HON. LAWANI DAMAIN AGZEBEOBOR v. ALL PROGRESSIVE CONGRESS & ORS (2019)

HON. LAWANI DAMAIN AGZEBEOBOR v. ALL PROGRESSIVE CONGRESS & ORS

(2019)LCN/13466(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2019

CA/B/272/2019

RATIO

COURTS: THE TRIAL COURT HAS THE DUTY TO CONSIDER ALL ISSUES THAT ARE BROUGHT BEFORE IT
The best practice and current conventional wisdom which saves judicial time, prevents lengthy litigation and waste of the financial resources of litigants is that trial Courts and lower Courts should as a general rule pronounce on and determine all issues submitted to them for determination so that the appellate Court may have the benefit of their opinion on the matter. This obviates the need to send the case back to the lower Court for resolution with the attendant high cost of and unnecessary delay in resolving the crucial issues agitating the parties. See Brawal Shipping v. Onwadike co. ltd supra; Bello v. Diocesan Synod of Lagos (1973) 3 SC 102; Oro v. Falade (1995) 5 NWLR Pt. 396 Pg. 385; Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 5 NWLR Pt. 656 Pg. 322; Ikechukwu v FRN (2015) 7 NWLR Pt. 1457 Pg. 1; Owuru v. Adigwu (2018) 1 NWLR Pt.1599 Pg. 1. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

ELECTION PETITION: WITHIN HOW MANY DAYS SHOULD A COURT DELIVER ITS JUDGMENT FROM THE DAY OF FILING ITS SUIT
A Court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

THE POWERS OF THE COURT OF APPEAL AS PROVIDED FOR IN SECTION 15 OF THE COURT OF APPEAL ACT, 2004.
In fact this is an ideal example of when it is apt to activate the full force of our powers donated by Section 15 of the Court of Appeal Act 2004 as follows:-
The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or account to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such rehearing or may give other further directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below is that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JURISDICTION: WHEN A TRIAL COURT IN AN ELECTION MATTER DECIDES THAT IT LACKS JURISDICTION, IS IT STILL UNDER OBLIGATION TO PRONOUNCE ON THE OTHER ISSUES PRESENTED IT?
I am amply supported in this procedure by the recent opinion of my learned brothers in Rt. Hon Adjoto v. Hon. Akpatason and Ors. supra where my Lord Adumein JCA opined as follows:
In this case, the trial Court, after deciding the question relating to its jurisdiction, ought to have proceeded to decide the all-important issue of who won the disputed primary election, based on the evidence before it. Having regard to the fact that the Appellants suit was filed on 18th day of March, 2019, remitting the suit to the trial Court for its reasons on the merits of case will be an exercise in futility in view of Section 285 (10) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which requires a pre-election suit to be determined by the High Court within 180 days from the date of filing the suit. In any case, the evidence before the trial Court is substantially documentary and this Court is in good position as the trial Court to evaluate the it(sic). It is now settled that it is not in every case, where a lower Court has failed in its primary duty that an appellate Court will remit case to that Court for rehearing or retrial. See Yusuf v. Co-operative Bank Ltd (1994) 7 NWLR Pt. 359 Pg. 676; Katto v. CBN (1999) 6 NWLR Pt. 607 399; Osasona v. Ajayi (2004) 14 NWLR Pt. 894 Pg. 52.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

WHEN THERE IS A CONFLICTING AFFIDAVIT

In the circumstances of this case, there is conflicting affidavit evidence regarding who won the primaries. However, where there is clear and uncontroverted documentary evidence, it serves as a hanger on which to anchor the credibility of a version of the oral (affidavit) evidence. See Interdrill (Nig.) Ltd. & Anor. v. UBA PLC (2017) LPELR-41907(SC); Kimdey & Ors. v. M.G. of Gongola State (1988) 2 NWLR Pt. 77 Pg. 473; Omoregbe v. Lawani (1980) 3-4 SC Pg. 117.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

