HON. AMINU IBRAHIM MALLE v. KASIMU BELLO MAIGARI & ORS (2019)

HON. AMINU IBRAHIM MALLE v. KASIMU BELLO MAIGARI & ORS

(2019)LCN/13043(CA)

In The Court of Appeal of Nigeria

On Monday, the 8th day of April, 2019

CA/YL/27/2019

RATIO

THE EFFECT OF A PARTY ACCEPTING A WRONG PROCEDURE

It is the law that where a beneficiary of a rule failed to challenge the correctness of the procedure at the commencement of the proceedings, the adoption of a wrong procedure will be a mere irregularity and will not render the entire proceedings a nullity. See Duke vs. Akpabuyo Local Government 2005 LPELR-963 SC. When a defendant or his counsel appears in Court and fails to raise the issue of non service or improper service he will not be allowed later to raise the issue to challenge the competence of the suit as that would only be treated as a mere irregularity. As pointed out by learned counsel for the Appellant, on the 4th March, 2019 when the Court sat, learned counsel for the 1st Respondent informed the Court that he was not served with the record in this appeal. He did complain that he was not served with the notice of appeal.PER JAMES SHEHU ABIRIYI, J.C.A.

CAUSE OF ACTION: WHEN DOES A CAUSE OF ACTION RISE

A cause of action originates from the date on which the incident which gave rise to the cause of action occurred. See Fadare vs. Attorney-General, Oyo State (1982) 4 SC 1.
In the instant appeal, learned counsel for the Appellant contends that the cause of action arose from 5th October, 2018 when the primary election was held. But learned counsel for the 1st Respondent has vigorously contended that it is the date, that is 18th October 2018, that the name of the Appellant was submitted to the 3rd Respondent, instead of the 1st Respondent that the cause of action arose.PER JAMES SHEHU ABIRIYI, J.C.A.

CAUSE OF ACTION: DEFINITION
A cause of action is defined among other meanings to be a state of facts that entitles a party to maintain an action. See Blacks Law Dictionary 10th Edition.PER JAMES SHEHU ABIRIYI, J.C.A.

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

HON. AMINU IBRAHIM MALLE Appellant(s)

AND

1. KASIMU BELLO MAIGARI
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 8th February, 2018 in the Federal High Court holden at Jalingo, Taraba State.

The Appellant was the 1st Defendant at the Federal High Court (Court below) while the 2nd and 3rd Respondents were the 2nd and 3rd Defendants. The 1st Respondent was the Plaintiff.

In the Originating Summons taken out by the 1st Respondent against the Appellant, 2nd and 3rd Respondents, the 1st Respondent sought for the determination of the following three questions.
1. WHETHER the Plaintiff who was the Aspirant of the 2nd Defendant that scored the highest number of votes cast at the Primary Election conducted by the 2nd Defendant on 5th October, 2018 to elect a candidate to be sponsored by the 2nd Defendant for the Jalingo/Yorro/Zing Federal Constituency Election into the House of Representatives of the National Assembly of the Federal Republic of Nigeria in the election to be held by the 3rd Defendant in February 2019 is entitled to have his name submitted to the 3rd Defendant as its candidate having regard to the provisions of Section

31(1), 35 and 87(1),(2),(3)&(4)(c)of the Electoral Act 2010 (as amended)?
2. WHETHER the purported submission of the name of the 1st Defendant by the 2nd Defendant to the 3rd Defendant as its candidate for the Jalingo/Yorro/Zing Federal Constituency Election into the House of Representatives of the National Assembly of the Federal Republic of Nigeria slated by the 3rd Defendant for February 2019 is a violation of the Provision of Section 87(4)(c) of the Electoral Act 2010 (as amended)?
3. WHETHER the 2nd Defendant can validly ignore, disregard and/or refuse to be bound by the result of the primary election conducted by it on 5th October, 2018 wherein the Plaintiff scored the highest number of votes cast, when the Plaintiff has not withdrawn his candidature and not given any hearing on the decision (if any) to ignore or disregard and/or annul the result of the primary election as aforesaid contrary to the provision of Section 35 of the Electoral Act 2010 (as amended) and Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)?

