, legal Adviser of the 2 Defendant. The 1st and 2nd Defendants also filed a notice of preliminary objection to the hearing of the suit dated 14th October, 2019.

The 1st and 2nd Defendants’ (now appellants) notice of preliminary objection filed on 18/10/2019 was predicated on the following grounds;
A. That the Court pursuant to Section 30 of the Local Government Council amendment Law 2016 Niger State has no Jurisdiction to entertain the complaints.
B. That pursuant to the provision of Section 285(9) of the 1999 constitution, Niger state legal notice no. 2 and the 2019 guidelines for the primary election in contention, the suit is statute barred having been instituted 14 days after the occurrence of the event.

The preliminary objection is supported by an 11 paragraph affidavit deposed to by the 1st appellant with exhibits and is accompanied by a written address urging the Court to strike out the suit for lack of jurisdiction. The 1st respondent as plaintiff also filed a further affidavit in response to the 1st and 2nd appellants Notice of preliminary objection on

18/10/2019. See pages 113-158 of the record of appeal.

On 22/11/2019, the parties adopted all their processes, and the trial Court adjourned for ruling and judgment on the substantive matter. In its ruling delivered on 16th December, 2019 the trial judge found that the instant suit is not caught up by limitation period, and accordingly dismissed the 1st and 2nd defendants’ preliminary objection, while on the substantive matter the trial Court called for oral evidence with a view to resolving the conflicting deposition in the affidavits of the parties.

Dissatisfied with the said judgment of the trial Court, the Appellants who were the 1st and 2nd Defendants at the trial Court filed their Notice of Appeal dated 24th day of December, 2019 on the same date. The Notice of Appeal which appears on pages 243-254 of the record of appeal contains 4 grounds of appeal.

The record of appeal was compiled and transmitted to this Court on 6/1/2020. The briefs of argument were subsequently filed and exchanged by the parties in accordance with the rules of Court.

On 17th February, 2020, the appeal was heard. The Appellants’ Counsel adopted the

Appellants’ brief of argument and urged the Court to allow the appeal. While the 1st Respondent’s Counsel on his part adopted the 1st Respondent’s brief of argument and urged the Court to dismiss the appeal and upheld the decision of the trial Court. The 2nd Respondent has not participated or filed any brief of argument in this appeal.

The Appellant from his 4 grounds of appeal distilled two issues for determination as follows:
1. Whether the Lower Court was right in its holding that the cause of action arouse (sic) on the 9th day of September, 2019 in view of the fact that paragraph 11 of the 2nd appellant’s guidelines was not invokable by the plaintiff/1st respondent on the basis that he (1st respondent) was not disqualified by the screening committee? (Distilled from grounds 1, 2 and 4 of the Notice of Appeal).
2. Whether in the circumstances of this case, the lower Court was precluded from recoursing (sic) the counter affidavit/affidavit of the appellants/defendants in reaction to the affidavit in support of the originating summons and notice of preliminary objection respectively to determine the accrual date of the

cause of action? (Distilled from ground 3 of the Notice of Appeal).

The 1st Respondents on his part adopts the two issues formulated by the appellants for determinationof this appeal.

Therefore, I will determine this appeal on the basis of the two issues raised in the Appellants’ Brief of Argument. The two issues will be taken together.
ISSUE ONE & TWO (Taken together)
Whether the Lower Court was right in its holding that the cause of action arouse on the 9 day of September, 2019 in view of the fact that paragraph 11 of the 2nd appellant’s guidelines was not invokable by the plaintiff/1st respondent on the basis that he (1st respondent) was not disqualified by the screening committee? (Distilled from grounds 1, 2 and 4 of the Notice of Appeal).
AND
Whether in the circumstances of this case, the lower Court was precluded from recourcing (sic) the counter affidavit/affidavit of the appellants/defendants in reaction to the affidavit in support of the originating summons and notice of preliminary objection respectively to determine the accrual date of the cause of action? (Distilled from ground 3 of the Notice of Appeal).

