HON. LAWAL ABUBAKAR GARBA v. ABDULRA’UF ABDULKADIR MODIBBO & ORS
(2019)LCN/13203(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/55/2019
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. LAWAL ABUBAKAR GARBA Appellant(s)
AND
1. ABDULRA’UF ABDULKADIR MODIBBO
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
TIME FOR FILING PRE-ELECTION MATTERS
Section 285(9) of the 1999 Constitution as amended
provides:-
?Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of 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. The Cross Appellant argued that the cause of action arose by the consequence of the decision of the National Working Committee (NWC) of the 2nd Cross Respondent which took a decision on the 17th of October, 2018 by nominating and forwarding the name of the 2nd Cross Respondent on the 18th of October, 2018 forgetting the 7th October, 2018 being the date for the Primaries which gave rise to the subsequent events.
It is important to note that the lower Court held that the suit was statute barred. That the suit was stale in that it was brought outside the 14 days period allowed by Section 285 (9) of the 1999 Constitution. The lower Court at pages 385 to 386 of the Record of Appeal held:-
?From the circumstances of the preliminary objections filed by the Respondents Counsel, my take is that the action having been affected by the Provisions of Section 285 (9) of the 1999 Constitution, 4th Alteration Act 2017, the latest virus affecting the adjudicatory lifeblood of pre-election matters in the form of statutory limitation is statute barred and I so hold, the circumstance which will lead to inevitable conclusion of waiver of right, the action therefore stands dismissed. PER BAYERO, J.C.A.
WHETHER OR NOT WHERE AN ACTION IS STATUTE BARRED, A PARTY LOSSES THE RIGHT TO ENFORCE IT BY JUDICIAL PROCESS
When an action is Statute Barred, a party who might have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation law for instituting such an action had lapsed. See EMIALOR V. NIGERIAN ARMY (1999) 12 NWLR (Part 179) 258. PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This is a Cross Appeal that emanated from the Judgment of the Federal High Court Yola Judicial Division delivered by A. M. Anka J on 6th March 2018. This Cross Appeal arose from Appeal number CA/YL/49/2019. Primary elections for the seat of Yola North/Yola South/Girei Federal Constituency was conducted by the 2nd Cross Respondent on 7th October, 2018. The 1st Cross Respondent was declared the winner. The Cross Appellant filed an action before the lower Court by way of an Originating Summons filed on 29th October, 2018. Objections were taken as to the competency of the Suit being a pre-election matter that falls within the provisions of Section 285 (9) of the 1999 Constitution 4th Alteration Act. The lower Court delivered its Judgment on the 6th day of March, 2019 that the suit of was filed outside the prescribed time frame of 14 days and dismissed the suit.
Aggrieved, the Cross Appellant filed a Notice of Appeal against the decision on 18th March, 2019. The Cross Appellant?s Brief of Argument was filed on 15/4/2019 wherein he formulated two issues for determination.
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They are:-
i. Whether having regard to the facts and circumstances of this case, most especially the inconclusive nature of the primaries election of the 2nd cross-Respondent for Yola North/Yola South/Girei Federal Constituency held on the 7th October, 2018, the learned trial Judge did not err when he held that the suit instituted by the Cross-Appellant herein was statute barred and consequently struck out same (Distilled from Grounds 1 and 2 of the Notice of Appeal).
ii. Whether taking into consideration the provisions of Section 87 (9) of the Electoral Act (2010) and the fact that no candidate emerged for the Yola North/Yola South/ Girei Federal Constituency as at 7th October 2018, the trial Judge did not err when in applying Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 restricted himself only to the event of 7th October, 2018. (Distilled from ground 3 of the Notice of Appeal).
Arguing the Cross Appeal, Counsel submitted that he wishes to set out the material Provisions of the Electoral Act, 2010 (as amended), the Provisions of the 2nd Cross-Respondent?s Constitution as well as the 2nd
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Cross-Respondent?s Guidelines for the nomination of Candidates for the 2019 General Elections 2019-Indirect Primaries which have been respectively attached to the Affidavit in support of the Originating Summons and marked as Exhibits LAG7 and LAG8. SEE pages 50-119 of the Record of Appeal.