Upon the determination of the questions the 1st Respondent sought for the following:

1. A DECLARATION of this Honourable Court that the submission of the name of the 1st Defendant by the 2nd Defendant to the 3rd Defendant as the candidate of the 2nd Defendant to contest the election into the House of Representatives of the National Assembly of the Federation for Jalingo/Yorro/Zing Federal Constituency is a violation of the provisions of Section 35 and 87(1), (2), (3) & (4)(c) of the Electoral Act 2010 (as amended).
2. A DECLARATION of this Honourable Court that the 2nd Defendant cannot ignore and/or refuse to recognize the result of the primary election conducted by it on 5th October, 2018 wherein the Plaintiff won the majority of the lawful votes cast.
3. A DECLARATION of this Honourable Court that having won the primary election conducted by the 2nd Defendant on 5th October, 2018 by scoring the majority of lawful votes cast, the Plaintiff is entitled to have his name submitted to the 3rd Defendant as its candidate for Jalingo/Yorro/Zing Federal Constituency in the National Assembly election of the Federal Republic of Nigeria slated for February 2019 by the 3rd Defendant.
4. AN ORDER of this Honourable Court restraining the

1st Defendant from parading himself as the candidate of the 2nd Defendant for the election into the House of Representatives of the Federal Republic of Nigeria for Jalingo/Yorro/Zing Federal Constituency in the election slated for February 2019 by the 3rd Defendant.
5. AN ORDER of this Honourable Court directing the 2nd and 3rd Defendant for Jalingo/Yorro/Zing Federal Constituency in the election into the House of Representatives of the National Assembly of the Federal Republic of Nigeria slated for February 2019 by the 3rd Defendant.
6. AN ORDER of this Honourable Court restraining the 2nd and 3rd Defendants from recognizing, accepting or treating the 1st Defendant as the candidate of the 2nd Defendant for Jalingo/Yorro/Zing Federal Constituency in the election into the House of Representatives of the National Assembly of the Federal Republic of Nigeria slated for February 2019 by the 3rd Defendant.

Primary election to select candidates for the National Assembly Elections conducted by the 3rd Respondent on 23rd February, 2019 were conducted on 5th October 2018. The Appellant was among those who contested the primary election for

Jalingo/Yorro/Zing to Federal Constituency. According to the 1st Respondent, he won a majority of the lawful votes cast at the primary election. However, on 18th October, 2018 the 2nd Respondent instead of forwarding the name of the 1st Respondent to the 3rd Respondent as the candidate for Jalingo/Yorro/Zing Federal Constituency forwarded the name of the Appellant.

In view of this, on 31st October, 2018 the 1st Respondent commenced an action at the Court below to challenge the wrongful submission of the name of the Appellant instead of the 1st Respondent?s name to the 3rd Respondent.

The Appellant?s main defence to the action was that the 1st Respondent?s originating summons was filed out of time because in his calculation the time limited for the 1st Respondent to file his action started running on 6th October, 2018 when the result of the primary election was declared and not when the name of the Appellant was submitted to the 3rd Respondent by the 2nd Respondent.

After considering the affidavit evidence of the parties and written addresses of learned counsel for the parties, the Court below entered judgment in favour of the

1st Respondent. The Appellant has approached this Court challenging the decision of the Court below by notices of appeal filed 11th February, 2018, 19th February 2019 and an amended notice of appeal filed on 29th March, 2019 but deemed duly filed and served on 3rd April, 2019. The amended notice of appeal contains thirteen (13) grounds of appeal.

The Appellant filed an amended brief of argument on 29th March, 2019 which was deemed duly filed and served on 3rd April, 2019.