Learned counsel for the Appellant submitted that cause of action consists of every fact which would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment, and in order to determine a cause of action, Courts are enjoined to examine the writ of summons and statement of claim of the plaintiff. He contended that the relevant Paragraphs in support of the originating Summons are paragraphs 4, 5 & 6 and in the reliefs sought are paragraphs a, b & c. He referred the Court to the cases of;
AWEKE VS. NNAMDI AZIKIWE UNIV. AWKA (2018) ALL FWLR PT. 914 PG 171.
OJUKWU VS. REG. T.A.L.B.O.N (2016) ALL FWLR PT. 829 PG 1181.

He maintained that since the affidavit in support of the originating summons and the reliefs sought by the 1st respondent/plaintiff questions the qualification of the 1st appellants participation in the primary election, the 1st respondent grievance arose before the day of the primary i.e. 9th day of September, 2019, it will revert to the date the screening committee cleared all the aspirants including the 1st appellant to participate in the primary election.

He submitted that in the construction of a document, it is the whole document that is considered and not the heading of a document or its paragraphs in isolation. He referred the Court to the cases of;
ADAMS VS. UMAR (2010) ALL FWLR PT. 513 PG 1289.
FGN VS. DARIYE (2013) ALL FWLR PT. 673 PG 1902.
NIGERIA MERCHANT BANK PLC VS. GARBA ALL FWLR PT. 688 PG 1604.

He argued that the conclusion of the trial Court that the plaintiff’s case excluded the process of screening is not true reflection of what the complaint of the 1st respondent is from the affidavit in support of the originating summons.

He insisted that the plaintiff/1st respondent did not question the conduct of the primary election or the result of the said primary election, and the appellant’s nomination which he questions is tied to his participation in the primaries.

He added that the accrual date of the cause of action would be the date a decision was taken concerning the eligibility of the 1st appellant to participate in the 2nd appellant primary election.

Learned counsel contended further that the law did not foreclose an examination of the statement of defence

where the plaintiff’s process disclosed the cause of action in the process he had filed, but failed or is evasive on the date the said cause of action accrued, and the defendant has alleged that the suit was filed outside the stipulated time line provided by the statute on the point.

He submitted that while the primary election took place on the 9th day of September, 2019, the issue of qualification of aspirants to participate in the primary election was settled by the 2nd appellant vide subjecting the aspirants to a screening committee the 2nd appellant put in place to determine their eligibility to participate in the primary election. He referred the Court to Section 11 of the guidelines of the 2nd appellant (Exhibit D). He argued that since the screening committee of the 2nd appellant was put in place to determine the qualification of the aspirants for the office in contention, and the 1st respondent’s complaint is that the 1st appellant was not qualified to contest, the implication is that the 1st respondent is challenging the decision of the screening committee.

He maintained that since the 1st respondent did not state the date of

the decision of the screening committee on the point and the appellants contend that at the time the suit was instituted outside the timeline, the burden is on appellants to prove that the suit is statute barred. In discharging the said burden, the appellants in their counter affidavit stated that the date of the publication of the screening committee to be the 4th day of September, 2019 which date has not been denied by the 1st respondent.
He referred the Court to the cases of;
ADEBOYE VS. BAJE (2016) ALL FWLR PT. 845 PG 79,
MABAMIJE VS. OTTO (2016) ALL FWLR PT. 828 PG 883,
ODUBEKO VS. FOWLER (1993) 7 NWLR PT. 308 PG 637.
SAVANNAH BANK VS. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD & ANOR. (1987) LPELR- 3021 SC.
TEXACO VS. SHELL (2002) 2 SCNJ PG 102.

On whole, he urged the Court to resolve these issues in favour of the appellant.

The 1st respondent counsel on his part submitted on behalf of the 1st respondent that as at the 9th day of September, 2019 when the 2nd appellant primary election was conducted the 1st appellant was not qualified to contest. He referred the Court to pages 1-5 of the record of appeal.