That Section 87 of the Electoral Act, 2010 (as amended) makes copious Provisions for the issue of nomination of Candidates of any Political Party seeking to nominate Candidates for elections under it. Section 87(1)-(4) of the Electoral Act, 2010 (as amended) provides 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.
87(2). The Procedure for the nomination of candidates by political party for the various elective positions shall be by direct or indirect primaries.
87(3). A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted by members of the party.
87(4). A political party that adopts the system of indirect primaries for the choice of its candidates shall
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adopt the procedure outlined below:
87 (4) (c) (i) and (ii):
In the case of nomination to the position of a candidate to the Senate, House of Representatives and State House of Assembly, political party shall where it intends to sponsor candidates:
(i) Hold special congresses in the Senatorial District, Federal Constituency and State House of Assembly constituency respectively, with delegates voting for each of the aspirants in designated Centre on specified dates; 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;
That the 2nd Cross-Respondent?s Constitution also strengthened the Provisions of Section 87 of the Electoral Act cited above, when it provides vides Article 20 of its Constitution as follows:
i. Unless otherwise provided for:
?a. All party posts prescribed or implied by this Constitution shall be filled by democratically conducted elections at the respective National Convention or Congress subject, where possible, to
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consensus, provided that where a Candidate has emerged by consensus for an elective position, a vote of ?yes? or ?No? by ballot or voice shall be called, to ensure that it was not an imposition which could breed discontent and crisis.
That under Article 20(iii)(c ), the Constitution of the 2nd Cross-Respondent further provides that:
Nomination of Candidates for House of Representatives shall be through direct or indirect primary election to be conducted at the appropriate level.
That Article 20(iv) of the Constitution of the 2nd Cross-Respondent herein referred to as Exhibit LAG7 further provides for the procedure for nomination of Candidates with an Electoral College.
?He submitted that pursuant to its power under the Constitution of the 2nd Cross-Respondent, the National Working Committee acting with the approval of the National Executive Council made Rules and Regulations for the nomination of Candidate through primary elections. That the relevant Guidelines to the Case of the cross Appellant before this Honourable Court is the GUIDELINES FOR NOMINATION OF CANDIDATES FOR THE 2019 GENERAL ELECTIONS 2019
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INDIRECT PRIMARIES attached to the Affidavit in support of the Originating Summons as Exhibit LAG8.
That Paragraph 14(II) of Exhibit LAG8 provides for Electoral Processes for nomination Processes for the National Assembly and specifically provides at the end of the said Paragraph thus:
?Members shall assemble at their respective Federal Constituency/Senatorial Zone Headquarters and vote by secret Ballot. The Aspirant with the highest number of votes shall be announced as the winner accordingly.
According to Counsel, under the General Provisions Paragraph of Exhibit LAG8, it is provided as follows;
? Each Aspirant shall have one accredited Agent.
? .
?
? ?..
? After counting the votes, the results shall be publicly announced and properly entered on the APC Official Result Sheet.
? Any Result recorded on ordinary paper shall not be accepted.
? The Returning Officer shall make copies of Results available to Aspirants or their Agents but failure or refusal to collect will not invalidate the result.
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? ?.
Accreditation shall be done by the Returning Officer and Polling Agents between the hours of 8:00am to 12noon. Any Delegate, Aspirant or Agent who arrives after the commencement of voting shall not be accredited or allowed to vote.
That Paragraph 15(c) and (d)of Exhibit LAG8 attached to the Cross-Respondent Affidavit at the trial Court provides for the composition of the Legislative Election Committee and their duties as follows:
4.5.1. Duties of the Committee shall include:
? Verification/Accreditation of Delegates
? Organizing and conducting Elections and all duties related thereto.