From the 13 grounds of appeal the Appellant in his amended brief formulated the following seven (7) issues for determination:
(a) Whether the 1st Respondent?s suit filed at the lower Court is a Pre-Election matter within the meaning of Section 285 (14) (a) of the Fourth Alteration Act (No. 21) Act, 2017 to the 1999 Constitution as amended and ought to be filed within 14 days as provided under Section 285 (9) of the same Fourth Alteration Act to the 1999 Constitution of Nigeria as amended and whether the lower Court has the jurisdiction to hear and determine the suit. (Grounds 1, 2, 3, 4, 5 and 6 of the Notice of Appeal).

(b) Whether having regard to the facts contained in the Affidavit and Further Affidavits of the 1st Respondent in Support of the Originating Summons vis a vis the Counter Affidavit of the Appellant and Further Counter Affidavit of the Appellant and the 2nd and 3rd Respondents Counter Affidavits, the originating summons is fit or suitable for the determination of the suit. (Ground 7 of the Notice of Appeal).
(c) Whether the right to fair hearing of the Appellant has not been breached, when the lower Court abandoned the Further and Better Affidavit of the appellant without adjudicating or ascribing any probative value on them and refused or neglected to rule on the Motion on notice of the Appellant NO. FHC/JAL/M/79/2018 having been moved on the 6th February, 2019. (Ground 8, 9 and 11 of the Notice of Appeal).
(d) Whether the Learned trial Judge erred in law when he granted the cost of N300, 000.00 (Three Hundred Thousand Naira Only) against the Appellant (Ground 10 of the Notice of Appeal).
(e) Whether the lower Court and the 1st Respondent are entitled to use that facts and other exhibits attached to the Counter Affidavit of the Appellant filed on the 16 November, 2018 which has been

withdrawn and struck out by the lower Court to adjudicate on the 1st Respondent suit and grant the reliefs sought by the 1st Respondent (Ground 12).
(f) Whether the trial Court was right when it discountenance Exhibit A4 attached to the Counter Affidavit of the 2nd Respondent pursuant to Section 160 of the Evidence Act 2011 (Ground 13).

The 1st Respondent filed an amended notice of preliminary objection which he argued at page 5 ? 9 and formulated the following four issues in the main appeal:
1. WHETHER the 1st Respondent?s Originating Summons filed on 31st October, 2018 was filed within 14 days of the accrual of the 1st Respondent?s cause of action?
(Distilled from Grounds 1, 2, 3 and 4 of the Appellant?s Grounds of Appeal).
2. WHETHER the Federal High Court has jurisdiction over the subject matter of the 1st Respondent?s Originating Summons? (Distilled from Grounds 5 and 6 of the Appellant?s Grounds of Appeal).
3. WHETHER regard being had to the state of the Affidavit evidence of the parties before the trial Court, the trial Court was wrong in its decision to determine the suit on Originating

Summons procedure and granted the relief sought by the 1st Respondent? (Distilled from Grounds 7, 8 and 9 of the Appellants Grounds of Appeal).
4. WHETHER the Learned trial Judge properly exercise his discretion when he awarded the 1st Respondent the cost of Three Hundred Thousand Naira (N300, 000.00) only after declaring the 1st Respondent entitled to his claim?
(Distilled from Ground 10 of the Appellant?s Grounds of Appeal).
5. WHETHER there was still any life issue regarding the Appellants Motion No.FHC/JAL/M/79/2018 at the hearing of the Originating Summons on 1st February, 2019? (Distilled from Ground 11 of the Appellants Grounds of Appeal).
6. WHETHER the trial Court and the 1st Respondent were entitled to use the counter affidavit of the Appellant filed on 16th November 2018 after the 1st Respondent obtained certified true copy of the Counter Affidavit and attached same to his further and better affidavit? (Distilled from Ground 12 of the Appellants Grounds of Appeal).
7. WHETHER the trial Court was right on the decision reached by the Court on Exhibit A4 attached to the Counter

Affidavit of the 2nd Respondent (Distilled from Ground 13 of the Appellant?s Grounds of Appeal).

The Appellant filed a reply brief on 13th March, 2019. It was deemed duly filed on 5/4/19.

