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HON. BAMGBOSE HONTONYON JOSEPH v. MR. BABATUNDE HUNPE & ORS (2019)

HON. BAMGBOSE HONTONYON JOSEPH v. MR. BABATUNDE HUNPE & ORS

(2019)LCN/13202(CA)

In The Court of Appeal of Nigeria

On Monday, the 6th day of May, 2019

CA/L/317/2019

 

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

HON. BAMGBOSE HONTONYON JOSEPH Appellant(s)

AND

1. MR. BABATUNDE HUNPE
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Now, the issue of jurisdiction is very fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. It is thus, the law that once an issue of jurisdiction is raised it must be determined first one way or the other by the Court before proceeding if need be to determining the substantive claim. This is so because jurisdiction is radical and sine quo non to adjudication of any matter or action or cause in a Court of law and thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such situation, it has been said, and quite admirably too in my view, that the laborers, that is the Litigants and their counsel on the one side and the Court on the other side would have labored in vain. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Elugbe V. Omokhafe (2004) 18 NWLR (Pt. 905) 319 @ p. 334; Ansa V. RTPCN (2008) 7 NWLR (Pt. 1086) 421 @ p. 448; Gaji V. Paye (2003) 8 NWLR (Pt. 823) 583 @ pp. 599 ? 600; Fashogbon V. Adeogun (No. 1) (2007) All FWLR (Pt. 396) 644 @ p. 658; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284; Adeyemi V. Opeyori (1976) 9 ? 10 SC 31; Omaghoni V. Nigeria Airways Ltd. (2006) 16 NWLR (pt. 1101) 310; Equity Bank of Nigeria Ltd. V. Halilco Nig Ltd. (2006) NWLR (Pt. 980) 568; NDIC V. CBN (2002) 7 NWLR (Pt. 766) 272. PER GEORGEWILL, J.C.A

THE LAW ON LIMITATION OF ACTION

The law on limitation of action is simply a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of stale claims. In its operation it extinguishes the right to action but not the cause of action itself, which is rendered bare and unenforceable in a Court of law. The rationale for limitation of time for the commencement of action would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost or due to unavailability of materials evidence or death or unavailability of vital key witnesses, due to no fault of his, necessary for his defense which would have otherwise been available if the claims were commenced timely within the period as allowed under the relevant applicable limitation law. However, it must be pointed out from the onset that for a Defendant to rely on limitation statue it must be duly pleaded being an equitable relief, failing which it can not avail a Defendant. See Order 25 Rule 2 (1) of the Federal High Court (Civil Procedure) Rules. See also William O. Olagunju & Anor V. PHCN Plc (2011) 46 NSCQR 583 @ p. 597, where it was emphatically pronounced inter alia thus:
?Both counsel agree however that a defendant intending to raise and rely on the defense of limitation must first of all specifically plead same otherwise the defense being a special one will not avail the party concerned. The rationale for the above principle is to be found within the rules of pleadings the particular intent of which to give notice to the other party so as not to take him by surprise.?
See further Christopher Obueke & 3 Ors V. Nsude Nwankwo Nnamchi & 2 Ors (2006) All FWLR (Pt. 313) 195. PER GEORGEWILL, J.C.A

THE LAW ON THE APPLICATION OR RATIONALE BEHIND THE ENACTMENT OF LAW

Now, the law on the application or rationale behind the enactment of law and when the provisions of a limitation law would apply to any action brought before a Court of law is trite that it only needs to be restated concisely without resort to verbose repetition of different statements thereon in the relevant judicial authorities. The law is common knowledge and very well settled for such an approach. Some of the principles of the law are: -(a) A cause of action is a fact or combination of facts which when proved, would entitled a plaintiff to a judicial remedy against defendant. See: Bello vs. Attorney General, Oyo State (1986) 5 NWLR (45) 828; Akilu vs. Fawehinmi (No. 2) (1989) 2 NWLR(102) 122: Oshoboja vs. Amuda (1992) 6 NWLR (250) 690; Ogbimi vs. Ololo (1993) 7 SCNJ. 447.(b) That a cause or right of action accrues to a party when the fact or a combination of all the facts are complete to entitle and enable him approach a Court of law for a judicial remedy against another. Adimora vs. Ajufo (1988) 6 SCNJ, 18; Thomas vs. Olufosoye (1986) 1 NWLR (18) 669; Bright Motors Limited vs. Honda Motors (1998) 12 NWLR (577) 230. (c) That for the purpose of a limitation law, time begins to run from the date/time the cause or right of action accrues to a party. Egbe vs. Adefarasin (1987) 1 SCNJ 1 Sanda vs. Kukawa L.G (1991) 2 NWLR (174) 379, Egbue vs. Araka (1988) 3 NWLR (84) 598. (d) That, in order to determine the question whether an action is statute barred, the facts given in a statement of claim as to when or the date the cause of action accrues to a party would be compared with the date the writ of summons was filed to commence the action. See Bello vs. A.G. Oyo State (supra); Egbe vs. Adefarasin (supra); University of Ibadan vs. Adetoro (1991) 4 NWLR (185) 375. (e) That where the date on which the writ was filed to commence the action is outside the period of time stipulated in a limitation law for the commencement of such action, from the date the cause or right of action was shown or said to have accrued, the action is barred by such statute. See Sanda vs. Kukawa L.G. (supra): P.N. Udoh vs. Abere (2001) 5 SC (Pt. 15) 64: Kolo vs. FBN Plc. (2003) FWLR (179) 1303.(f) That where an action is statute barred, the action is not maintainable in law and the Court would lack the competence or jurisdiction in law to adjudicate over it. See ACB Limited vs. Nnamani (1991) 4 NWLR (186) 486: Ekeogu vs. Aliri (1991) 3 NWLR (179) 258; Adeogun vs. Ekunrin (2003) FWLR (170) 1326; NPA Plc. vs. Lotus Plastic Limited (2005) 12 SC (Pt. 1) 19.?
See further P. N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900; Williams V. Williams (2008) All FWLR (Pt. 433) 1245; Obiefuna V. Okoye (1961) All NLR 357; Anwu V. Aniboye (2001) FWLR (Pt. 4 ) 845; Eboigbe V. NNPC (1994) 5 NWLR (Pt. 346) 649; Akilu V. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122. PER GEORGEWILL, J.C.A

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court, Lagos Judicial Division, Coram; C. J. Aneke., in Suit No: FHC/ABJ/CS/1304/2018: Hon Bamgbose Hontonyon Joseph V. Mr. Babatunde Hunpe & Ors., delivered on 7/3/2019, in which the Appellant?s application to amend his originating process was refused and the Originating Summons struck out for being incompetent.

?The Appellant was peeved with the said Ruling and had promptly appealed to this Court vide a Notice of Appeal filed on 13/3/2019 on five grounds of appeal at pages 824 – 830 in volume III of the record of appeal. The record of appeal was duly compiled and transmitted to this Court on 18/3/2019. The Appellant?s brief settled by Bola Aidi Esq., was filed on 21/3/2019. The 1st & 2nd Respondents? brief settled by Ahmed Raji SAN, was filed on 9/4/2019. The 1st & 2nd Respondent also filed a Notice of Preliminary Objection on 9/4/2019. The Appellant?s reply brief was filed on 18/4/2019. The 3rd Respondent did not file any brief. .

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At the hearing of this appeal on 29/4/2019, Adeola Adedipe Esq., learned counsel for the 1st & 2nd Respondents informed the Court of his preliminary objection challenging the competence of the Appeal on the ground that the Appellant?s Suit before the Court below was incompetent. Bola Aidi Esq., learned counsel for the Appellant adopted the Appellant?s brief and Appellant?s reply brief as his arguments in support of the appeal and urged the Court to allow the appeal and set aside the ruling of the Court below and to invoke Section 15 of the Court of Appeal Act to determine the Appellant?s Suit on its merit. On his part, Adeola Adedipe Esq., learned counsel for the 1st & 2nd Respondents adopted the 1st & 2nd Respondents? brief as his arguments in opposition to the appeal and urged the Court to strike out both the Appeal and the Appellant?s Suit for being incompetent and or to dismiss the appeal and affirm the ruling of the Court below. The 3rd Respondent, though duly served with hearing notice on 24/4/2019, did not participate in the hearing of this appeal.