That the above Provisions of the Electoral Act, 2010 (as amended), with the Constitution of the 2nd Cross-Respondent which is Exhibit LAG 7 and the Guidelines for the nomination of Candidates for the 2019 General Elections 2019 – Indirect Primaries also attached as Exhibit LAG8 at the back of our minds and as a foundation to the entire argument as to the processes for the nomination of candidate(s), he submitted that the 2nd Cross-Respondent?s primary election conducted for Yola North/Yola South/Girei Federal Constituency on the
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7th day of October, 2018 was not and is not in compliance with the above Provisions of Section 87 of the Electoral Act, provisions of Exhibit LAG7 and Exhibit LAG8 and cannot for any reason whatsoever; produce or nominate a Candidate for the Federal Constituency in issue to warrant the 2nd Cross-Respondent to submit the name of the Appellant/1st Cross-Respondent herein (Abdulra?uf Abdulkadir Modibbo) to the 3rd Cross-Respondent (INEC) as its Candidate.
That Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017, which the learned trial judge relied on to decide the preliminary objection provides, thus;
?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?.
?That inferring from the above clear and unambiguous constitutional provision, the important question is when is the date of occurrence of the event, decision or action complained of? He submitted with humility that the main action complained of
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in this Suit which is the submission of the name of the Appellant/Cross-Respondent despite the inconclusive nature of the 2nd Cross-Respondent?s Primaries took place on the 18th of October, 2018. My lord, as could be gleaned from the contents of the Originating Summons and the Affidavit in Support as contained on the records, the case of the 1st Respondent/Cross-Appellant has always been that the cause of action arose after the National Working Committee?s meeting of 17th October, 2018 and the subsequent submission of the name of the Appellant/Cross Respondent as the candidate of the 2nd Cross Respondent on the 18th October, 2018.
?That from the respective affidavits of parties at the trial, the primary election of 7th October, 2018 did not produce any winner capable of being submitted for the purpose of being the candidate of the Appellant/Cross-Respondent herein for the 2019 General Election. That it is also on record that the Cross-Respondent/Appellant wrote a petition to the National Working Committee on the inconclusive nature of the said Primary Elections which Petition was never investigated at all. That it was while waiting for the
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outcome of the Petition, that the 2nd Cross-Respondent (APC) submitted the name of the Appellant/Cross-Respondent to the 3rd Cross Respondent on the 18th of October, 2018. Thus it was on the said 18th of October, 2018 wherein the name of the Appellant/Cross-Respondent was submitted that the cause of action arose.
According to Counsel, it is pertinent to note that the Cross-Respondent/Appellant acted pursuant to the 2nd Cross-Respondent?s Constitution which empowers and aggrieved candidate to first exhaust internal remedy by petitioning the appeal Committee before resort to litigation. Without exhausting, before the 18th of October, 2018, the Cross-Respondent/Appellant was still waiting and hoping that the issue will be resolved by the Appeal Committee. But by the said 18th of October, 2018, wherein it became clear that the Appeal Committee ignored his petition and submitted the name of a candidate from the inconclusive primaries, the cause of action arose and thus, became necessary for him to ventilate his grievances at the Court of law hence the Suit forming subject matter of this appeal.
?That having regard to exhibits LAG9, LAG 10 &
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LAG 11, on pages 309-315 of the record, there was no conclusive primaries as at 7th October, 2018 capable of producing a candidate for the seat of House of Representatives for Yola North/Yola South/Girei Federal Constituency as such, the only time a candidate emerged was from the National Working Committee?s meeting of 17th October, 2018.
That the 2nd Cross/Respondent breached the Cross-Respondent/Appellant?s right when it ignored his petition and proceeded to submit the name of the Appellant/Cross-Respondent on the 18th of October, 2018. Agreed the Primaries held on the 7th of October, 2018, but the question is whether by the Constitution of the 2nd Cross-Appellant, the Cross-Respondent Appellant was clothed with the right to go to Court without first obtaining redress on his petition? Certainly no.