WHEN THERE IS CONFLICTING AFFIDAVIT EVIDENCE, WHAT ARE THE WAYS BY WHICH THE CONFLICTS CAN BE RESOLVED

It is not only by calling oral evidence that such conflict should be resolved. There may be authentic documentary evidence which supports one of the affidavits in conflict with another. In a trial by affidavit evidence such as this, that document is capable of tilting the balance in favour of the affidavit which agrees with it. After all, even if oral testimony had been called, such a documentary evidence would be yardstick with which to assess oral testimony. See Fashanu v. Adekoya (1974) 1 ALL NLR 35, at Pg. 48; Nwosu v. Imo State Environmental Sanitation Authority & Ors (1990) LPELR-2129 (SC).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

HON. LAWANI DAMAIN AGZEBEOBOR Appellant(s)

AND

1. ALL PROGRESSIVE CONGRESS
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. AHMED OSHIOMAH Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Benin delivered on 11/4/19 by Hon. Justice M.G. Umar wherein the Court struck out the suit of the Appellant for being statute barred thus upholding the preliminary objection filed on 13/1/19 by the 3rd Respondent at trial.

Briefly, the facts that led to this appeal are that on 22/11/18, the Appellant filed originating summons at the Federal High Court seeking the determination of the following questions:
1. Whether the 3rd Defendant can be validly nominated and sponsored by the 1st Defendant as the candidate for the Estako Central Constituency Seat in the Edo State House of Assembly forthcoming General Election of 2019 without compliance with Section 87 (1), (2), (4) (C) of the Electoral Act 2010 (as amended) and Paragraphs 14, 18 (A-M) and 19 (I-V) of the Guidelines for the Nomination of Candidates for the 2019 General Election Direct-Primaries made by the 1st Defendant.
2. Whether the 1st Defendant acting through its National Working Committee can lawfully refuse to forward the name

of the Plaintiff as its sponsored candidate to the 2nd Defendant for him to be issued with form COO1 and COO2 for the Edo State House of Assembly forthcoming General Election of 2019 of the Estako Central Constituency Seat having scored the majority of the lawful vote and duly, returned as the nominated candidate for Etsako Central Constituency Seat at the 1st Defendants primary election held at the 10 wards of the Etsako Central Local Government Area on the 6th day of October 2018 pursuant to Section 87 (1), (2), (4) (c) of the Electoral Act 2010 (As Amended), Article 20 (iii) and (iv) of the 1st Defendants Constitution 2014 (As Amended), and Paragraphs 14, 18 (A-M) and 19(I-V) of the Guidelines made there under by the 1st Defendant.
If the answer to issues One and Two are in the negative
3. Whether it is not unlawful and in breach of Section 87 (1), (2),(4)(c) of the Electoral Act 2010 (As Amended), Article 20 (iii) and (iv) of the 1st Defendant?s Constitution 2014 (As Amended) and Paragraphs 14, 18 (A-M) and 19 (I-V) of the Guidelines for the Nomination of Candidates for the 2019 General Election made thereto for the 1st Defendant to

forward the name of the 3rd Defendant an aspirant who contested at the Primary Election of the 1st Defendant held on the 6th day of October 2018 at Etsako Central Local Government Area for the Etsako Central Constituency Seat of the Edo State House of Assembly and lost to the Plaintiff.
4. Whether the 2nd Defendant can validly recognize the nomination and sponsorship of the 3rd Defendant by the 1st Defendant as the candidate for the Etsako Central Constituency Seat for the Edo State House of Assembly forthcoming 2019 General Election whose emergence as the Nominated Candidate did not comply with the 1st Defendant?s Constitution and the guidelines made thereto and the Electoral Act 2010 (As Amended)
CONSEQUENT upon the determination of the foregoing questions, the plaintiff further seeks from this Honourable Court the following reliefs:
(a) A declaration that the procedure for the nomination and/or sponsorship of candidates for elective offices recognized by the Electoral Act 2010 (As Amended) is exclusively governed by Section 87 of the Electoral Act 2010 (As Amended), the 1st Defendant?s Constitution 2014 (As Amended) and the 1st