?By an Originating Summons filed on 2/11/2018, the Appellant as Plaintiff commenced an

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action against the Respondents as Defendants jointly and severally claiming the following reliefs, namely:
1. A Declaration that the plaintiff is the winner of the 2nd Defendant?s primary elections for Badagry Federal Constituency, Lagos State conducted on 4/10/2018 to the Federal House of Representatives having scored the highest number of votes.
2. A Declaration that the Plaintiff is the candidate of the 2nd Defendant in the February, 2019, General Elections for Badagry Federal constituency, Lagos State to the Federal House of Representatives.
3. A Declaration that the 1st Defendant having lost the primary election for Badagry Federal Constituency, Lagos State to the Federal House of Representatives is not, and cannot be the candidate of the 2nd Defendant in the February, 2019 General Elections.
4. An Order directing the 2nd and 3rd Defendants to recognize the Plaintiff as the candidate of the 2nd Defendant in the February 2019, General Elections for Badagry Federal Constituency, Lagos State.
5. An Order of Perpetual Injunction restraining the 2nd and 3rd Defendants their servants, privies, agents or howsoever from

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recognizing, doing and dealing with or howsoever relating with the 1st Defendant as the candidate of the 2nd Defendant for the February, 2019 General Elections for Badagry Federal Constituency, Lagos State to the Federal House of Representatives.
6. An Order of Perpetual Injunction restraining the 1st Defendant from parading himself or howsoever holding out himself as the candidate of the 2nd Defendant in the February 2019, General Elections for Badagry, Federal Constituency, Lagos State to the Federal House of Representatives. See page 8 in Volume I of the Record of Appeal.

The Appellant had submitted the following questions for determination, namely:
1. Whether by the interpretation of Article 20 1(a) iii (C) of the Constitution of the All Progressives Congress (APC) 2014 (as amended) vis-a-vis the guidelines for the nomination of Candidates for public office, as issued by the Defendant, the 2nd Defendant can proceed to submit the name of the 1st Defendant to the Independent National Electoral Commission (INEC), when the Plaintiff was the winner of the APC primary election conducted on 4/10/2018 with respect to the House of

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Representatives Badagry Constituency of Lagos State.
2. Whether in the view of the provisions of 87 (1) (2) (3), (9) and (10) of the Electoral Act, 2010 (As Amended), the 2nd Defendant can proceed to submit the name of the 1st Defendant to the Independent National Electoral Commission (INEC), when the Plaintiff was the winner of the APC primary elections conducted on 4/10/2018 with respect to the House of representatives Badagry Federal Constituency of Lagos State.
3. Whether by the interpretation of Section 86(1) and (2), 87 (1) (2) (3), (9) and 10 of the Electoral Act, 2010 (as Amended), the 2nd Defendant can proceed to submit the name of the 1st Defendant as its flag bearer when the Plaintiff was the winner of the APC primary election conducted on 4/10/2018 with respect to the House of Representatives Badagry Federal Constituency of Lagos State.
4. Whether by the interpretation of Section 86(1) and (2), 87 (1) (2) (3), (9) – (10) of the Electoral Act, 2010 (as Amended), the 3rd Defendant does not have a duty to reject the nomination of the 1st Defendant by the 2nd defendant, when the Plaintiff was the winner of the APC primary election conducted

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on 4/10/2018 with respect to the House of representatives Badagry Federal Constituency of Lagos State monitored by the 3rd Defendant.
5. Whether by the interpretation of Section 31 (5) & (6) of the Electoral Act (as amended), the 2nd Defendant can validly nominate the 1st Defendant, being a person that has deposed falsely on oath as to the genuineness of his WAEC Certificate presented to the 3rd Defendant.
6. Whether by the interpretation of Section 35 of the Electoral Act (2010) (as amended), the 1st Defendant can proceed to re – nominate the 2nd Defendant in the absence of any written letter of withdrawal from Plaintiff, when the Plaintiff was the winner of the primary election conducted on 4/10/2018 with respect to Badagry Federal Constituency of Lagos State and was nominated by the 2nd Defendant? See pages 6 – 7 in Volume I of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The gist of the case of the Appellant, as Plaintiff before the Court below as can be gleaned from the grounds relied upon for the Originating Summons and the depositions in the several affidavits of the Appellant, Statements on Oath of witnesses and the

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several documents annexed as Exhibits, was that the Appellant as a card carrying member of the 2nd Defendant with membership Registration No. L.AG/SAD/05015151, obtained, filled and submitted all the forms relating to expression of interest and nomination forms, personal particulars of persons seeking election by Independent National Electoral Commission and my party, All Progressives Congress of Nigeria. He equally presented himself for screening by the 2nd and 3rd Defendants and the instruction and/or guideline of the 2nd Defendant/Respondent and understanding of all the candidates was that the primary election was going to be in compliance with the provision of the Electoral Act. On 4/10/2018, he contested the direct primary elections for nomination of candidate for the House of Representative, Badagry Federal Constituency held at the various wards in Badagry organized by the 2nd Defendant along with three other candidates and the primary elections was supervised and monitored by 3rd Defendants officials. At the close of the direct primary, the votes secured by the candidates were Hon. Bamgbose Joseph – 8,174; Hon. Sejoro Samuel – 1,213; Hon. Babatunde

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Hunpe – 6,589 and Mr. Amusa Rabiu – 2,490. He thus scored the highest votes of 8,174 to beat the three other candidates.

However, rather than declare him the winner of the primary election having secured the highest votes cast based on the adopted Electoral Act 2010 (as amended), the returning officer for Badagry Local Government one Hon. H. Voseh colluded with the 1st Defendant to reject the result of Ward Keta East where he scored 3,050 and Apa Ward where he scored 3,270. The rejection of the result was without any foundation as there was no violence or any acts that disrupted the said election in the two wards as attested to by all the signature of the agents of the candidates in each of the wards. To his chagrin the result of the two wards were only rejected for the House of Representatives Election which he won but accepted for the Senatorial Election, the House of Assembly Election and the Governorship Election and till date no reason has been given by the 2nd Defendant for the exclusion of the two wards from the House of Representatives elections. He immediately appealed to the National Chairman of the All Progressives Congress by a

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petition dated 11/11/2018 through his Solicitors, one Emeka Okoro & Associates. His appeal to the National Chairman was considered and approved by the National Executive Committee of 2nd Defendant upon which he was issued with INEC forms CFQO1 and EC 4b (v) which he filled and submitted to the 2nd Defendant yet the 2nd Defendant went ahead to submit the name of the 1st Defendant to the 3rd Defendant and to his chagrin, when the names of candidates were displayed, he discovered that his name was still illegally substituted for the 1st Defendant notwithstanding that he won the direct primary elections and the substitution of his name by the 2nd Defendant with that of the 1st Defendant was barefaced injustice and against the laws of this country. See pages 6 – 117, 266 – 269 and 270 – 272 in Volume I of the Record of Appeal.