That the Supreme Court in the case ofA.G. ADAMAWA VS THE AGF (2015) ALL FWLR PT. 797 597 per Odili JSC held that a cause of action arises from the date the breach complained of occurred. We also to the reported cases of PLATEAU CONST. LTD. VS. AWARE (2014) 6 NWLR (PT. 1404) PG 519 @ PP 542-543 PARAS H-C; U.M.B LTD VS: C.B.N. (2017) ALL
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FWLR (PT. 880) PG 823 @ 844 PARAS D-H.
My lords, it is pertinent to note and we submit with the greatest respect that the learned trial Judge took a narrow appreciation as to what constitute a cause of action in determining the preliminary objection before him hence his erroneous arrival on the decision that the cause of action arose on the 7th of October, 2018 instead of 18th of October, 2018. The 1st Cross Respondent filed his Brief of Argument on 25/04/2019 wherein he raised a sole issue for determination. The sole issue is:-
Whether in the entire circumstances of this suit the Court below was right in holding that the Cross-Appellant?s qua Plaintiff?s case was statute barred. (Grounds 1, 2 and 3)
That this Cross appeal is a product of the ruling of the trial Court upholding inter-alia, the 1st Cross Respondent challenge to the jurisdiction of this Honourable Court to entertain this suit on the grounds that same is statute barred pursuant to Section 285(9) of the Constitution of the Federal Republic of Nigeria, 4th alteration Act. What is now trite and fairly settled in our jurisprudence to wit:- that a plea that a suit is
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statute barred is an attack on the jurisdiction of a trial Court to entertain same. He referred to the case of NWAKA V. HEAD OF SERVICE, EBONYI STATE (2008) 3 NWLR [PT. 1073] Page 156.
According to Counsel a perusal of the Cross Appellant?s claim before the trial Federal High Court will reveal that for all intents and purposes is a challenge on the 2nd Cross Respondent?s primary election held on the 7th day of October, 2018 to select its candidate for Yola North/Yola South/Girei Federal Constituency for the 2019 general election, perhaps a reproduction of the Cross Appellant?s principal relief will suffice to drive home the point viz:-
?1. A DECLARATION that the 1st Respondent?s primary election conducted for Yola North/Yola South/Girei Federal Constituency on the 7th day of October, 2018 is NOT incompliance with the Provisions of Section 87 (4) (c) (i) and (ii) of the Electoral Act, 2010 (as amended) to warrant the 1st Respondent submitting the name of the 2nd Respondent to the 3rd Respondent as its candidate for the 2019 General Election into Yola North/Yola South/Girei Federal Constituency of Adamawa State.”
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That the foregoing constitutes the Cross Appellants principal relief before the trial Court and all other relief(s) are ancillary thereto. The principal relief aforesaid speaks for itself and it can be discerned there from that this suit was instituted pursuant to Section 87 (4) (c) (i) and (ii) of the Electoral Act, 2010 (as amended) which is enacted by the law giver to cloth a candidate at a Political Party?s Primary election with the vires to challenge its conduct where he is of the opinion that it is not conducted in accordance with its the party?s constitution, guidelines or even the provisions of the Electoral Act. It is noteworthy that in the relief reproduced above there is no mention by the Cross Appellant of the National Working Committee (NWC) decision of 18th October, 2018 for the obvious reason that the decision of the NWC is not the focal point of Section 87 (4) (c)(i) and (ii) of the Electoral Act, 2010 (as amended). He refers to the case of UFOMBA V. INEC (2017) ALL FWLR[PT. 913] at pages 829 ? 859 paras. H ? G, P. 860 ? 861 Paras. B ? C.