Defendant?s Guidelines for the Nomination of Candidate for the 2019 General Elections Direct-Primaries made thereto by the 1st Defendant.
(b) A declaration that the decision of the 1st Defendant in forwarding the name of the 3rd Defendant to the 2nd Defendant as it candidate for the forthcoming 2019 General Election for the Etsako Central Constituency Seat of the Edo State House of Assembly is in violation of the mandatory provisions of the Electoral Act 2010 (As Amended) and the 1st Defendant?s guidelines 2019 for the Nomination of Candidates-Direct primaries.
(c) A declaration that the Plaintiff having been declared by the Returning officer as the winner of the 1st Defendant Direct Primary Election held on the 6th day of October, 2018 for the Etsako Central Constituency Seat of the Edo State House of Assembly by a majority of the lawful votes of 6295 to the 3rd Defendant votes of 108, the 1st Defendant is bound by the result of the primary to recognize and forward the Plaintiff?s name as the duly nominated Candidate for Sponsorship to the 2nd Defendant in the forthcoming 2019 General Election.
(d) A declaration that the

refusal to forward the name of the Plaintiff who won the Direct primary election of the 6th day of October 2018 after being duly returned by the Returning Officer for Etsako Central as the nominated candidate for the Etsako Central Constituency Seat of the Edo State House of Assembly by the 1st Defendant to the 2nd Defendant and his stead, forwarded the name of the 3rd Defendant who lost at the primary election to the Plaintiff, is illegal, null and void and of no legal consequence or significance, irregular and inconsistent with the clear provision of Section 87 of the Electoral Act 2010 (As Amended) and the 1st Defendant?s Constitution and the guidelines made thereto.
(e) A declaration that the refusal of the 1st Defendant to forward the name of the Plaintiff to the 2nd Defendant or in removing the name of the plaintiff from its list of nominated candidate for its sponsorship, that was forwarded to the 2nd Defendant to be issued with form COO1 and COO2 is inconsistent with the provisions of the Electoral Act (As Amended), the 1st Defendant?s Party Constitution and the Guidelines made therefore illegal, null and void and of no legal effect;

the plaintiff having been duly elected/Nominated as the candidate by pulling the majority of the lawful votes at the primary Election of the 1st Defendant that held on the 6th day of October, 2018.
(f) A declaration that the 2nd Defendant cannot lawfully recognize the 3rd Defendant as the nominated and sponsorship candidate of the 1st Defendant in the forthcoming general Election 2019, having failed to emerge as the nominated candidate in accordance in accordance with the 1st Defendant?s Constitution and the guidelines made thereto and the Electoral Act 2010 (As Amended).
(g) An order that the 3rd Defendant being an aspirant who contested in the primary organized by the 1st Defendant which was witnessed by the 2nd Defendant and lost to the Plaintiff and not been validly nominated as the lawful candidate of the 1st Defendant as the lawful candidate of the 1st Defendant as provided for in compliance with the provisions of the Electoral Act 2010 (As Amended), 1st Defendant?s Constitution and the Guidelines for the Nomination of Candidates 2019-Direct Primaries, cannot be the legally sponsored candidate of the 1st Candidate in the forth

coming Edo State House of Assembly election for the Etsako Central Constituency Seat and therefore not eligible to be fielded to contest in the 2019 General Election.
(h) An order that the name of the 3rd Defendant that was forwarded to the 2nd Defendant without his emergence as the winner of the 1st Defendants Primary Election of 6th day of October, 2018 by scoring the majority of lawful vote to contest at the 2019 General Election for Etsako Central Seat in the Edo State House of Assembly is null and void, of no legal effect and same should be set aside from the list of Candidates in the 2019 General Elections. And replace same with the name of the Plaintiff who won the primary election on the 1st Defendant held on the 6th day of October 2018.
(i) An order that the Plaintiff been the winner of the primary Election of the 1st Defendant held on the 6th day of October 2018 with the majority of lawful votes of 6295 to the 3rdd Defendant votes of 108 cannot be denied the opportunity to contest the main Election of 2019 by the 1st and 3rd Defendant, for which the primaries were conducted.
(j) An Order of this Honourable Court directing the