?On the part of the 1st & 2nd Respondents, as 1st & 2nd Defendants before the Court below, the gist of their case as can be gleaned from their Counter affidavit and further affidavits in opposition to the Appellant?s Originating Summons and the several documents annexed as Exhibits, was that the direct primary of the 2nd

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Respondent held in all the 11 wards of the Federal Constituencies and were supervised by the DSS, the Nigerian Police and INEC and the 1st Respondent won in all the 9 ward were elections were conducted, wherein he scored the highest votes of 6, 537 to beat the Appellant who scored 1, 854 votes, Hon. Sejito Samuel who scored 1, 213 votes, and Mr. Amusa Rabiu who scored 2, 340 votes. The elections in the two remaining wards of Apa and Ketu East were declared inconclusive due to violent actions of the Appellant, his cohorts and procured armed men in those two wards, being in his home town and therefore, the result ascribed to those two wards were forged by the Appellant, who going by the lawful votes cast at the direct primary of the 2nd Respondent on 4/10/2018 emerged third behind the 1st Respondent as winner with 6, 537 votes and Mr. Amusa Rabit as first runner up with 2, 340 votes. The 1st Respondent duly won the 2nd Respondent?s direct primary held on 4/10/2018 and was so duly returned elected as the 2nd Respondent?s candidate contrary to the false claims of the Appellant. See pages 278 – 299 and 336 – 337 in Volume I of the Record of Appeal.<br< p=””

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On 22/1/2019, the Appellant filed a Motion on Notice praying for the following orders, namely:
1. An Order granting leave to the Plaintiff/Applicant to amend his Originating Summons and other Originating processes in this Suit.
2. An Order deeming the already filed and served Amended Originating Summons and other Originating processes as properly filed and served.

In support of the Application for amendment was a 7 paragraph affidavit deposed to by one Aderoju Barnabas, a legal practitioner in the Law Firm of the Appellant?s Solicitor. The parties filed and exchanged written address on the Appellant?s motion on notice for the amendment of the Originating Summons. On 8/2/2019, the application for amendment of the Appellant?s Originating Summons was argued and on 7/3/2019, the Court delivered its ruling in which it struck out the Appellant?s Originating Summons for being incompetent, hence the appeal to this Court. See page 664 – 667, 668 – 670, 691 – 696, 708 – 709, 811 – 823 and 824 – 829 in Volume II of the Record of Appeal.

?In its Ruling striking out the Appellant?s Suit, the Court below had reasoned and

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?It is well settled that this Court is devoid of jurisdiction to determine the Suit filed before it due to failure by the Plaintiff/Applicant to comply with the mandatory provisions of Section 97 of the Sheriffs and Civil Process Act in endorsing the Originating Summons in this Suit which relates to the amendment of the Originating Summons being sought for in the instant application?In the result, the Plaintiff/Applicant?s Originating Summons dated and filed on 2/11/2018 is hereby accordingly struck out for incompetence.? See pages 811 ? 823 in Volume II of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant?s brief, two issues were distilled as arising for determination in this appeal from the five grounds of appeal, namely;
1. Whether, considering the clear and unambiguous provisions of Section 285(8) of the Constitution of Nigeria 1999 (as amended) (4th Alteration) the Court below was right in proceedings to rule in an interlocutory challenge to the competence of the action and thereby striking out the case of the Appellant at that stage of the proceedings? (Distilled from Ground 1)

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2. Whether, considering the facts of this case, the Court below was right in striking out the case of the Appellant for non ? compliance with the provisions of Section 97 of the Sheriffs and Civil Process Act? (Distilled from Grounds 2, 3, 4 and 5)

In the 1st & 2nd Respondents? brief, the two issues as distilled in the Appellant?s brief were adopted as the issues arising for determination in this appeal.

My lords, I have given due considerations to the multitude of facts, affidavits and counter affidavits and documents as placed before the Court below by the parties both in the Originating Summons and the application by the Appellant to amend the Originating Summons as well as the preliminary objection by the 1st and 2nd Respondents challenging the competence of the Appellant?s Originating Summons. I have also reviewed the submission of counsel in their respective briefs in the light of the decision of the Court below appealed against and I agree with the parties, as they are ad idem on this, that the proper issues arising for determination in this appeal are the two issues as

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distilled in the Appellant?s brief. Accordingly, I hereby do set down the two issues for determination in the Appellant?s brief as the issues for determination in this appeal.

?However, before proceeding to consider these issues, I am aware that there is a Notice of Preliminary Objection filed by the 1st and 2nd Respondents on 9/4/2019, whose arguments were incorporated in the 1st & 2nd Respondents? brief filed on 9/4/2019. The Appellant had in response filed his Reply brief on 18/4/2019. The parties had therefore, duly joined issues on the 1st & 2nd Respondents? preliminary objection and in law since the issue touches on the competence or otherwise of the entire appeal as well as the Appellant?s Originating Summons filed before the Court below, it must be considered and determined first by this Court. I shall therefore, proceed anon to do so, it being an issue touching on the jurisdiction of this Court to hear and determine the appeal on the merit and seeking to terminate it in – limine.

NOTICE OF PRELIMINARY OBJECTION
By a Notice of Preliminary Objection, the 1st and 2nd Respondent are challenging the

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competence of this Appeal as well as the Appellant?s Originating Summons filed on 2/11/2018 and praying this Court to dismiss same on the following grounds, namely:
1. This is a pre-election matter which has become constitutionally barred, by virtue of Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration), having not been instituted within 14 days from when the alleged cause of action occurred.
2. Ground 1, from which issue I was formulated, is a fresh issue which has been raised without the leave of Court.
3. Grounds 1 & 2 of the Notice of Appeal are fundamentally defective, in violation of Order 7 Rule 2 (1) & (2) of the Court of Appeal Rules, 2016.
4. No jurisdiction lies in both this Court and the trial Federal High Court to entertain this case, including the defective grounds, and any issue distilled there from, for determination.

1ST AND 2ND RESPONDENTS? COUNSEL SUBMISSIONS
Learned counsel for the 1st and 2nd Respondents had submitted that the claim of the Appellant is one founded on pre – election matter and contended that such actions has

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become constitutionally barred by virtue of Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (Fourth Alteration) and urged the Court to hold that the Appellant?s Originating Summons having not been filed within 14 days from when the primary election of the 2nd Respondent was conducted on 4/10/2018 was conducted and thus liable to be struck out for being incompetent.

It was also submitted that the claim of the Appellant is one recognizable under Section 285 (14)(b) of the Constitution of Nigeria 1999 (as amended) (4th alteration) and contended that the issues submitted for determination and corresponding reliefs in the Appellant?s Originating Summons, all irresistibly point to the fact that it is a pre – election claim and urged the Court to hold that the claims of the Appellant has become statute barred when it was commenced on 2/11/2018 and should therefore, be struck out for being incompetent.

?It was further submitted that in law the jurisdiction of Court to hear and determine a matter can either be constitutional or statutory in nature but the exercise of same must also be done in line with the

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enabling law and contended that the jurisdiction of either the Court below or this Court to entertain a pre -election matter is now circumscribed by virtue of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)(Fourth Alteration) and urged the Court to hold the Appellant?s suit ought to have been commenced within 14 days from when the cause of action arose and since the suit was not filed within 14 days from 4/10/2018, when the primary election of the 2nd Respondent was conducted, the suit having been filed about 30 days later, after the cause of action had arisen, was statute barred and the right of the Appellant extinguished and therefore, the Court lacks the jurisdiction to hear and determine it on the merit. Counsel referred to Section 185(9) of the Constitution of Nigeria 1999 (as amended) and relied on Elabanjo V. Dawodu (2006) 6 – 7 SC 24; Aremo II V. Adekanye (2004) 13 NWLR (Pt. 891) 572; Sanda V. Kukawa Local Govt & Anor (1991) 2 NWLR (Pt. 174) 379 @ pp. 381 – 389; NPA Plc V. Lotus Plastics Ltd (2005) 19 NWLR (Pt. 959) 158; P. N. Udoh Trading Co. Ltd. V. Abere (2001) 11 NWLR (Pt. 723) 114;

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Ibrahim V. JSC (1998) 14 NWLR (Pt. 584) 1.