He contended that it is only after the outcome of the primary election where an unqualified candidate was returned elected that a cause of action arose. Therefore, the trial Court was right when it held that the cause of action arose on 9th day of September, 2019 when the result of the 2nd appellant’s primary election was announced and the 1st appellant was returned as the winner. He referred the Court to the cases of;
BELLO VS. YUSUF (2019) LPELR-47918 SC.
TEIBOGREN VS. GOV. DELTA STATE (2014) 31 WRN CA AT 161.

He argued that the date the cause of action arose is stated in the originating summons as 9/9/2019, and it is only when the plaintiff’s case did not disclose when the cause of action arose that the defendant may plead when the cause of action arose, which is not the case here. He referred the Court to the cases of;
COUTROUPIS & ANOR VS. MOSES & ANOR (2018) LPELR 44117 CA.
OLATERU & ORS VS. OPIC (2018) LPELR 44874 CA.
JOSEPH VS. HUNPE & ORS (2019) LPELR 47525 CA.
He urged the Court to resolve all the issues against the appellants and in favour of the 1st respondent.

In resolving this issue, it is pertinent for me to reproduce Section 30 of the Niger State Local Government Council Election Law 2002, for ease of reference. It provides as follows:
“Notwithstanding the provisions of this law or the rules of political party, an aspirant who complains that any of the provisions of this law and the guidelines of a political party has not been compiled with in the selection or nomination of a candidate of a political party for election, shall within 14 days of the non-compliance complained of, apply to the High Court of Niger State for redress.”
The above law is, very clear, plain, straightforward and unambiguous. The law is trite that where the words used in the Constitution or a statute is clear and unambiguous, the provisions should be interpreted by attaching to the words used by the legislature their ordinary grammatical meaning; unless such an interpretation may result in an absurdity. See the cases of;
AHMED V. KASSIM (1958) 3 FSC 51; (1958) SCNLR 28;
YEROKUN V. ADELEKE (1960) 5 FSC 126; (1960) SCNLR 267.
By Section 30 of the Niger State Local Government Council Law 2002, 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”. The implication of the use of the word “shall” by the legislature in Section 30 of the Niger State Local Government Council Law 2002, is that the requirement that pre-election matter shall be filed “within 14 day days from the date” of the occurrence of the event, decision or action complained of in the suit Is mandatory. See the cases of;
AMADI V. INEC (2013) 4 NWLR (PT. 1345) 595;
ACN V. INEC (2013) 13 NWLR (PT. 1370) 161.
The law, as settled by the Supreme Court, is that when a statute, such as Section 30 of the Niger State Local Government Council Law 2002, stipulates a time limit for doing anything, the time limit specified cannot be enlarged, expanded, extended or moved and anything done outside the time so fixed by the Constitution is illegal and unconstitutional. See the case of BRIG-GEN MOHAMMED BABA MARWA & ANOR V. ADMIRAL MURTALA NYAKO & ORS (2012) 6 NWLR (PT. 1296) 199.
Therefore, in order to determine whether a pre-election suit was filed within 14 days as

stipulated by Section 30 of the Niger State Local Government Council Election Law 2002, the Court ought to examine the originating processes in the claimant’s suit to determine “the date of the event, decision or action complained of in the suit”. The general principle of law, as settled by decisions of the Supreme Court and this Court, is that if a statute prescribes a period of time for the institution of an action or a suit, the action or suit shall not be commenced outside the time prescribed by the statute. Any action or suit that is brought after or outside the prescribed period is said to be statute-barred. See the cases of;
SOSAN V. ADEMUYIWA (1986) 3 NWLR (PT. 27) 241; ODUBEKO V. FOWLER (1993) 7 NWLR (PT. 308) 637; NIGERIAN PORTS AUTHORITY PLC. V. LOTUS PLASTICS LIMITED & ANOR. (2005)19 NWLR (PT. 959) 158; NATIONAL REVENUE MOBILIZATION ALLOCATION & FISCAL COMMISSION & ORS. V. AJIBOLA JOHNSON & ORS (2019) 2 NWLR (PT. 1656) 247.
Where there is a statute of limitation of action, the time begins to run from the date that the cause of action accrues. And a cause of action accrues on the date in