Appellant also filed on 5/4/2019 an amended counter affidavit in opposition to the 1st Respondent?s affidavit in support of the Amended Notice of Preliminary Objection.

Arguing the preliminary objection, learned counsel for the 1st Respondent complained that the notice of appeal when filed was not served on the 1st Respondent and he was not invited for the compilation of the record contrary to Order 8 Rules 2 and 3 of the Court of Appeal Rules.

It was his submission that there can be no appeal before an appellate Court unless the notice of appeal is first served on the adverse party before the compilation of record and the adverse party is given the opportunity to participate in the compilation of the record. It was submitted that once it is established that the notice of appeal was not served before compilation of record, the appeal is rendered incompetent. The Court was referred to Adegbola vs. Osiyi (2017) 269 LRCN 1 and NUT vs. Habu & 4 Ors (2018) 15 NWLR (Pt. 1642) 381 at 391 ? 394.

On ground 2 of the 1st Respondent?s preliminary objection, it was contended that the Appellant argued the appeal based on the notice of appeal filed on 18th February, 2019 even though he had amended the notice of appeal with the leave of the Court. It was his submission that the brief of argument is now based on a notice of appeal which is incapable of invoking the jurisdiction of Court. Therefore the appeal is rendered incompetent.

In his reply to the preliminary objection, learned counsel for the Appellant submitted on ground one that the service of Court process is a question of fact.

The Court was referred to Order 2 Rules 1 (A) and (B) and Rules 7 and 8 of the Court of Appeal Rules 2016.

It was submitted that the case of Adegbola vs. Osiyi (supra) referred by learned counsel for the 1st Respondent is not applicable to this case.

It was submitted that the Respondent is estopped from raising the issue of non service because he appeared in Court on 4/2/2019 and failed to raise the issue of non service.

On the argument that the Appellant in the amended brief indicated that he was relying on notice of appeal filed on 18/2/19, learned counsel for the Appellant pointed out that his application to amend the notice of appeal having been granted on 3rd April, 2019, the reference to the earlier notice of appeal was a mere slip. He pointed out that all the issues in the amended notice of appeal were formulated from all the grounds in the amended notice of appeal.

The 1st Respondents was therefore merely trying to rely on mere technicality, it was submitted.

On issue 1 of the main appeal, learned counsel for the Appellant submitted that where a Court lacks jurisdiction, any proceedings conducted are a nullity and liable to be set aside. He referred the Court to some authorities.

The originating summons, it was submitted, shows that the suit arose from primary election and the Court below wrongly computed 14 days provided by Section 285 (9) of the Constitution (as amended) from the date 2nd Respondent forwarded the name of the Appellant to the 3rd Respondent. It was submitted that time began to run from the date of the primary election or from the date of the declaration of the result.

It was submitted that where an action is statute barred, the action is worthless. The Court was referred to the unreported decision of the Supreme Court in Toyin vs. Peoples Democratic Party & 3 Ors.

On issue 2, it was submitted that from the affidavit evidence before the Court below, the facts were hostile and parties ought to have been asked to call witnesses.

On issue 3, it was submitted that the Appellant was not given fair hearing in the Court below since his further and better counter affidavit was not considered.

On issue 4, it was submitted that the costs of N300, 000.00 awarded against the Appellant was a bonus and was not granted on sound principles of law.

On issue 5, it was submitted that the Court below erred when it relied on processes that had been struck out. The Court was referred to Nweke vs. INEC 7 Ors (2016) LPELR-(2016) LPELR-4125 CA, Maigari & Ors vs. Adama & Ors (2016) LPELR-40774 CA. And NUC vs. Alli (2014) 3 NWLR (Pt. 1393) 33 CA.

On issue 6, it was submitted that the Court below erred when it discountenanced Exhibit A4 on the ground that it was altered and this occasioned a miscarriage of justice against the Appellant.

On his own part, learned counsel for the 1st Respondent submitted that the 1st Respondent?s cause of action arose when the name of the Appellant was submitted to the 3rd Respondent on the 18th October, 2018. The Court was referred to the claim of the 1st Respondent in the Court below.