It was also further submitted that the failure to comply with the mandatory provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)(4th alteration), which clearly relates to pre – election matters, is incurable and therefore, ousts the jurisdiction of the Court to entertain the Appellant?s suit and urged the Court to strike out both the Appeal and the Appellant?s suit before the Court below for being incompetent. Counsel relied onOmisore V. Aregbesola & Ors. (2015) 15 NWLR (Pt. 1482) 228 @ p. 285; Buhari V. INEC (2008) 18 NWLR (Pt. 1120) 246 @ p. 344; Nwokoro V. Onuma (1990) 3 NWLR (Pt. 136) 22 @ p. 32; Eze V. Okechukwu (1998) 5 NWLR (Pt. 548) 43 @ pp. 85 ? 86; Adegoke Motors Ltd V. Adesanya (1989) 3 NWLR (Pt. 109) 250; Olagbegi V. Ogunoye II (1996) 5 NWLR (Pt. 448) 332.

APPELLANT?S COUNSEL?S REPLY SUBMISSIONS
In reply, learned counsel for the Appellant had submitted that the 1st and 2nd Respondents having earlier by a motion on notice dated 4/3/2018 the same issue on which the parties have duly joined issues before the Court below and

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contended that the 1st and 2nd Respondents clearly misconstrued the provisions of Section 285 (9) by seeking to abridge the extensive provision and thereby containing the intendment of legislation and urged the Court to hold that flowing from the provision of Section 285(9) of the Constitution of Nigeria 1999 (as amended), the provision is clearly on not only the event, but also the decision or action complained of whichever becomes applicable in the circumstance of the matter involved and to hold that the Appellant?s cause of action was not statute barred and thus competent.

?It was also submitted that the complaint of the Appellant emanates from the decision of the 2nd Respondent to again substitute the name of the 1st Respondent with that of the Appellant, even after deciding that the appeal of the Appellant to the Chairman of the 2nd Respondent was meritorious and issuing INEC forms to the Appellant, which the Appellant filled and submitted to the 2nd Respondent on 17/10/ 2018 with the hope of seeing his name published as the candidate of the 2nd Respondent for the elections and contended that it is the failure of the 3rd Respondent to publish

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the name of the 2nd Respondent that gave rise to the cause of action at the Court below, leading to this Appeal and urged the Court to hold that the Appellant?s suit was competent and to dismiss the preliminary objection of the 1st and 2nd Respondents and to proceed to hear and determine the Appeal on the merit.

It was further submitted that though the issues leading to the suit emanated from the election of 4/10/ 2018, it is however very clear that the decision to substitute the name of the Appellant for the 1st Respondent, after approving his appeal and issuing him INEC forms, could not be known to the Appellant until the publication of the said name by 3rd Respondent on 30/10/2018 being the date that INEC published its list of candidates as vividly captured by Appellants deposition in paragraph 13 of the affidavit in support of originating summons and contended that the 1st and 2nd Respondents? attempt to narrow the issues leading to the suit only to the primary election of 4/10/2018, is to say the least mischievous and an attempt to abridge the case of the Appellant as presented before the Court below and urged the Court to hold that

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the Appellant?s suit was filed only three days after the cause of action arose and therefore, competent and to dismiss the preliminary objection of the 1st and 2nd Respondents. Counsel relied on Gbadehan V. Kiladejo & Ors (2011) LPELR – 8911 (CA); Akinbode V. Chief Registrar High Court of Oyo State (2002) LPELR ? 6003 (CA).

?It was also further submitted that in law the Appellant having appealed to the 2nd Respondent, his political party, his cause of action is abated until a decision is taken either way and once as in the instant case the decision is favourable to him leading to the issuance of INEC forms to the Appellant by the 2nd Respondent, then there was no cause action for the Appellant to go Court to ventilate in the face of a positive action on the part of the 2nd Respondent leading to the issuance of INEC forms and contended that the Appellant?s cause of action would have been completely abrogated but for the decision by the 2nd Respondent to again substitute the name of the Appellant with that of the 1st Respondent, an issue which only became known through the display of the list of candidates and urged the Court to dismiss

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the 1st and 2nd Respondents? preliminary objection brought in bad faith. Counsel relied on Xtoudos Services Nigeria Ltd V. Taisel (WA) Ltd (2006) 15 NWLR (Pt. 1003) 533; Obiuweubi V. CBN (2011) 7 NWLR (Pt. 1247) 465 @ pp. 494 ? 495.

RESOLUTION OF PRELIMINARY OBJECTION
My lords, the parties also made submissions on other issues bordering on competence or otherwise of some of the grounds of appeal and issue for determination in this appeal. However, since the issue of competence appears to be very central to the issue of competence of the originating process and ought to be determined first one way or the other by this Court and if need be the other two grounds of the preliminary objection would then be considered, I intend to consider the issue of the competence of the Appellant?s suit first. It is for this reason, though I have reviewed the submissions on the two other grounds of the preliminary objection, I have not set out the submissions made by the parties yet in this judgment. I would do so if I find that the first ground of the preliminary objection of the 1st and 2nd Respondents? lacks merit.

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In considering the preliminary objection challenging the competence of the Appellant?s Originating Summons filed on 2/11/2018 before the Court below and by necessary implicating challenging the competence of the appeal against a ruling of the Court below founded on an alleged incompetent Originating Summons, I bear in mind first and foremost that in law it is the claim of the Plaintiff, the Appellant in the instant appeal, that denotes the jurisdiction of the Court and therefore, when the issue of whether or not a claim is within the jurisdiction of a Court is raised, it is the claim of the Plaintiff as endorsed on the Originating Process or the Statement of Claim, where one is already filed, or the claims and supporting affidavit of the Applicant, as the case may be, that must be looked at and critically scrutinized to see whether or not it falls within the jurisdictional limit of the powers of the Court before which it was commenced.
?In so doing, it must always be borne in mind and very pertinently too that, the defence of the Defendant, no matter how strong, is really of no moment at this stage and thus, goes to no issue in the determination of the jurisdiction of

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the Court whether to entertain or decline to entertain the claim of the Claimant or Applicant, as the case may, if it is found to be within or outside the ambit of the jurisdiction conferred on the Court by law. See Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. See also Orthopaedic Hospital Management Board V. Garba (2002) 14 NWLR (pt 788) 538 @ p. 563.

?Now, the issue of jurisdiction is very fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. It is thus, the law that once an issue of jurisdiction is raised it must be determined first one way or the other by the Court before proceeding if need be to determining the substantive claim. This is so because jurisdiction is radical and sine quo non to adjudication of any matter or action or cause in a Court of law and thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such situation, it has been

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said, and quite admirably too in my view, that the laborers, that is the Litigants and their counsel on the one side and the Court on the other side would have labored in vain. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Elugbe V. Omokhafe (2004) 18 NWLR (Pt. 905) 319 @ p. 334; Ansa V. RTPCN (2008) 7 NWLR (Pt. 1086) 421 @ p. 448; Gaji V. Paye (2003) 8 NWLR (Pt. 823) 583 @ pp. 599 ? 600; Fashogbon V. Adeogun (No. 1) (2007) All FWLR (Pt. 396) 644 @ p. 658; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284; Adeyemi V. Opeyori (1976) 9 ? 10 SC 31; Omaghoni V. Nigeria Airways Ltd. (2006) 16 NWLR (pt. 1101) 310; Equity Bank of Nigeria Ltd. V. Halilco Nig Ltd. (2006) NWLR (Pt. 980) 568; NDIC V. CBN (2002) 7 NWLR (Pt. 766) 272.

The law on limitation of action is simply a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of stale claims. In its operation it extinguishes the right to action but not the cause of action itself, which is rendered bare and unenforceable in a Court of law.