which the incident giving rise to the cause of action occurs. See the cases of;
EBOIGBE V. NNPC (1994) 5 NWLR (PT. 347) 649; OKAFOR V. A.-G; ANAMBRA STATE (2005) 14 NWLR (PT. 945) 210.
The term “cause of action” means the factual base or some factual situation, a combination of which makes the matter in litigation an actionable wrong or an enforceable right. In the recent case of MATHEW IYEKE & 25 ORS. V. PETROLEUM TRAINING INSTITUTE & ANOR. (2019) 2 NWLR (PT. 1656) 217 AT 238 Per AUGIE, JSC; Supreme Court gave a very elaborate meaning of “cause of action” by stating as follows:
“i. A cause of complaint; ii. A civil right or objection for determination by a Court of law; iii. A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine; iv. Consequent damage; v. Every fact which would be necessary for the Plaintiff to prove if traversed in order to support his right to the judgment of the Court. It does not comprise every piece of evidence that is necessary to be proved; vi. All those things necessary to give a right of action whether they are to be done by the Plaintiff or

other person; and vii. It is factual situation, which enables one person to obtain a remedy from another in Court in respect of injury.”
In this case, while the 1st Respondent’s counsel contended that the date of clearance of the 1st appellant by the 2nd appellant’s screening committee on 4th September, 2019 constitutes the cause of action in this suit, the Appellant’s counsel on his part contended that the cause of action arose on 9th September, 2019 when the result of the 2nd appellant’s primary election was announced and the 1st appellant was returned as the winner.
To determine whether or not there is a cause of action and/or when the cause of action occurred, it is only the Plaintiff’s originating processes, such as the writ of summons, the statement of claim, the originating summons and the affidavit in support thereof, that should be considered. In MRS. M.B. AMUSAN V. MR. DANIEL OBIDEYI (2005) 14 NWLR (PT. 945) 322 AT 328 PER KUTIGI, JSC (as he then was, later CJN); the Supreme Court stated how to determine whether or not an action was instituted outside the time prescribed by a statute as follows:

“If has been decided that the period of limitation is only determinable by looking at the writ of summons and statement of claim alone to ascertain the alleged date of the wrong in question which gave rise to the 1st Respondents cause of action and by comparing that date with the date on with the date on which the Writ was filed. If the time pleaded in the writ of summons or the statement of claim is beyond the period allowed by the limitation law, the action is statute barred.” (Underline mine for emphasis)
In this case, the 1st respondent as Plaintiff at the trial Court deposed in the affidavit in support of his originating summons that he was an aspirant and contested the 2nd appellant’s primary election for the local government election to be conducted by the 2nd respondent; that the 1st appellant was unlawfully returned as the winner and candidate of the 2nd appellant, because as at the 9th day of September, 2019 when the primary election was held, the 1st appellant was not a registered member of the 2nd appellant; See paragraphs 3, 4 & 5 of the affidavit in support of the originating summons on pages 6-7 of the record of appeal.

It is trite law that it is only when the plaintiffs originating processes did not disclose or state when the cause of action arose that the defendant may plead a date when the cause of action arose. See the case of JOSEPH VS. HUNPE & ORS SUPRA. In the instant case, the date the cause of action arose is clearly stated in the originating processes as 9th September, 2019.
Therefore, as can be seen from the originating processes, the 1st respondent’s cause of action crystallized on the 9th day of September, 2019 when the primary election of the 2nd appellant took place with the 1st appellant participating and in violation of the 2nd appellant’s guidelines he was declared the winner.
It is my view that there cannot be complete cause of complaint or complete factual base or some factual situations, a combination of which makes the matter in litigation an actionable wrong, before the emergence of the 1st appellant as the winner of the 2nd appellant’s primary election. The Niger State Local Government Councils Election Law 2002 (as amended) provides for the procedure for the nomination of candidates by Political Parties for Local Government Councils