1st & 2nd Defendants to withdraw the nomination and sponsorship of the 3rd Defendant for the 2019 General Election, Etsako Central constituency seat of the Edo State House of Assembly, he having not emerged in compliance with Paragraphs 14, 18 (A-M) and 19(I-V) of Guidelines for the Nomination of Candidates for the 2019 General Election-Direct Primaries made pursuant to the 1st Defendant?s Constitution and the Electoral Act 2010 (As Amended) and substitute his name with the name of the Plaintiff who pulled the majority of the lawful votes at the primary of the 1st Defendant held on the 6th day of October 2018 as the duly nominated and sponsored candidate of the 1st Defendant for the Etsako Central Constituency Seat in the 2019 forth coming general Election to the Edo State House of Assembly.
(k) An order of injunction restraining the 1st and 2nd Defendants either by themselves, their servants Agents, Privies, Assigns, Authorized Representative or however described from fielding and sponsoring the 3rd Defendant and or any other candidate apart from the Plaintiff who pulled the majority of lawful votes at the Primary election of the 1st Defendant

held on the 6th day of October, 2018, for the forthcoming 2019 General Election, of the Edo State House of Assembly, Etsako Central constituency seat.
(l) An order of this Honourable Court directing the 2nd Defendant to expunge the name of the 3rd Defendant from the Register of the House of Assembly Candidates for the 2019 General Election and in its place the name of the Plaintiff as the lawful candidate sponsored by the 1st Defendant in the 2019 General Election for Etsako Central Constituency seat in the Edo State House of Assembly.
(m) An Order directing the 2nd Defendant to issue a certificate of return to the Plaintiff as the nominated and sponsored candidate duly elected at the 2019 general Election in the event that this suit is not determined before the 2019 General Elections are held.

The Appellant claimed that on the 6th of October, 2018, the 1st Respondent conducted its primaries for the Etsako Central Constituency Seat for the Edo State House of Assembly Election 2019, wherein the Appellant emerged as the candidate of the 1st Respondent for the Etsako Central Constituency Seat for the Edo State House of Assembly Election 2019. The

Appellant remained the candidate of the 1st Respondent for the Etsako Central Constituency Seat until 9th November, 2018, when he discovered that his name was unlawfully omitted and excluded on the list submitted to the 2nd Respondent.

The Appellant immediately commenced the suit which led to the instant appeal on the 22/11/2018 by filing an originating summons along with other accompanying processes to challenge the unlawful omission and exclusion of his name on the list submitted to the 2nd Respondent.
The Appellant filed originating summons as set out above on 22/11/18.

Further to the above, the Appellant filed a further affidavit dated 16th January, 2019, and a further, further affidavit dated 23rd January, 2019, both in support of the originating summons.

The 1st and 3rd Respondents filed a Counter-Affidavit and Written Address to the Originating summons on the 24th December, 2018, and subsequently filed a Notice of Preliminary Objection on 15th January, 2019 on the ground that the suit is statute barred as the suit is premised on the primaries that occurred on 6/10/18.

The Appellant in response to the 1st& 3rd

Respondents? Notice of Preliminary Objection filed a reply on points of law dated 22nd January, 2019, but filed 23rd January, 2019. The Appellant also filed a reply on points of law to the 1st & 3rd Respondents? written address in opposition to the originating summons dated 14/1/19, but filed on 16/1/19.

The 1st & 3rd Respondents subsequently filed a further counter affidavit and written address on 6th February, 2019 and also a Reply on points of law dated 5th February, 2019 but filed 6th February, 2019.

The trial Court on the 19/3/19, took argument on the originating summons together with the preliminary objection.

As stated earlier, on the 11/4/19, the trial Court delivered its judgment wherein the trial Court struck out the suit of the Appellant on the premise that it was statute barred having not been filed within 14 days from 6/10/18.

Counsel noted dissatisfaction about the fact that the trial Court refused to determine the originating summons on the merit even when the Court took argument on the originating summons together with the preliminary objection.

The Appellant being dissatisfied with the judgment filed

2 notices of appeal. He is however relying on the notice filed on 24/4/19 for the purpose of this appeal.