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The rationale for limitation of time for the commencement of action would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost or due to unavailability of materials evidence or death or unavailability of vital key witnesses, due to no fault of his, necessary for his defense which would have otherwise been available if the claims were commenced timely within the period as allowed under the relevant applicable limitation law. However, it must be pointed out from the onset that for a Defendant to rely on limitation statue it must be duly pleaded being an equitable relief, failing which it can not avail a Defendant. See Order 25 Rule 2 (1) of the Federal High Court (Civil Procedure) Rules. See also William O. Olagunju & Anor V. PHCN Plc (2011) 46 NSCQR 583 @ p. 597, where it was emphatically pronounced inter alia thus:
?Both counsel agree however that a defendant intending to raise and rely on the defense of limitation must first of all specifically plead same otherwise the defense being a special one will not avail the party concerned. The rationale for the above

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principle is to be found within the rules of pleadings the particular intent of which to give notice to the other party so as not to take him by surprise.?
See further Christopher Obueke & 3 Ors V. Nsude Nwankwo Nnamchi & 2 Ors (2006) All FWLR (Pt. 313) 195.
The issue of limitation of action has evolved over the years into a jurisdictional issue and thus even where it was not duly pleaded by a party, it can be raised by the party so contending or even suo motu by the Court and interestingly it can be determined even on the face of only the writ of summons or counter claim, as the case may be, before the other party delivers his defense or pleadings.

Thus, in determining whether a suit is statute barred or not, the law is well settled that the Court will have recourse to the endorsement on the writ of summons, where the statement of claim has not been filed, or the statement of claim of the Claimant, where it has been filed, to examine to ascertain when the cause of action arose and compare same with the date the writ was filed to see if it was filed within time or not. Thus, it is only when the date of the accrual of the cause of action

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is not easily ascertainable from the pleadings of the Claimant that the Court would resort, as a last resort, to the evidence led before it. In other words, the issue whether a claim is statute barred or not can be determined on the pleadings of the Claimant even without taking evidence of the parties.
In 1987 in Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1, the Supreme Court had considered and simplified the duty of the Court when faced with the resolution of the issue whether or not a suit is statute barred and had succinctly pronounced with finality inter alia thus:
?How does one determine the period of limitation? The answer is simply by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.?
Later in 2004, the Supreme Court had revisited this issue and reiterated in Woherem V. Emereuwa (2004) 13

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NWLR (Pt. 890) 398 @ p. 416, inter alia thus:
?The law is firmly settled that the period of limitation is determinable by looking at the writ of summons and the statement of claim only to ascertain the alleged date the wrong in question which gave rise to the plaintiffs cause of action was committed and by computing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the limitation law, the action is statute barred?.
Also in Ikosi Industries Ltd v. Lagos State Govt. & Ors  (2017) LPELR ? 41867 (CA), this Court per Garba JCA., had @ pp. 35 ? 40, opined inter alia thus:
?Now, the law on the application or rationale behind the enactment of law and when the provisions of a limitation law would apply to any action brought before a Court of law is trite that it only needs to be restated concisely without resort to verbose repetition of different statements thereon in the relevant judicial authorities. The law is common knowledge and very well settled for such an approach. Some of the principles of the law

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are: -(a) A cause of action is a fact or combination of facts which when proved, would entitled a plaintiff to a judicial remedy against defendant. See: Bello vs. Attorney General, Oyo State (1986) 5 NWLR (45) 828; Akilu vs. Fawehinmi (No. 2) (1989) 2 NWLR(102) 122: Oshoboja vs. Amuda (1992) 6 NWLR (250) 690; Ogbimi vs. Ololo (1993) 7 SCNJ. 447.(b) That a cause or right of action accrues to a party when the fact or a combination of all the facts are complete to entitle and enable him approach a Court of law for a judicial remedy against another. Adimora vs. Ajufo (1988) 6 SCNJ, 18; Thomas vs. Olufosoye (1986) 1 NWLR (18) 669; Bright Motors Limited vs. Honda Motors (1998) 12 NWLR (577) 230. (c) That for the purpose of a limitation law, time begins to run from the date/time the cause or right of action accrues to a party. Egbe vs. Adefarasin (1987) 1 SCNJ 1 Sanda vs. Kukawa L.G (1991) 2 NWLR (174) 379, Egbue vs. Araka (1988) 3 NWLR (84) 598. (d) That, in order to determine the question whether an action is statute barred, the facts given in a statement of claim as to when or the date the cause of action accrues to a party would be compared with the date the

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writ of summons was filed to commence the action. See Bello vs. A.G. Oyo State (supra); Egbe vs. Adefarasin (supra); University of Ibadan vs. Adetoro (1991) 4 NWLR (185) 375. (e) That where the date on which the writ was filed to commence the action is outside the period of time stipulated in a limitation law for the commencement of such action, from the date the cause or right of action was shown or said to have accrued, the action is barred by such statute. See Sanda vs. Kukawa L.G. (supra): P.N. Udoh vs. Abere (2001) 5 SC (Pt. 15) 64: Kolo vs. FBN Plc. (2003) FWLR (179) 1303.(f) That where an action is statute barred, the action is not maintainable in law and the Court would lack the competence or jurisdiction in law to adjudicate over it. See ACB Limited vs. Nnamani (1991) 4 NWLR (186) 486: Ekeogu vs. Aliri (1991) 3 NWLR (179) 258; Adeogun vs. Ekunrin (2003) FWLR (170) 1326; NPA Plc. vs. Lotus Plastic Limited (2005) 12 SC (Pt. 1) 19.?
See further P. N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900; Williams V. Williams (2008) All FWLR (Pt. 433) 1245; Obiefuna V. Okoye (1961) All NLR 357; Anwu V. Aniboye (2001) FWLR (Pt. 4 ) 845;

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Eboigbe V. NNPC (1994) 5 NWLR (Pt. 346) 649; Akilu V. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122.

Now, by Section 285(9) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
?Notwithstanding anything to the contrary in this Constitution every pre-election matter shall be filled not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.?
By the above provision, it goes with saying that there has been introduced constitutionally the conception and prescription of time limitation, 14 days, in pre – election disputes in Nigeria. In considering and determining whether or not the claim of a Plaintiff is statute bared, the principal document or process to be scrutinized by the Court is the writ of summons or Originating Summons or other originating process, and or the Statement of claim where it has been filed or the affidavit in support. This is so because it on the writ of summons and or statement of claim or affidavit in support, that the date or period of accrual of the cause of action of the Plaintiff can be found and or ascertained. Thus, the statement of

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defense or counter affidavit even where filed is really of no moment in the determination of the date of accrual of the cause of action of the Plaintiff and this is understandably so because if it were otherwise then a Defendant or Respondent would develop the niche or penchant for pleading the Plaintiff?s cause of action outside the limitation period so as to render the suit statute bared and thus incompetent. This explains why the filing of copious affidavits and counter affidavit evidence by the parties in an application to determine whether or not the claim of a Plaintiff was statute barred should seriously be discouraged as in my view it is wantonly unnecessary and in most cases even merely distractive and diversionary to the Court.
?It is therefore, to the grounds relied upon by the Appellant for the Originating Summons filed on 2/11/2018 and the affidavit in support of same that I shall now turn my attention to scrutinize to see when the Appellant?s cause of action arose and to determine whether at the time the Originating Summons was filed by the Appellant on 2/1/2108, the claim had become statute bared and thus incompetent as

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vehemently contended by the 1st & 2nd Respondents or was still alive and thus competent as equally vehemently contended by the Appellant?
In the ground relied upon by the Appellant for the Originating Summons, it is stated inter alia as follows:
a. The Applicant was the winner of the primary election conducted on 4/10/2018 to the Badagry Federal Constituency securing 8,174 votes against the 1st Defendant/Respondent who got 6,589 votes.
b. The name of the Applicant was illegally substituted for the 1st Defendant who secured the lesser votes.
c. The Action of the 2nd Defendant/Respondent in substituting the name of the Applicant for the 1st Defendant and subsequently forwarding the 1st Defendant name to the 3rd Defendant as its candidate for Badagry Federal Constituency, contravenes the provisions of Section 87 and other elevant sections of the Electoral Act, 2010 as amended, provisions of the Constitution of All Progressives Congress 2014 (as amended) and the 1999 Constitution of the Federal Republic of Nigeria (as amended). See pages 8 – 9 in Volume I of the Record of Appeal.
?In the affidavit in support of the Originating

