HON. EBELE ONYEKELU v. ALL PROGRESSIVES GRAND ALLIANCE & ORS
(2019)LCN/13749(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of August, 2019
CA/A/618/2019
RATIO
STATUTE BAR: WHAT THE COURT IS TO LOOK AT TO DETERMINE WHETHER OR NOT AN ACTION IS STATUTE BARRED
The law requires the Court to look at the date the cause of action arose vis-a-vis the date the suit was filed. In the case of Forestry Research Institute of Nigeria V. Gold (2007) LPELR- 1287(SC), the Supreme Court per Mukhtar, JSC (as he then was) held:
“I will state here that the dismissal of the respondent having taken place in 1988, the respondent’s cause of action arose three months thereafter, and not three years after. In this respect, I find solace in the dicta of Oputa, JSC in the case of Fred Egbe v. Honourable Justice Adefarasin (Supra) which is encapsulated thus: ” A cause of action is thus said to be statute-barred if in respect of its proceedings cannot be brought because the period laid down by the Limitation Law or Act had elapsed. 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 stature barred.” PER STEPHEN JONAH ADAH, J.C.A.
STATUTE BAR: THE DOCUMENTS THAT DETERMINE WHETHER OR NOT AN ACTION IS STATUTE BARRED
Similarly, in the case of MILITARY ADMIN EKITI STATE V. ALADEYELU & ORS (2007) 4-5 SC 201, ONNOGHEN, JSC (as he then was held):
“In the case of WOHEREM V. EMEREUWA (2004) 6-7 SC 161; (2004) 13 NWLR (PT 890) 398 at 417, this Court decided that for the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the Writ of Summons and the Statement of Claim only. I will however add, where one has been filed. It is from either or both of these processes that one can ascertain the alleged date when the wrong in question is said to have occurred or been committed, thereby giving rise to the plaintiffs’ cause of action. When that ascertained date is compared with the date the Writ of Summons or Originating process was filed in Court, it can then be determined whether the action was instituted within the period allowed by law or outside it. PER STEPHEN JONAH ADAH, J.C.A.
STATUTE BAR: JURISDICTION OF A COURT IS LACKING WHEN AN ACTION BEFORE IT IS STATUTE BARRED
See Savannah Bank of Nigeria Ltd V. Pan Atlantic Shipping and Transport Agency Ltd. (Supra); Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 at 710; Egbe v Adefarasin (1987) 1 NWLR (Pt.47) 1. At page 304 of the record, the lower Court made specific findings that the suit was statute barred. The Court held in clear terms as follows:
I think this Court has no jurisdiction to entertain the suit on the merit, the matter being statute barred it cannot be revived in this Court. Therefore the preliminary objection filed by the 1st Defendant dated 31st of January, 2019 and the 2nd Defendant?s motion on notice dated 9th of February, 2019 challenging the Court’s jurisdiction to entertain this suit deserves to succeed and are accordingly granted as prayed. This suit is hereby dismissed because it is statute barred. PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
HON. EBELE ONYEKELU Appellant(s)
AND
1. ALL PROGRESSIVES GRAND ALLIANCE (APGA)
2. MR. IFEANYI IBEZI
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): The appellant as plaintiff took out an originating summons of the lower Court, the Federal High Court, Abuja Division against the Respondents as Defendants on the 4th day of December, 2018.
The Originating summons issued out was for the determination of four Questions and six consequential reliefs. The Question and the reliefs are worded as follows: –
QUESTIONS FOR DETERMINATION
1. Whether having regard to the provisions of Section 87 (4) of the Electoral Act 2010 (as amended), and Article 24 of the 1st defendant’s guideline for Nomination of candidate for 2019 General Election, the 1st Defendant Conducted a valid primary election for Idemili North and South Federal constituency for the purpose of nominating a candidate to fly the flag of the party in the National Assembly Election.