In the Appellant?s brief settled by Olayode Delano SAN and D.A. Alegbe Esq. filed on 15/5/19, the Appellant identified 2(Two) issues for determination in this appeal as follows:
i. Whether the cause of action arose on the 6th October, 2018, in the suit of the instant appeal.
ii. Whether the originating summons ought not to have been determined on the merit in the circumstances of this appeal.

In the 1st & 3rd Respondent?s brief settled by Ken E. Mozia SAN and Santos Owootori Esq., filed on 21/5/19, the Respondent identified 2 (Two) issues for determination as follows:
i. Whether the lower Court was right on the basis of the issues canvassed by the parties to decline jurisdiction for failure of the Appellant to comply with the provisions of Section 285 (9) of the 1999 Constitution (4th Alteration No 21) Act, 2017 in filing his suit?
ii. Whether the subsequent non-consideration of the merit of the case by the learned trial judge of the lower Court occasioned a miscarriage of justice.

The issues formulated by

both counsel are basically the same even though couched differently. I will adopt for the determination of this appeal, the issues as couched by the Appellants counsel:
i. Whether the cause of action arose on the 6th October, 2018, in the suit of the instant appeal.
ii. Whether the originating summons ought not to have been determined on the merit in the circumstances of this appeal.

ISSUE ONE
Whether the cause of action arose on the 6th October, 2018, in the suit of the instant appeal.

Mr. Delano SAN argued that undoubtedly, from the findings of the trial Court, the Court struck out the suit of the instant appeal for being statute barred based on the event of 6th October, 2018.

Senior counsel argued that ?statute bar? is a common principle of law which gives time limit during which certain actions or steps should be taken and one is barred from taking such actions or steps after the period specified in the applicable statute. Counsel citedAraka v. Ejeagwu (2000) 12 S.C Pt. 1 Pg. 99.

He argued that where an action is statute barred, a party who might have had a cause of action loses the right to enforce

the cause of action by judicial process because the period of time laid down by the applicable statute for instituting such an action had elapsed.

Senior counsel conceded that the suit of the instant appeal falls within the category of a pre-election matter as contemplated by Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended by the 4th Alteration, No 2) and there are statutory time limits for filing pre-election matters. He also conceded that S. 285 (9) of the Amended Constitution is applicable to this case.

Senior counsel however argued that the time limitation contained therein is predicated on the occurrence of the event, decision or action complained of in the suit, which is the cause of action.

Counsel further submitted that a cause of action means the cause of complaint. It is the fact or combination of facts, which gives rise to a right to sue and it consists of two elements- the wrongful act of the Defendant, which gives the Plaintiff his cause of complaint, and the consequent damage. Adesokan v. Aderegolu (1997) 3 NWLR Pt. 493 Pg. 261 SC was cited as authority.

Senior counsel submitted that

the position of the law is trite that to determine the date of accrual of the cause of action, the Court only needs to look at the Plaintiff?s claim. This is so because it is the claim of the Plaintiff that determines the jurisdiction of the Court entertaining the suit. Senior counsel cited Adeyemi v. Opeyori (1976) 9-10 SC 31.

Senior counsel argued that the Court is bound to look at all the affidavit in support of the originating summons which would reveal the time the action complained of by the Appellant actually arose.

Counsel further argued that the Appellant herein is not complaining against the event of 6th October, 2018, as such, the 14 days limitation as provided in Section 285(9) cannot begin to run from 6/10/18 as held by the trial Court in the instant case.

Counsel argued that parties approach the Courts for redress for wrongs done to them and not otherwise. In the same vein, an action cannot be instituted by a party who is not aware or does not have knowledge of any wrong done to him.

Counsel insisted that until there is a grievance there cannot be a complaint to approach the courts with.

Counsel urged the Court to

give a wholistic reading of the various affidavit in support of the originating summons.

Senior counsel cited Okechukwu v. INEC & Ors. (2014) LPELR-2289 (CA); Capital Bancorp Ltd v. Shelter Savings & Loans Ltd. (2007) ALL FWLR Pt. 352 Pg. 1695 S.C; Sifax Nig. Ltd & Ors v. Migfo Nig. Ltd (2018) 9 NWLR Pt. 1623 Pg. 138.