On the 1st Respondents issue 2, it was submitted that the Court below has jurisdiction to entertain the claim by virtue of Section 87 (9) of the Electoral Act. The Court was also referred to Gassol vs. Tutare (2015) All FWLR (Pt. 786) at 497 ? 498 and Lau vs. PDP (2017) WRN 37 at 38.

On issue 3, learned counsel for the 1st Respondent submitted that it is not incumbent on the Court to call for oral evidence where there is enough documentary evidence before the Court. Conflicts in affidavit evidence, it was submitted must be real and not imaginary. The Court was referred toIkedigwe vs. Wong Yuifai (2011) All FWLR (Pt. 598) 845 at 863 ? 864.

It was submitted that the failure to consider Appellant?s Further and Better Counter Affidavit and not ruling on his motion is not a life issue.

On issue 4, it was submitted that a Judge of the Federal High Court is competent to summarily award costs without assessment of damages. In any case, it was submitted nothing has been placed before the Court to show that the award of N300, 000.00 costs is excessive.

On issue 5, it was submitted that the Appellant abandoned motion No FHC/JAL/M/79/2018 which he now wants this Court to hear.

On issue 6, learned counsel for the 1st Respondent submitted that the documents which the Appellant said were used by the Court below after they had been struck out were certified copies obtained and attached and were depositions on oath.

On issue 7 it was submitted that the Court below rightly refused to rely on Exhibit A4 which was altered and this was only one reason for not relying on it. There were also other reasons for not ascribing probative value on it.

appears in Court and fails to raise the issue of non service or improper service he will not be allowed later to raise the issue to challenge the competence of the suit as that would only be treated as a mere irregularity. As pointed out by learned counsel for the Appellant, on the 4th March, 2019 when the Court sat, learned counsel for the 1st Respondent informed the Court that he was not served with the record in this appeal. He did complain that he was not served with the notice of appeal.
The Court cannot therefore strike out the appeal on the issue of non service even if the 1st Respondent was not served with the notice of appeal.

In any case the Appellant in the counter affidavit to the affidavit in support of the preliminary objection deposed to the fact that the 1st Respondent was called on his phone with No 08069800678 to come for settlement of record but he immediately switched off his phone.
Order 2 Rule 1(a) of the Court of Appeal Rules 2016 provides as follows:
Every Notice of Appeal shall subject to the provisions of Order 2 Rules, 7, 8 and 9 be served personally; Provided that if the Court is satisfied that the notice

of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.?
The notice of appeal having been communicated to the 1st Respondent by phone call he cannot complain that he had no notice of the appeal.
?
It was further contended by learned counsel for the 1st Respondent that the Appellant abandoned his amended Notice of Appeal and relied on the Notice of Appeal filed 19th February, 2019. I do not agree because the grounds of appeal which the Appellant married to issues in the amended brief of argument filed on 9th March, 2019 and deemed duly filed on 3rd April, 2019 are the ones contained in the amended notice of appeal. I agree with the learned counsel for the Appellant that what learned counsel for the 1st Respondent quoted from the amended brief was a slip. The attempt to capitalize on the slip was an attempt; as learned counsel for the Appellant rightly pointed out; to pursue a technicality at the expense of substantial justice. A technicality arises if a party quickly takes an immediate available opportunity however small it

may be to work against the merits of the opponent?s case. See Yusuf vs. Adegoke (2007) LPELR-3534 SC.

I do not agree with learned counsel for the 1st Respondent that the appeal is rendered incompetent because of this slip.

It is clear from the foregoing that the preliminary objection should be overruled.
I accordingly hereby overrule the preliminary objection for wanting in merit.
I now turn to the main appeal.