2. Whether having regard to the provisions of Section 87 (4) of the Electoral Act 2010 (as amended), and Article 24 of the 1st Defendant’s Guidelines for the Nomination of candidate for 2019 General Elections, the 1st Defendant can produce any candidate for Idemili North and South Federal
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Constituency for the 2019 National Assembly Election in the absence of a valid Primary Election conducted by the party.
3. Whether having regard to the provisions of Section 87 (4) of the Electoral Act 2010 (as amended) and Article 24 of the 1st Defendant’s Guidelines for the Nomination of candidates for 2019 General Elections, the purported nomination of the 2nd defendant by the 1st defendant as its candidate for the 2019 National Assembly Election was done not in clear violation of the provisions of the Electoral Act, the 1st Defendant’s Constitution and is not null and void.
?4. Whether having regard to the provision of Section 87 (4) of the Electoral Act 2010 (as amended), and article 24 of the 1st Defendant’s Guidelines for the Nomination of candidates for 2019 General Elections, the 1st Defendant and the 3rd Defendant can deal with, recognize, or continue to recognize in any manner howsoever, hold out the 2nd defendant as the candidate of the 1st defendant for Idemili North and South Federal Constituency for the 2019 National Assembly Election in Anambra State in the absence of a valid Primary Election conducted by the 1st defendant in
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which the 2nd Defendant Emerges Victorious.
1. A DECLARATION that the act of the 1st Defendant in forwarding the name of the 2nd Defendant to the 3rd Defendant is not justified in law being that the 1st Defendant did not conduct any valid Primary Election for Idemili North and South Federal Constituency for the purpose of nominating a candidate to fly the flag of the party in the 2019 National Assembly Election for the said Federal Constituency as provided by Section 87(4) of the Electoral Act 2010 (as amended) and Article 24 (5) of the Constitution of the APGA 2014 (as amended) the 1st Defendant’s Guidelines for the Nomination of Candidates for 2019 General Elections.
2. A DECLARATION that by virtue of the provisions of Section 87 (4) of the Electoral Act 2010 (as amended), article 24 (5) of the constitution of APGA 2014 (as amended), and the 1st Defendant’s Guidelines for the Nomination of Candidates for 2019 General Election that 1st Defendant does not have and cannot produce any candidate for Idemili North and South for the National Assembly Election in the absence of a valid Primary Election conducted by the party.
3. A DECLARATION that
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the purported nomination of the 2nd Defendant by the forwarding of his name by the 1st Defendant to the 3RD Defendant as the 1st Defendant’s candidate for Idemili North and South in the 2019 National Assembly Election was done in clear violation of Section 87 (4) of the Electoral Act 2010 (as amended) Article 24 (5) of the Constitution of All Progressive Grand Alliance (APGA) 2014 (as amended) and 1st Defendant’s Guidelines for the Nomination of Candidates for 2019 General Elections and is therefore null and void.
4. AN ORDER OF INJUNCTION restraining the 1st and 3rd Defendant’s from dealing with, recognizing or continuing to recognize in any manner howsoever, acting on the name of the 2nd Defendant or holding out the 2nd Defendant as the candidate for the 1st Defendant for Idemili North and south for the 2019 National Assembly General Election is conducted by the 1st Defendant in which the 2nd Defendant emerges victorious.
5. AN ORDER directing the 1st Defendant to conduct a Primary Election in Idemili North and South Federal constituency for the purpose of sponsoring a candidate in the 2019 National Assembly Election.
6. AN ORDER restraining
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the 2nd Defendant from holding out or parading himself as the candidate of the 1st Defendant for Idemili North and South Federal Constituency for the 2019 National Assembly Election in Anambra State unless and until a valid Primary Election is conducted by the 1st Defendant in which the 2nd Defendant emerges victorious.
AND FOR SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.
The parties joined issues. The lower Court (CORAM: Okon Abang, J.,) heard the parties and on the 31st day of May, 2019 upheld the preliminary objection as to jurisdiction and dismissed the suit, it being statute barred and awarded a cost of N50,000 each in favour of the 1st and 2nd Respondent against the appellant. The appellant being dissatisfied with that decision now appealed to this Court vide his notice of appeal dated and filed on the 11th day of June, 2019. The notice of appeal has one ground.