Senior counsel submitted that by the provisions of 285(9) Constitution of the Federal Republic of Nigeria, 1999 (As amended) by the 4th Alteration, No. 2), the 14 days limitation to initiate the suit of the instant appeal from the date of the occurrence of the action complained of in the suit starts from 9th November, 2018, as against the 6th October, 2018, as held by the trial Court.

Counsel argued that the Appellant in the instant appeal became aggrieved on the 9th November, 2018, upon discovering that his name was unlawfully omitted and excluded on the list of candidates forwarded to the 2nd Respondent.

Counsel argued that the trial Court was obviously in error in holding that the time to initiate the suit of the instant suit began to run on 6th October, 2018, when the Appellant suffered no wrong nor has any

grievance against the events and activities of 6/10/18.

Senior counsel cited Nigeria Ports Authority v. Abu Airadion Ajobi (2006) LPELR-2029 (SC) while he urged us to discountenance the judgment in CA/A/103/2019, Senator Aijogu Eze & 3 Ors v. Barr. George Ogara & Ors delivered on 7/3/19 as inapplicable to this case.

In response, learned senior counsel for the 1st & 3rd Respondents argued that the word shall as used in S. 285 (9) of the 1999 Constitution as amended makes it mandatory that any party seeking to ventilate grievances in respect of a pre-election matter must do so within the 14 days window, as provided in the said section. An examination of the affidavit of the Appellant in support of his originating summons filed on 22/11/19 will reveal that the date of the event or occurrence of the event complained of was the 6th day of October, 2018 when the primaries of the 1st Respondent was conducted to select the candidate for the Etsako Central Constituency.

Senior counsel also referred the Court to paragraphs 12, 21, 23, 25, 27, 32, 40, 45, 47 of the affidavit in support of the originating summons.

Counsel submitted that an affidavit in support of an originating process or motion stands as evidence of the facts deposed to in a case. The Courts are usually enjoined to consider the averments in the affidavit and the annexed exhibits before arriving at their decisions.

Counsel contended that the Appellants? grouse with the conduct of the 1st Respondent in selecting and nominating a candidate for the Etsako Central Constituency arose from the conduct of the primaries held on 6th October, 2018. That it is the case made out by the Appellant?s own affidavit filed on 22/11/18. Thus the event that led to the action of the Appellant, or the action complained of in this appeal, emanated from the primaries of the 1st Respondent which held on 6/10/18. Parties are bound by their pleadings, and cannot depart from the case made out by them.

Senior counsel cited NNPC v. Famfa Oil Ltd. (2012) 17 NWLR Pt. 1328 Pg. 148 at 189; PDP v. Sani Ali & Ors (2015) LPELR-40370 (CA); Denca Services Ltd. v. Ifeanyi Chukwu Osondu Co. (2013) LPELR-22005 (CA).

Learned Senior counsel argued that when reading the 50 paragraph affidavit of the Appellant, this Court

would not discover any paragraph of the affidavit in support wherein it was averred by the Appellant that the alleged unlawful exclusion and omission of the Appellant?s name was discovered on 9/11/18. In other words, there is no paragraph (s) in the Appellant?s affidavit in support of his originating summons wherein he stated that it was on the 9th of November, 2018 that he allegedly discovered that his name had been purportedly unlawfully excluded. Counsel insisted that it was when the 1st & 3rd Respondents at the trial Court raised the issue of the time limit in Section 285(9) of the 1999 Constitution (4th Alteration No 21) Act, 2017 by filing their notice of preliminary objection on 15/01/19, that the Appellant became creative and filed a further, further affidavit in support of the originating summons and a reply on point of law to the Notice of Preliminary objection both filed on 23/1/19, alleging that it was on the 9/11/18 that he discovered the alleged exclusion, and that his time to file his petition started to count from 9/11/18. However, an examination of the Appellant?s affidavit in support of his originating summons will reveal

that the Appellants cause of action which gave rise to this appeal are all predicated on the occurrence of the event of the 1st Respondents primaries held on 6/10/18. In addition to this fact, the Appellants complaint was that the 1st Respondents Guidelines in relation to the selection or nomination of candidates for Etsako Central Constituency for the Edo State House of Assembly was not complied with. This complaint is also predicated on the 1st Respondents party primaries held on 6/10/18. The Appellant cannot run away from this fact.