elections. In this case, in addition to its Constitution, the 2nd appellant had provided the guidelines for the nomination of candidates for the Local Government Councils’ elections. I think it is natural and normal for series of events to occur and sundry actions and decisions to be taken in the process of a primary election. However, it is the event and decision or action which is complained of in a pre-election case by the Plaintiff that ought to determine, and it actually determines the cause of action. Time, therefore, should begin to run from the date of the event, action or decision actually complained in the suit. In this case, the event, action or decision relied upon by the 1st Appellant, is at best the penultimate action, decision or event referred by the 1st respondent. The action, decision or event of the 4th day of September, 2019, heavily relied upon and copiously cited by the 1st appellant is not the relevant action, decision or event for purposes of calculating the time limited by Section 30 of the Niger State Local Government Councils Election (amendment) Law 2016 in this case. The ultimate event, decision or action in this case

occurred on the 9th day of September, 2019 and that is the relevant date for the calculation of the 14 days’ time limit specified by the Constitution.
Having regard to the facts pleaded by the 1st respondent/plaintiff, the “action”, “decision” or “event” he complained in his suit was the declaration of the 1st Respondent as the winner of the 2nd appellant’s primary election as its candidate for the Bosso Local Government Council election. This ‘action”, “decision” or “event”, according to the 1st respondent, occurred on the 9th day of September, 2019. Therefore, by a simple arithmetical calculation, the 1st respondent’s suit filed on the 20th day of September, 2019 was filed within 11 days from the event, decision or action of the 9th day of September, 2019 complained of by the 1st respondent in his suit and within the 14 days stipulated by the Niger State Local Government Council Law 2002.
It should be noted that by Section 30 of the Niger State Local Government Council Law 2002, it is the date of the occurrence of “the event, decision or action

complained of in the suit” that will determine when the cause of action accrues. In this context, since there are variety of circumstances, facts and situations, each case ought to be considered and determined within the peculiarity of its own facts and circumstances.

In view of all the above issues one and two are resolved against the appellant and in favour of the 1st respondent.

Having resolved issues 1 and 2 in this appeal against the appellants, this appeal is adjudged by me to be unmeritorious and it is hereby dismissed. The decision of the trial Court in suit No. NSCH/MN/254/2019 is hereby upheld.
There shall be no order as to costs.

PETER OLABISI IGE, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM, J.C.A.(DISSENTING): I had a preview of the judgment delivered by my Learned brother Lord Justice Abdu Aboki, JCA.

It is S. 30 of the Niger State Local Government Election Law 2002 that determines whether or not a suit flied in the High Court of Niger State for redress of non-compliance with the Niger State Local Government Election Law or the guideline of a political party in the selection or nomination of the

political party’s candidate for a general local government election was filed within the 14 days prescribed by it for bringing such actions. The exact text of that provision states thusly-
“Notwithstanding the provisions of this law or the rules of political party, an aspirant who complains that any of the provisions of this law 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, shall within 14 days of the non-compliance complained of, apply to the High Court of Niger State for redress.”
It is clear from this provision that the 14 days period within which such a suit should be filed is to be reckoned from the date of the non-compliance complained of.
The questions to be considered here are – What is the non-compliance complained of and when did it occur. Without determining these questions, it would be impossible to determine if the suit was filed or not filed within 14 days of the non-compliance complained.
Paragraphs 4, 5 and 6 of the affidavit In support of the originating summons state thusly-