?The record of appeal was transmitted on 9/7/2019. The appellant filed his brief of argument on 11/7/19. The 1st Respondent filed its brief on 12/7/19. The 2nd Respondent filed his own brief on 17/7/19 while the 3rd Respondent
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filed brief on 15/7/19. The appellant then filed a reply brief to the 2nd Respondents brief on 18/7/19.
The 2nd Respondent filed a preliminary objection to this appeal on 17/7/19 and it was argued at pages 5 to 7 paragraphs 3.01 to 3.08.
At the hearing of the appeal, the parties respectively adopted there briefs and voiced their respective reliefs.
Since there is a preliminary objection, it is customary and established as our procedure to deal with the preliminary objection first. The reason being the fact that a preliminary objection is a fundamental challenge to the hearing of the appeal. That accounts for why it is said to be a pre-emptive strike at the hearing of an appeal and its resolution will determine whether the Court will determine the appeal on merit or terminate the appeal at that stage. See JIM-JAJA V. C.O.P RIVERS STATE (2013) 6 NWLR (PT 1350) 225; NIDOCCO LTD V GBAJABIAMILA (2013) 14 NWLR (PT 1374) 350, AKPAN V. BOB & ORS (2010) 17 NWLR (PT 1223) 421; ADEJUMO & ORS V. OLAWAYE (2014) 12 NWLR (PT 1421) 252.
I shall therefore look into the preliminary objection first.
?The 2nd Respondent in the notice of
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preliminary objection urged the Court to strike out this appeal on the ground that:
i. The Appellant’s sole ground of appeal contains no particulars.
ii. The said ground of appeal is vague, general in terms, discloses no reasonable ground of appeal and liable of being struck out.
The 2nd respondent/objector in his brief relied on order 7 Rules 2, 3, and 6 of the Rules of this Court 2016. He also relied on the cases of OKWUAGBALA V. IKWUEME (2010) 19 NWLR (PT 1226) 54, 67; N.B.C PLC V EDWARD (2015) 2 NWLR (PT. 1443) 201, 214-215; AND UMANAH (JNR) V N.D.I.C. (2016) 14 NWLR (PT 1533) 458, 474.
The contention of the 2nd respondent is that this appeal is incompetent on the grounds that the appellant’s sole ground of appeal does not contain particulars. That the ground is vague, general in terms and that it discloses no reasonable ground of appeal. He urged the Court to strike out this appeal. He submitted in paragraph 3.07 of his brief that though there could be instances where a ground of appeal can be said to have its particulars embedded in it (in built), the appellant’s sole ground in the instant appeal cannot be said to have its particulars
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embedded in it. He urged the Court to hold that the appeal is bereft of competency and should be struck out.
The appellant in his reply brief queried the preliminary objection which he said was served on him on 17/7/19 to be heard on 18/7/19. That he was not given three (3) clear days as required by Order 10 Rule 1 of the Rules of this Court, 2016. He canvassed that it is not in all cases that a ground of appeal without particulars can be said to be incompetent. He relied on the cases of ASHIRU V. AYOADE (2006) 6 NWLR (PT. 976) 405, 421 E-H; MUMU V. AGOR (1993) 8 NWLR (PT. 313) 573; OSAWARU V. EZEIRUKA (1978) 6-9 SC 135; etc.
That the authorities cited by the 2nd Respondent/objector are not applicable to this appeal. He urged the Court to dismiss the preliminary objection.
?
This objection was argued by the parties. The appellant complained of not having three days. This is a threshold issue which the appellant ought to have raised before the objection was argued complaining of inadequacy of time. He did not raise this issue but filed a reply brief addressing and replying to the preliminary objection. It is therefore an afterthought and a
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tint of technicality for the appellant to say now that the objection was incompetent because he was not given three