Learned Senior counsel argued that the story and the further, further affidavit came into existence after the preliminary objection had been raised.

Learned Respondent?s counsel further argued that the said 9/11/18 date being propagated by the Appellant in his brief is only an attempt to bring the Appellant within the 14 days time limit by creating an imaginary incident. The 1st Respondent forwarded its list of candidates to the 2nd Respondent on 2/11/18, as clearly shown by the stamp of the 2nd Respondent on the documents attached to the Counter affidavit to the originating

summons filed on 24/12/18.

Counsel argued that the 2nd Respondent issued Form CF001 to the 3rd Respondent, which was also received and marked by the 2nd Respondent on 2/11/18.

Counsel submitted that these facts have not been controverted by the Appellant, it leads to the irresistible conclusion that it cannot be true that the Appellant only discovered or knew that his name was purportedly excluded on 9/11/18 when the 1st Respondent had already sent its list of candidates to the 2nd Respondent since the 2/11/ 18.

Learned senior counsel urged this Court to follow the precedent in Senator Eze & 3 Ors v. Barr. George Ogara & Ors supra since the facts are on all fours with the facts of this case. Counsel held that this Court should follow the ratio of this Court in Senator Eze & 3 Ors v. Barr George Ogara & Ors., where this Court overruled the opinion of the trial Court that the important consideration (on when time starts to run) is when the Plaintiff/Claimant becomes aware of the decision complained against. Respondent Counsel vociferously insisted that there is no documentary evidence from the Appellant, to positively affirm that

the alleged unlawful omission or exclusion of the Appellant came to his notice on 9/11/18. The burden is on the Appellant to prove this fact, which he has failed so to do.

OPINION
Section 285 (9), Constitution of the Federal Republic of Nigeria, 1999 (As Amended by the 4th Alteration, No. 2) provides as follows:
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.
This issue turns on the applicability of the above provisions viz S. 285(9) of the 1999 Constitution as amended by the 4th Alteration No 2. All parties are agreed on this point. The area of divergence is the assertion by the Appellant that the case is not statute barred by virtue of Section 285(9) and the insistence by the 1st& 3rd Respondents that the claim is caught and has abated by virtue of the provisions of S. 285 (9) of the Constitution.
It is trite that it is a cause of action that gives way to the right to maintain an action premised on wrong done to a person.
Generally, an action cannot be

filed or maintained until the accrual of a cause of action which is the event whereby a cause of action becomes complete so that the aggrieved party can begin to maintain his cause of action.
While the Appellant is saying that he has no quarrel with the conduct of the primaries held on 6th October 2018 but with the consequential exclusion of his name from the list of candidates sent by the National Working Committee to the 2nd Respondent on 9/11/18.
In these types of cases of the invocation by the defendant of the limitation provisions of a statute against the Plaintiff as a shield to litigation, the judex must be careful to look at the statement of claim closely to discern when the cause of action arose and not to blindly follow general judicial precedent in order to arrive at a just decision in the peculiar circumstances of the case brought for determination. In other words, each case must be decided on its own peculiar facts.
Let me set out the case as made out by the Appellant in the relevant paragraphs of the originating summons and the further further affidavit in support of the said summons.
Paragraphs 31, 32, 33, 39, 40, 45 and 46

of the affidavit in support of the originating summons sworn on 22/11/2018 state as follows:
“31. That I am the lawfully elected Candidate of the 1st Defendant for the Edo State House of Assembly at Etsako Central Constituency Seat.
32. That I emerged as the candidate of the 1st Defendant, having contested the Primary Election of the 1st Defendant and pulled the majority vote at the primary Election of the 1st Defendant for the Etsako Central Constituency Seat of the Edo State House of Assembly forthcoming General Election 2019 held 4th and 6th day of October, 2018.
33. That when the name of the candidates for the Edo State House of Assembly was released by the 2nd Defendant, I discovered that my name was unlawful (sic) excluded by the National Working Committee of the 1st Defendant with the name of the 3rd Defendant, in the list of candidates of the Edo State House of Assembly forwarded to the 2nd Defendant by the 1st Defendant as its nominated candidate for the 2019 General election for the issuance forms C001 and C002.
39. That it was the collated results from the 10 wards that constitute Etsako Central Constituency that was added