“4. That the 1st Defendant was unlawfully returned as the winner and candidate of the 2nd Defendant’s Primary Election for the Local Chairmanship election to be conducted by the 3rd Defendant In November, 2019 for Bosso Local Government of Niger State, because, as at the 9th day of September, 2019 when the Chairmanship Primary Election for Bosso Local Government was held, the 1st Respondent was not a registered member of the 2nd Respondent for up to two years before the date of the Primary Election.
5. That, as at the 9th day of September, 2019 when the Chairmanship Primary Election for Bosso Local Government of Niger State was held, the 1st Defendant’s participation at the Primary Election and nomination as the flag bearer of the 2nd Defendant for Bosso Local Government was in breach of the 2nd Defendant’s Guidelines.
A copy of the Guidelines for the Nomination of Candidates for Public Office in Niger State issued by the 2nd Defendant is hereby attached as Exhibit “D”.
6. That by a letter titled APPEAL AGAINST UNLAWFUL RETURN OF ABUBAKAR GOMNA AS BOSSO LOCAL GOVERNMENT CHAIRMANSHIP CANDIDATE OF APC IN THE PRIMARY ELECTION HELD ON 9TH

SEPTEMBER, 2019 dated 10th September, 2019 addressed to the Chairman, Chairmanship Electoral Appeal Committee of the 2nd Defendant, within 24 hours of the Primary Election, I registered my appeal/grievances against the Chairmanship Primary Election for Bosso Local Government essentially, on the ground that the 1st Defendant that was declared as the winner was not qualified for nomination to contest the Local Government Election to be conducted by the 3rd Defendant in November, 2019 for Basso Local Government.
A copy of my letter 2019 dated 10th September, 2019 addressed to The Chairman, Chairmanship Electoral Appeal Committee of the 2nd Defendant is hereby attached as Exhibit “E”.
It is glaring from these paragraphs of the said affidavit that the non-compliance complained of is clearance of the 1st appellant to contest the primary election of the party, when as contended by the 1st respondent (plaintiff) he was not a member of the political party and so was not qualified to participate in the primary election to nominate the party’s candidate for the election.
It is glaring from those paragraphs of the affidavit in support of the

originating summons that the said clearance took place on 4-9-2019. The primary election held on 9-4-2019 and the 1st appellant emerged the winner of that primary election and was nominated as candidate of the party. Even though the action was filed after the primary election, the non-compliance complained about in the suit was clearing the 1st appellant to participate in the primary election on 4-9-2019.
So the 14 days period within which a suit can be flied under Section 30 of the Local Election Law of Niger State should be reckoned from 4-9-20 19 and not 9-4-2020, the date of the primary election. It is obvious from the originating processes, that the 1st respondent did not complain about the primary election of 9-9-2019. His complaint is that the 1st appellant not being a member of the political party, was not qualified to participate in the party’s primary election of its candidate for the general election and so should not have been cleared to participate in the said primary election. 14 days from 4-9-2019, expired on 18-9-2019. So the suit was filed out of time on 20-9-2019. It is therefore statute barred.
The trial Court lacked the

jurisdiction to entertain and determine it. It ought to have struck It out. The ruling of the trial Court on 16-12-2019 that the action is not statute barred is hereby set aside. It has no jurisdiction to entertain and hear the suit. It is hereby struck out.
Issue No. 1 in the appellant’s brief is resolved in favour of the appellant.

Having held that the action was statute barred, that the trial Court lacks the jurisdiction to entertain and hear it, and having struck it out, no useful purpose would be served considering issue No. 2 in the appellant’s brief.

On the whole, this appeal succeeds as it has merit. It is accordingly allowed.

The ruling of the High Court of Niger State delivered on 16-12-2019 by Halima I. Abdul Malik J., in Suit No. NSHC/MN/254/2019 is hereby set aside. The said suit No. NSHC/MN/254/2019 Is hereby struck out.
I make no order as to costs.

Appearances:

Hamidu M. Tukur For Appellant(s)

S. Emejulu with him, A.Y. Mundi – for the 1st Respondent.

2nd Respondent absent and unrepresented For Respondent(s)