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Summons deposed to by the Appellant himself, it was stated inter alia as follows:
3. That as a card carrying member of the 2nd Defendant with membership Registration No. L.AG/SAD/05015151, I obtained, filled and submitted alt the forms relating to expression of interest and nomination forms, personal particulars of persons seeking election by Independent National Electoral Commission and my party, All Progressives Congress of Nigeria. Attached and marked Exhibits A and B are the expression of interest and nomination forms while Exhibit C and D are forms CF 001 and EC 4B (v) particulars of persons seeking election.
4. That I equally presented myself for screening by the 2nd and 3rd Defendants and the instruction and/or guideline of the 2nd Defendant/Respondent and understanding of alt the candidates was that the primary election was going to be in compliance with the provision of the Electoral Act. A copy of the Constitution of All Progressives Congress is hereby attached and Marked Exhibit E.
5. That on the 4/10/2018, I contested the direct primary elections for the House of Representative, Badagry Federal Constituency held at the various

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wards in Badagry organized by the 2nd Defendant.
6. That I contested along with three other candidates and the primary elections was supervised and monitored by 3rd Defendants officials:- The votes secured by the candidates are as follows: a. Hon. Bamgbose Joseph – 8,174 b. Hon. Sejoro Samuel – 1,213; c. Hon. Babatunde Hunpe – 6,589 d. Mr. Amusa Rabiu – 2,490
7. That rather than declare me the winner of the primary election having secured the highest votes cast based on the adopted Electoral Act, 2010, amended the returning officer for Badagry Local Government Hon. H. Voseh colluded with the 1st Defendant to reject the result of Ward Keta East where I scored 3,050 and Apa Ward where I scored 3,270.
8. That the rejection of the result above is without any foundation as there was no violence or any acts that disrupted the said election in the two cards, as attested to by all the signature of the candidates agents in each of the wards.
9. That to my chagrin the result of the two wards above was only rejected for the House of Representatives Election which I won but accepted for the Senatorial Election, the House of Assembly Election and

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the Governorship Election.
10. That till date no reason has been given by the 2nd Defendant for the exclusion of the two wards from the House of Representatives elections. That
11. I immediately appealed to the National Chairman of the All Progressives Congress by a petition dated 11/11/2018 through my Solicitor (Emeka Okoro & Associates). Attached and marked Exhibit F is a copy of the letter with the results attached.
12. That my appeal to the National Chairman was considered and approved the National Executive Committee of 2nd Defendant upon which I was issued with INEC forms CFQO1 and EC 4 b (v) which fitted and submitted to the 2nd Defendant yet the 2nd Defendant went ahead to submit the name of the 1st Defendant to the 3rd Defendant.
13. That to my chagrin, when the names of candidates were displayed, I discovered that my name was still illegally substituted for the 1st Defendant notwithstanding that I won the direct primary elections.
14. That the 3rd Defendant has scheduled the 18/11/2018 as commencement of campaign for the National Assembly elections.
15. That the 1st Defendant has started parading himself as the

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winner of the direct primary elections.
16. That this Court need to intervene timeously to prevent the 1st Defendant from continuing to parade himself as the candidate of the 2nd Defendant the House of Representatives Election Badagry Federal Constituency Lagos State.
17. That despite success of my appeal to the 2nd Defendant, the 2nd Defendant remains curiously adamant and that the 1st Defendant has started circulating his poster as the winner of the primary election and is about to stand as the candidate to represent Badagry Federal Constituency on the platform of the 2nd Defendant in the February, 2019 General Elections to the Federal House of Representatives.
18. That it is only the order of the Court that can prevent the 2nd and 3rd Defendants from giving effect to the quest of the 1st Defendant.
19. That the substitution of my name by the 2nd Defendant with that of the 1st Defendant is barefaced injustice and against the laws of this country. See pages 11 – 14 in Volume I of the Record of Appeal.
?It is the law that it is the pleadings or depositions of the party that defines both his cause of action and the case he intends to

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put forward against his adversary before the Court. In The Registered Trustees of the Apostolic Church V. Mrs. Olowoleni (1990) SCNJ 69, Nnaemeka-Agu, JSC, had succinctly stated inter alia thus:
?A party?s case is defined, circumscribed and limited by its pleadings. This is why pleading demands so much care and skill to draft. For where a plaintiff?s pleadings is defective or bereft of essential averments, it could constitute a definite guarantee for his failure, as he cannot lead evidence on any fact which he did not aver in his pleading, unless of course, the issue was raised in the opponent?s pleadings. Any evidence on a fact not pleaded goes to no issue and ought to be disregard.?
See also Amaechi V. INEC (2007) 8 NWLR (Pt. 1065) 9 @ p. 100.
So what is the case of the Appellant as regard his cause of action against the 1st & 2nd Respondents and when did the cause of action arose? I have calmly scrutinized the grounds relied upon by the Appellant for the Originating Summons as well as his affidavit in support of the Originating Summons in the light of the divergent contentions of the parties and I find that

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by paragraphs a, b and c of the grounds for the Originating Summons and paragraphs 3, 4, 5, 6, 7, 8, 12, 13, 15, 18 and 19 of the affidavit in support of the Originating Summons, the cause of action of the Appellant clearly arose on 4/10/2018 when he alleged that he won the direct primary of the 2nd Respondent as the candidate of the 2nd Respondent for the House of Representative, Badagry Federal Constituency of Lagos State in the February 2019 General Elections as aptly contended by the 1st & 2nd Respondents in this appeal and not on any other date when the names of candidates were submitted by the 2nd Respondent to the 3rd Respondent as erroneously and mischievously contended by the Appellant, which contention is even clearly contrary to the very first question number one submitted by him before the Court below, his own reliefs 1, 2, 3 and 4 in the Originating Summons, paragraph (a) of his grounds for the Originating Summons and the depositions in paragraphs 3, 4, 5, 6, 7 and 8 of his affidavit in Support of the Originating Summons.
?It appears to me to be too late in the day for the Appellant to change his cause of action midstream from complaint

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of his having won the direct primary of the 2nd Respondent conducted on 4/10/2018 having scored majority of the votes cast at the said primary election to wrongful substitution of his name by the 2nd Respondent with the name of the 1st Respondent. It is akin to bolting the cage when the horse had already bolted out of it. Things do not just work like that in the litigation process but perhaps if only wishes were horses! This is so because without the allegation of having won the direct primary of the 2nd Respondent on 4/10/1018, the subsequent issue of wrongful substitution would not have arisen at all. Therefore, the cause of action is, in my finding on the showing by the Appellant himself, clearly the alleged wining by the Appellant of the direct primary of the 2nd Respondent held on 4/10/2018.
?It is my firm view therefore, and I so hold firmly, that the issue of forwarding or submitting of a candidate?s name, the name of the 1st Respondent, to the 3rd Respondent, INEC, by the 2nd Respondent, APC, was clearly a function of a successful primary election held by the 2nd Respondent on 4/10/2018. It follows therefore the cause of action of the

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Appellant is the primary election of the 2nd Respondent. The Appellant knew this and also stated it so in all his processes filed before the Court below. See the provisions of Section 87 of the Electoral Act, 2010 (as amended), wherein it is provided as follows:
87. (1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.
(2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries.
(3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.
(4) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below
(a)
(b) ?..
(c) In the case of nomination to the position of a candidate to the Senate, House of Representatives and State House of Assembly, a political party shall, where it intends to sponsor candidates