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According to Counsel, the Appellant?s complaint is targeted at the primary election of 7th October, 2018 is validated/evident by the fact that the Cross Appellant co-authored a letter dated 8th October, 2018 complaining about the conduct of the primary election for Girei/Yola North/Yola South Federal Constituency i.e. Enclosure 2 to ?Exhibit SMB4? to the affidavit in support of originating summons. The foregoing paragraphs of the affidavit in support of originating summons taken together with Enclosure 2 to ?Exhibit SMB4? shows clearly that even as at 8th October, 2018, the Cross Appellant was dissatisfied with the conduct of the primary election held on the 7th day of October, 2018 on the ground that same was not conducted in accordance with the party?s guidelines. We therefore submit that with the occurrences aforesaid, all the facts constituting a cause of action has occurred in favour of the Cross Appellant at least on the 8th day of October, 2018. He cited the case of DINGOLI V. BARAU(2012) ALL FWLR [PT. 609] page 1156 at page 1171 paragraphs C ? E.
The 2nd Cross Respondent?s Brief of Argument was filed on 25/04/2019 wherein he
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raised two issues for determination. They are:-
i. Whether given the entire circumstances of this case in relation to the very nature of pre-election matter particularly under S. 87 of the Electoral Act, 2010 as amended, the Lower Court?s decision to dismiss the suit on the promise that it is statute barred is correct and sustainable? (Grounds 1 & 2 of the Notice of Appeal).
?ii. Whether considering the facts in support of the originating summons, the questions for adjudication and the reliefs sought, the trial Judge was correct to have held that the cause of action of the Cross Appellant arose on the 7th of October, 2018? (Ground 3 of the Notice of Appeal).
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That the answers to both issues as formulated above can best be in the affirmative and we urge my lords to so hold.
The cumulative effect and principles enunciated in all of the decisions of this court and that of the Supreme Court is to the effect that once an action is instituted or brought outside the time prescribed by law or statute, in this case, Section 285(9) of the 1999 Constitution, Fourth Alteration Act, that action cannot be sustained as the Plaintiff thereon would be said to have lost his right of action.
That a combined reading of the affidavit in support of the originating summons in this appeal by the Cross-Appellant at the lower Court which is the fulcrum and basis for the objection based on the limitation of action will reveal that the Cross-Appellant had seriously objected to and contested the mode upon which the primary election of the Cross-Respondent was conducted on the 7th October, 2018 and went further to complain about the alleged inconclusive nature of the said
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primary election by writing a petition, EXH. LAG 6 to express his dissatisfaction and with a call that he rather than the 2nd Cross-Respondent be made the candidate of the Cross-Respondent predicating his call on the fact of being a serving member of the House of Representatives of the Federal Constituency of Adamawa State in issue.
Paragraphs 12, 13, 14, 15, 16, 17, 19, 20, 21, 22 and 23 thereof at pages 13-15 of the printed records of appeal.
The Cross-Appellant in paragraph 12 of his affidavit to the originating summons which is at page 13 of the records had this to say:
?12. That to my surprise and to that of every other Aspirant who was dissatisfied with the turn of event, the Election Committee did not carry out due accreditation of Voters/Delegates before the conduct of the primary for my Constituency as the Committee rather insisted on relying on the accreditation initially done for the Senatorial Primaries as the accreditation for the conduct of election in my constituency which we rejected.”
Also at paragraph 23 of the said deposition by the Cross-Appellant in support of his Originating Summons he went further
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to state thus:
23) ?That before I became aware of the contents of Exhibit LAG 5, I had seen the 2nd Respondent parading himself as the winner of the primary election, I forwarded my complaint to the Chairman of the 1st Respondent and the Appeal panel on the Primaries Election, APC National Secretariat, Federal Capital Territory, Abuja for consideration. The said petition against the conduct of the primary election dated 9th day of October, 2018 is hereby attached and marked as EXHIBIT LAG 6.?
That there is no dispute about the fact that the Cross-Respondent primary election to elect a candidate to represent her in the General Election of the 3rd Cross-Respondent for the Yola North/Yola South, Girei Federal Constituency of Adamawa State in the National Assembly took place on the 7th October, 2018. See paragraphs 18 and 20 of the affidavit in support of the Originating Summons at page 14 of the record of appeal and particularly EXHIBIT LAG 5 attached thereto.