A pre ? election matter is defined in Section 285(14) of the 1999 Constitution FRN (as amended). It is common ground between the parties that this matter is a pre ? election matter.
Section 285(9) of the 1999 Constitution FRN (as amended), provides as follows:
?(9) Notwithstanding anything to the contrary in this Constitution, every pre ? election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.?
For the purpose of limitation of action, time begins to run from the moment the cause of action arose or originated. A cause of action originates from the date on which the incident which gave rise

to the cause of action occurred. See Fadare vs. Attorney-General, Oyo State (1982) 4 SC 1.
In the instant appeal, learned counsel for the Appellant contends that the cause of action arose from 5th October, 2018 when the primary election was held. But learned counsel for the 1st Respondent has vigorously contended that it is the date, that is 18th October 2018, that the name of the Appellant was submitted to the 3rd Respondent, instead of the 1st Respondent that the cause of action arose.
A cause of action is defined among other meanings to be a state of facts that entitles a party to maintain an action. See Black?s Law Dictionary 10th Edition.
A cursory look at the affidavit in support of the originating summons shows clearly that the set of facts that entitled the 1st Respondent to this actions are contained in paragraphs 6, 8, 11, 12, 13, 14, 18 and 21 which all deal with the primary election that held on 5th October, 2018.?
As learned counsel for the 1st Respondent rightly pointed out, only paragraphs 18, 19 and 20 of the affidavit in support of the originating summons deal with the forwarding of the name of the Appellant to the 3rd Respondent.

On the face of the originating summons particularly the affidavit in support, it is not difficult to find that the incident which gave rise to the cause of action was the primary election which held on 5th October, 2018. That was the date on which the cause of action originated. As shown in the case of Fadare vs. A.G Oyo State (supra) the cause of action originates from the date on which the incident which gave rise to the cause of action occurred.
The Court below therefore erred when it held at page 985 of the record of appeal thus:
?Computation of time for the purpose of the Plaintiffs claim started from the date of the submission of the name of the 1st Defendant by the 2nd Defendant to the 3rd Defendant …?
In my view the computation of time for the purpose of the 1st Respondent?s claim started from the 5th October, 2018 when the primary election held.
5th October, 2018 to 31st October, 2018 when the 1st Respondent took out the originating summons is more than the 14 days allowed under Section 285(9) of the Constitution.
Where an action is statute barred, a plaintiff who might have had a cause of

action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action had lapsed. See the Supreme Court decision in Emiator vs. Nigerian Army (1999) 12 NWLR, (Pt. 179) 258.
As the originating summons was commenced outside the time allowed by the Constitution, the Court below had no jurisdiction to entertain it. See the unreported decision of the Supreme Court in Toyin vs. People Democratic Party & 3 Ors SC. 308/2018 delivered on 18th January, 2019. Issue 1 is therefore resolved in favour of the Appellant and against the Respondents and the appeal allowed on this ground alone.
The proceedings and judgment of the Court below in Suit No. FHC/JAL/CS/19/2018 are hereby struck out.

The action before the Court below having been found to be incompetent and therefore struck out there is no basis for considering the remaining issues in the appeal.
Parties shall bear their respective costs of the appeal.

CHIDI NWAOMA UWA, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, JCA.

I agree with the reasoning and conclusion arrived at in over ruling the preliminary objection and allowing the appeal. Also, the order striking out the proceedings and judgment of the trial Court. I also strike out the proceedings and the judgment of the trial Court. I abide by the order made as to costs in the leading judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance a draft copy of the Judgment just rendered by my learned Brother Justice James Shehu Abiriyi JCA. I agree with the reasoning and conclusion therein that the Originating Summons was commenced outside the time allowed by the Constitution. I therefore allow the Appeal on that ground alone. I abide by the consequential orders contained in the lead Judgment.

Appearances:

Abdulhamid Mohammed with him, S. I. Waziri
For Appellant(s)

F. K. Idepefo with him, G. C. Oraekelam and S. I. Simon for the 1st RespondentFor Respondent(s)

Appearances

Abdulhamid Mohammed with him, S. I. WaziriFor Appellant

AND

F. K. Idepefo with him, G. C. Oraekelam and S. I. Simon for the 1st RespondentFor Respondent