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(i.) Hold special congresses in the Senatorial District, Federal Constituency and the State Assembly constituency respectively, with delegates voting for each of the aspirants in designated centre on specified date; and
(ii) The aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant?s name shall be forwarded to the commission as the candidate of the party.
My lords, on facts very similar to the facts in this appeal, particularly as to the cause of action of the Appellant as between the date of the conduct of the primary election and the subsequent alleged submission of the name of the 1st Respondent to the 3rd Respondent by the 2nd Respondent, this Court had in Appeal No. CA/A/126/2019: David Umar V. APC & Ors (Unreported) judgment of the Court of Appeal, Abuja Division delivered on 8/4/2019, per Adah JCA., @ pp. 26 – 29 held inter alia thus: .
..The claim of the 3rd Respondent is that he won the primary election conducted on 2/10/2018 and that it was not the Appellant that won the Party primary election conducted for the Niger East Senatorial District. That it was

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the name of the Appellant who he alleged did not win the Primary Election that was submitted to INEC by their political party. It is therefore sure and certain that the cause of action was primarily the party primary election which held on 5/10/2018 or as the 3rd Respondent himself claimed, 2/10/2018. The issue of submission of name to the INEC on 18/10/2018 is ancillary to the main issue which is the primary election conducted by the 1st Respondent.?
My lords, having so found as fact that the cause of action of the Appellant arose on 4/10/2018, and this being a pre – election matter as agreed upon by both parties and for which the Appellant has only 14 days as prescribed by Section 285(9) of the Constitution of Nigeria 1999 (as amended), within which to file his claim against the conduct and result of the direct primaries of the 2nd Respondent political party, the APC, in law the simple duty of this Court in determining whether or not the Appellant?s Suit is statute barred or not is by looking at the date or when the cause of action arose and comparing same with the date the Suit was filed to see if it was filed within or outside the

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limitation period. SeeEgbe V. Adefarasin (Supra) @ p. 10; Woherem V. Emereuwa (Supra) @ p. 416.
The Appellant?s Suit by way of Originating Summons was filed on 2/11/2018 as can be seen clearly at page 6 in Volume I of the Record of Appeal, while his cause of action arose, even his own showing through hid depositions in the affidavit in support of the Originating Summons, arose on 4/10/2018. Thus, it is crystal clear to me and I so hold that the claim of the Appellant filed on 2/11/2018 to enforce his cause of action, which arose on 4/10/2018 was undoubtedly and irredeemably statute barred by virtue of and the operation of the provision of Section 285(9) of the Constitution of Nigeria 1999 (as amended) which prescribes a constitutional limitation period of 14 days for the valid and competent commencement of the claim of the Appellant in a Court of law.
?In the light of all the findings above, I hold that the Originating Summons filed by the Appellant on 2/11/2018 was clearly statute barred. I find that the claim of the Appellant at the time it was filed against the Respondents suffered a ?still birth? and had thus become stale and

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therefore, in law incapable of any enforcement by an action in a Court of law. See Hung V. E.C. Investment C. Nig. Ltd. (2016) LPELR – 42125 (CA). See also Onokomma V. Union Bank of Nigeria Plc (2017) LPELR – 42748 (CA).

I had earlier alluded to the position of the law that the issue of limitation of action has become a jurisdictional issue. It has long been settled in our law that jurisdiction is a fundamental one and thus can be raised at any stage of the proceedings, even on appeal for the first time as in the instant appeal by either of the parties or even by the Court suo motu and once raised it must first be determined one way or the other by the Court before any other issue touching on the merit or otherwise of the respective cases of the parties can be enquired and be determined on the merit by the court. This is so because in the absence of jurisdiction there can be no competence in the Appellants? claim to be heard and determined on the merit, since jurisdiction is the life blood of every cause or action and thus where the requisite jurisdiction is found to be lacking, that is indeed the end of the matter. In AG. Lagos State V. Dosunmu

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(1989) 3 NWLR (Pt. 111) 552, the Supreme Court per Kayode Eso JSC., (God bless his soul) had put it so poetically thus:
?Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain.?
See also Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also P. E. Ltd. Leventis Technical Co. Ltd. (2002) 5 NWLR (Pt. 244) 693; Petro Jessica Ent. Ltd V. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 132; Okereke V. Yar?Adua (2008) All FWLR (Pt. 430) 25; Essien V. Essien (2010) All FWLR (Pt. 523) 1992.

Having arrived at the inescapable conclusion that the Appellant?s Originating Summons filed on 2/11/2018 before the Court below was filed out of time and thus, statute barred, the issue of the perennial battle for supremacy between ?substantial justice? and ?technical justice? reared up its head at once to play on the conscience of the Court; should we jettison and discountenance technicality bordering on incompetence of the Appellant?s Originating Summons or should we give effect to the settled principle of law that nothing worth anything can

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ever come out from an incompetent Suit? In African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 @ p. 365 – 366, I had cause to consider deeply the place of ?substantial justice? and ?technical justice? in the due administration of justice in this Country and had opined inter alia thus:
?My lords, while in today?s jurisprudence of ?substantial justice? the issue of ?mere technicality? no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ?mere technicality? but rather be seen as substantial issue of law. In other words while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled. In Andrew V. INEC (2018) 9 NWLR (Pt. 1625) 507 @ pp. 540 ? 541. See also Mrs. Susan Olapeju Sinmisola Olley V. Hon. Olukolu Ganiyu Tunji & Ors. (2013) 10 NWLR (Pt. 1362) 275; Madukolu V. Nkemdilim (1962) 1 All NLR 587; P. E. Ltd. V. Leventis

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Technical Co. Ltd. (1992) 6 SC. (Pt. 1)1 @ pp. 27 – 28; Dangana & Anor. V. Usman & Ors. (2012)2 SC (Pt. 1)3.?
I do not think I can improve on the statement of law I made above and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with both this Appeal and Originating Summons of the Appellant filed before the Court below on 2/11/2018 that both are grossly incompetent in law and thus liable to be dismissed.

In the circumstances therefore, I find great merit in the preliminary objection of the 1st & 2nd Respondents challenging the competence of both the Appellant?s Originating Summons and this appeal and same is hereby upheld.

In the result, this appeal filed on 13/3/2019 as well as the Appellant?s Originating Summons filed on 2/11/2018, being both grossly incompetent, are hereby each struck out. I make no order as to cost.

MOHAMMED LAWAL GARBA. J.C.A.: After reading a draft of the lead judgement written by my learned brother Biobele Abraham Georgewill, JCA in this appeal, I find that all the views expressed on the preliminary objection by the 1st and

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2nd Respondents to the competence of both the originating summons flied by the Appellant before the Lower Court to initiate the action from which the appeal was brought and the appeal predicated thereon, are indeed re-statements of the extant position of the law on the principle of statute barred actions in our judicial jurisprudence.

With the Introduction of the amendment in Section 285(9) of the Constitution, pre-election matters such as the Appellant?s action, have prescribed and limited period of time within which they could validly and competently be commenced or initiated by parties.
Being the supreme law of the land, the provisions of the Constitution are sacrosanct such that they have binding force on all authorities and persons throughout the Federal Republic of Nigeria pursuant to Section 1(1) thereof.
The application of the extant provisions of the Constitution by all persons and authorities in Nigeria, especially the Courts established by the Constitution; whose primacy judicial duty and function is to interpret and apply its provisions, is not only a constitutional obligation, but also a mandatory civil responsibility.