?That as at 7th October, 2018, the Cross-Appellant was fully in the know that the Cross-Respondent through his assertion in his affidavit evidence at paragraph 13
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therefore which is contained at page 13 of the printed records had allegedly violated its guidelines for nomination of candidates for 2019 general election which evidently has proved the commencement of cause of action on that date. May we humbly reproduce the said paragraph 13 of the Cross-Appellant herein for ease of reference thus:
13. ?All efforts to see the Election Committee see reasons to carryout accreditation in line with the 1st Respondents? guidelines for nomination of candidates for 2019 General Election went to no avail as the Committee was bent on using the list of accredited Delegates for already concluded Senatorial primaries.?
The above statement of fact, which is clear, unambiguous and straight forward is clearly an admission of a grouse by the Cross-Appellant against the conduct or procedure adopted by the Cross-Appellant Election Committee on the 7th October, 2018 to which a clear and undisputable cause of action had arisen, but because the Cross Appellant desires to escape the limitation of action under S.285(9) of the 1999 Constitution, Fourth Alteration Act, he decided to shift grounds albeit
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unsuccessfully, to the 17th and 18th of October, 2018.
That Exhibit LAG 6 contained at pages 46-47 of the printed records which is the petition written by the Cross-Appellant is self explanatory as to the date of accrual of cause of action for all intent and purposes. The said petition dated 9th October, 2018 and submitted same date is captioned:
?PETITION AGAINST THE CONDUCT OF PRIMARIES FOR YOLA NORTH, YOLA SOUTH, GIREI FEDERAL CONSTITUTION-ADAMAWA STATE.
The petition concluded with a prayer thus:
?In view of the above facts it is my humble prayers that the Election be cancelled and the party should give me automatic tickets as a serving member (MHR) to run as its candidate in the 2019 General Election to avoid exclusion by INEC vis–vis the deadline for submission of candidates name.?
?That the above petition as captioned, its content and prayers clearly establishes dissatisfaction by the Cross-Appellant on the conduct and outcome of the primary election of the Cross Respondent on the 7th October, 2018 and should thereby not be allowed to run away from the clear and unambiguous admission of same
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simply because of the quest to escape the penalty for failure to commence or institute the action within 14 days from the 7th October, 2018.
It is also indisputably clear that from the 7th October, 2018 to the 29th October, 2018 when the suit at the Court below was eventually filed, a simple arithmetical computation will reveal that it is far beyond or outside the prescribed 14 days window or limit permissible under S.285(9) of the 1999 Constitution, Fourth Alteration Act.
From the generality of the facts and circumstances of this appeal as borne out by the records of appeal in juxtaposition to the very nature of pre election and particularly under S.87 of the Electoral Act, 2010 as amended, it is our humble submission that the judgment of the lower Court in its holding that the action before it is statute barred cannot in anyway be faulted, same is most apt, correct and sustainable.
?That the Cross Appellant had argued that his cause of action arose by consequence of the decision of the National Working Committee (NWC) of the Cross Respondent which took a decision on the 17th of October, 2018 by nominating and forwarding the name of the 2nd
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Cross Respondent on the 18th October, 2018 to the 3rd Cross Respondent and thereby believed or hinged his cause of action to have solely arisen on these dates alone forgetting the events of the 7th of October, 2018 being the date of the primaries which gave rise to the subsequent events.