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The provisions of Section 285(9) of the Constitution are very clear, plain and straightforward to require interpolations or glosses of interpretation in order to decipher or ascertain the purport and intention of the legislature in making or enacting them. See Amadi v. INEC (2013) 4 NWLR (1345) 595. Attorney General Lagos State v. Attorney General of the Federation (2014) 9 NWLR(1412} 217. Faleke v. INEC (2016) 18 NWLR (1543) 61.
Expressly, the provisions say that any 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. In INEC v. Hon. (Barr.) Etene (2013) LPELR-22108(CA) Page 27, I defined pre-election matters, as follows: –
?In every day terms, pre-election matters are complaints in respect of Issues which arises before and therefore, precede the holding or conduct of an election.’
The term ?pre-election matters? encompasses stages and steps taken by political parties from calling for nominations from and by validly registered card carrying members of the party, to conduct of party primary elections at which candidates to be

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sponsored by the party, for an election are elected and submission of such candidates to the Electoral body in-charge of the conduct of the elections. See Agbakoba v. INEC (2008) 18 NWLR (1119) 489.
The Appellant?s suit which emanated from the conduct of the 2nd Respondent?s primary election for selection of candidates to be sponsored by it for the election of February, 2019, qualifies as a pre-election matter for which the provisions of Section 285(9) stipulated and limited the time within which it should be commenced or initiated for it to be constitutionally and legally valid and competent for adjudication by a Court of law.
As shown in the facts of the Appellant?s originating summons and ably demonstrated in the lead judgement, the pith and fulcrum of the Appellant?s action was the conduct of the 2nd Respondent?s primary election for the selection of candidates to be sponsored for the February, 2019 election, which he alleged he won, but the 1st Respondent was declared the winner. The substance of his complaint and action was that even though he allegedly scored the highest number of votes at the primary election and

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won, another aspirant; the 1st Respondent was declared to have won the said primary election. It is therefore beyond viable arguments that the event or action complained of by the Appellant in the suit filed before the Lower Court was the conduct of the primary election and declaration of the winner
thereof, by the 2nd Respondent all of which happened or took place on the 4th October, 2018. By the provisions of Section 285(9), for the Appellant to properly, validly and competently employ the judicial processes of a Court of law to seek remedy for the alleged wrong done or occasioned to him in the conduct and outcome of the primary election, he ought to have initiated or commenced his action within the fourteen (14) days specifically prescribed for the commencement or initiation of such actions. He did not do so and did not comply with the constitutional provisions limiting the period he should have done so.
The subsequent action taken by the Appellant to petition the chairman of the 2nd Respondent in respect of the conduct and outcome of the primary election conducted on the

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4th October, 2018 was merely an administrative and ancillary one, which might be in line with the regulations or guidelines of the 2nd Respondent for the election, but must bow to the supremacy of the constitutional provisions. In that regard, the said action did not stop the time from running for the purpose of the limited period for the initiation or commencement of the action in respect of the conduct and outcome of the primary election.
In the circumstances, the action or suit by the Appellant initiated or commenced after the expiration of the limited number of days stipulated by the provisions, rendered it not only ordinary statute barred, but constitutionally barred and beyond any legal or/and judicial salvation. See: Amadi v. INEC (2012) 2 MJSC (Pt 1) 1. Abubakar v. Nasamu (2012) 2-3 MJSC, 1; CPC v. INEC (2011) 12 MJSC (special Edition) 105, Etuk v. Nkop (2006) ALLFWLR (328) 778. Hassan v. Aliyu (2010) 17 NWLR (1223) 547.
I am in complete agreement with the lead judgement for the above and more pungent reasons set out therein, that the Appellant?s action before the Lower Court was constitutionally barred when it was initiated or

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commences and so incompetent, thereby contiguously and fatally infesting the present appeal with the terminal defect. Both are incompetent and the Lower Court and this Court deprived of the requisite jurisdiction and competence to entertain and adjudicate on them. Hassan v. AIiyu (supra), Nwankwo v. Yar?Adua (2010) 12 NWLR (1209) 518, Dangana v. Usman (2012)2 MJSC (Pt II) 146.
I join the lead judgement in striking out both the Appellant?s action and this appeal for being statute barred by the provisions of Section 285(9) of the Constitution and incompetent.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the lead Judgment of my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA before now and I find that he has covered the field and dealt with the salient issues at stake. I therefore, agree with the reasoning and conclusion reached therein, except to emphasise that;
The Constitution is supreme, and having inserted a limitation clause in Section 285(9) of 1999 Constitution (as amended) there is no wavier.
?Where a statute provides that before a statutory power is exercised, certain conditions must be satisfied,

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that power cannot be exercised unless the conditions have been satisfied and where a statute prescribes a particular method of exercising a statutory power only that method should be adopted.
See; AROWOLO v. ADESINA (2011) 2 NWLR (PT. 1231) 315; APAPA v. INEC (2012) 8 NWLR (PT 1303); CAC v RTCC (2000) 11 NWLR (PT 1151).
In this case, paragraph 5 of the supporting affidavit to the originating summons deposed to by the applicant settles it all, the direct primary elections for the House of representatives, Badagry Federal Constituency, held on 4/10/18, was the genesis of the events that led to the complaints in paragraphs 7, 8, 9, 10 & 11 therein. The pre-election Petition was filed after 14 days; hence, the provision of Section 285(9) was not complied with.
The Originating summons was filed about 29 days after the event; it is far in excess of the 14 days set time for such action. Therefore the action is statute barred.
In ACN & ANR v. INEC & ORS (2013) LPELR ? 1991 (CA);
The Court considered the provision of Section 285(7) of the 1999 Constitution (as amended) in respect of election cases on the same principle of time limited for hearing such petitions, Court

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interpreting the provision held;
The appellants have been confronted with the provisions of Section 285(7) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which provides as follows: 285(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the Tribunal or Court of Appeal.?
This provision has been interpreted in several decisions of the Supreme Court. I do wonder why the appellants have closed their eyes to the finality of the opinions of the apex Court to institute this appeal which they have also admitted is time barred. In my humble view, the appeal is predicated on political sentiments clothed with human sympathy. But Chief Iro Ogbu & Ors. vs. Chief Ogburu Urum & Ors. (1981) 1 All NLR (Pt.2) 240 at 246 the Supreme Court held that: ?Sympathy cannot override the clear provisions of our Rules…? In Yonwuren vs. Modern Signs (Nig.) Ltd. (1985) 2 SC 86 Obaseki, JSC also stated at page 111 that: ?…the Court does not act on sentiment and sympathy has no

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place where on the facts the law Is against the applicant.? Again in P.D.P vs. C.P.C. (2011) 17 NWLR (Pt.1277) 485 Galadima, JSC held when considering the provisions of Section 285(7) of the Constitution held at page 514 thus: …I agree that the appellants are not tardy or responsible for the delay in this matter. They have my sympathy. But there is nothing in Section 285(7) of the Constitution suggesting that the time limited to the hearing and disposal of election matter can be expanded. This is not the intendment of Subsection (7) of Section 285 of the Constitution. Unless the Section is amended by the National Assembly, the law remains what it is. It is clear and unambiguous. It does not exclude the period of public holidays and vacation in the computation of the period of time specified in the constitution.? If this Court has no jurisdiction to entertain the substantive appeal because of effluxion of time, which other Court can do so … That is to say, the Supreme Court has already held that the Court cannot extend the times provided under Sections 285(5)-(7) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). That is to say that both the Court of Appeal and the Supreme will have no jurisdiction to entertain the substantive appeal.? per TUR, J.C.A ( pp. 38-4 1, PARA. C).

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I therefore agree with the lead judgement that the preliminary objection filed by the 1st and 2nd respondent succeeds and is upheld.
The Ruling of the Federal High Court per ANEKE, J is hereby affirmed. I abide by the consequential orders on cost.

 

 

 

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Appearances:

Bola Aidi,Esq.For Appellant(s)

Adeola Adedipe. Esq. for the 1st & 2nd Respondents.

The 3rd Respondent was not represented by counselFor Respondent(s)

 

Appearances

Bola Aidi,Esq.For Appellant

 

AND

Adeola Adedipe. Esq. for the 1st & 2nd Respondents.

The 3rd Respondent was not represented by counselFor Respondent