That assuming but not conceding that the cause of action arose on the 17th and 18th October, 2018 as alleged by the Cross Appellant, this Court by plethora of authorities has decided that nomination of a candidate by a political party is purely an intra-party affair which the Court has no jurisdiction to entertain. Furthermore it has been decided by the Supreme Court that the extent of jurisdiction of Court under Section 87(9) of the Electoral Act 2010 as amended is limited when so invoked by an aspirant as in the instant case by the Cross Appellant. We respectfully refer my lords to the recent Supreme Court decision in ANGADI VS. PDP (2018) 15 NWLR 1 @ 34 ? 36 Paras C-A where the Court held as follows:
?The Courts have limited jurisdiction when invoked under Section 87(9) of the Electoral Act, 2010 (as amended) by an aspirant who has participated
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in the primaries of a political party and which has given him the necessary locus standi. The provision of the subsection has conferred on the Courts a limited jurisdiction which has not derogated from the non-justiciability of a party?s wide discretionary powers of choosing one of its members for the elective office. The Complainant must be an aspirant and his complaint must relate to non-compliance with the provisions of the Electoral Act or the guidelines of the political party. The rationale for this position is that the nomination or sponsorship of a candidate is within the domestic affairs of a political party and the Courts have no jurisdiction to nominate a candidate for any party. The choice of candidates by political parties for elective office being a political issue is governed by the rules, guidelines and constitution of the political party concerned and is a matter of internal affairs of the political party. It is not to be questioned before any Court being non-justiciable. No member of a political party has the locus standi to question the party?s prerogative right on the issue of its choice of candidates for elective offices not
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even in the face of breaching its rules, and regulations. The redress available to such a member who is so aggrieved and who has suffered any damage as a result of refusing him nomination and sponsorship lies in damages against the political party and subject to the provisions of the party?s constitution, rules and regulations
DETERMINATION OF THE APPEAL
Section 285(9) of the 1999 Constitution as amended
provides:-
?Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of 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. The Cross Appellant argued that the cause of action arose by the consequence of the decision of the National Working Committee (NWC) of the 2nd Cross Respondent which took a decision on the 17th of October, 2018 by nominating and forwarding the name of the 2nd Cross Respondent on the 18th of October, 2018 forgetting the 7th October, 2018 being the date for the
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Primaries which gave rise to the subsequent events.
It is important to note that the lower Court held that the suit was statute barred. That the suit was stale in that it was brought outside the 14 days period allowed by Section 285 (9) of the 1999 Constitution. The lower Court at pages 385 to 386 of the Record of Appeal held:-
?From the circumstances of the preliminary objections filed by the Respondents Counsel, my take is that the action having been affected by the Provisions of Section 285 (9) of the 1999 Constitution, 4th Alteration Act 2017, the latest virus affecting the adjudicatory lifeblood of pre-election matters in the form of statutory limitation is statute barred and I so hold, the circumstance which will lead to inevitable conclusion of waiver of right, the action therefore stands dismissed.?
I agree entirely with these findings of the lower Court. When an action is Statute Barred, a party who might have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation law for instituting such an action had lapsed. See EMIALOR V. NIGERIAN ARMY (1999) 12 NWLR
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(Part 179) 258. As the originating summons was commenced outside the time allowed by the Constitution, the lower Court was right in dismissing the suit based on the preliminary objections. The lower Court having upheld the preliminary objections was wrong to have proceeded to determine the substantive suit. See TOYIN V. PEOPLES DEMOCRATIC PARTY & 30 ORS SC/308/2018 delivered on 18th January, 2018. Having upheld the ruling of the trial Court dismissing the suit, there is no basis for considering the issues in the main Appeal. Parties should bear their costs of the Appeal.
CHIDI NWAOMA UWA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
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Appearances:
Y. D. Dangana, Esq. with him, Idris I. Talle, Esq.For Appellant(s)
S. Atung, Esq. with him, Ekechukwu Edeze, Esq. Efut Okoi, Esq., Hameed M. Tukur, Esq., Mahmud Ahmad, Esq. and Ifeoma Johnson, Esq. for 1st Cross Respondent.
F. R. Baiyo, Esq. for 3rd RespondentFor Respondent(s)
Appearances
Y. D. Dangana, Esq. with him, Idris I. Talle, Esq.For Appellant
AND
S. Atung, Esq. with him, Ekechukwu Edeze, Esq. Efut Okoi, Esq., Hameed M. Tukur, Esq., Mahmud Ahmad, Esq. and Ifeoma Johnson, Esq. for 1st Cross Respondent.
F. R. Baiyo, Esq. for 3rd RespondentFor Respondent