together wherein I scored the majority of the lawful votes of 6295 before I was returned and declared as the Nominated candidate of the 1st Defendant entitled to be sponsored by the 1st Defendant in the forthcoming General Election.
40. That after my declaration as the winner of the Primary election of the 1st Defendant held on the 6/10/18 as the nominated candidate of the 1st Defendant for sponsorship in the 2019 General Election, the 3rd Defendant protested to the Edo State Chapter of the 1st Defendant for which my response was required. A copy of my rejoinder to 3rd Defendant protest it (sic) attached and marked as Exhibit LDA006.
45. That to my greatest surprise, after the Edo State Chapter of the 1st Defendant forwarded my name as the duly Nominated candidate of the Etsako Central Constituency Seat arising from the 1st Defendant Primary Election held on 6/10/18, to the National Working Committee of the 1st Defendant for sponsorship at the 2019 General Election and to forward my name to the 2nd Defendant as its nominated and sponsored candidate, I discovered that my name is missing from the list forwarded for no just course.
46. That I won

the primary election of the 1st Defendant but I am being denied the opportunity to contest in the main election for which the primaries where (sic) conducted.”
Paragraphs 1, 2 and 3 of the further, further affidavit in support of the originating summons sworn on 23/1/19 which is as follows:
1. That from the 6/10/18 when the primaries was conducted I emerged the winner of the primary I remained the candidate of the 1st Defendant until I discovered that my name was omitted on the 9/11/18 resulting in the petition Exhibit LDA007.
2. That it was on the 9/11/18 that I became aware, that my name was not the one forwarded to the 2nd Defendant by the 1st Defendant?s National Working Committee but the name of the 3rd Defendant that was forwarded.
3. That from on the 9/11/18 when I became aware that my name was not the one forwarded by the 1st Defendant to the 2nd Defendant and when I filed my originating summons is within the 14 days prescribed by law.?
What is clear to me from the above is that contrary to the assertions of the 1st & 3rd Respondents, the Appellant had no quarrel with the conduct of the Edo State Primary

Election organized and conducted on 6/10/18 by the 1st Respondent for delegates to nominate candidates who would represent the 1st Respondent as the candidate of the party for Etsako Central Constituency seat for the Edo State House of Assembly Election in 2019. I agree with the learned Appellant?s counsel that nothing in the above paragraphs of the affidavit in support of the originating summons and the further and further affidavit indicate that the Appellant had a quarrel with the way the primary election of 6/10/18 was held since according to him, at the end of the tally of all votes from all wards, he won the primaries by a landslide.
The argument of the 1st & 3rd Respondent is completely misconceived on this point. The fact that the Appellant complained that the 1st Respondent did not follow its own guidelines in nomination of candidates to the appropriate authorities at the end of the primaries does not translate into complaint against the primary election itself. A complaint against failure to follow party guideline may include complaint against the conduct of the primary election itself or the actions of party officials after the

primaries in sending names of candidates dully nominated by the party members at the primary election. The Appellant here is complaining of being substituted AFTER the primary election took place. I agree with the learned Appellant?s counsel that it was erroneous of the learned trial judge to conclude that the cause of action arose on 6/10/18.
So if there is no complaint against the event of 6/10/18, when particularly did the cause of action arise in this case?
From the affidavit of the Appellant, the following is the sequence of events:
1. Primary election held on 6/10/18
2. Appellant?s name forwarded by the Edo State Chapter of All Progressive Congress (APC) as the duly nominated candidate to the National Working Committee of APC-NO DATE SUPPLIED BY THE APPELLANT
3. National Working Committee forwarding names of candidates to the 2nd Respondent on 9/11/18.
Let me first say, that arriving at a just determination of this appeal gave me some anxious moments. I am sorry that I have to depart from the views of my learned brothers as stated in Senator Eze & 3 Ors v. Ogara & Anor supra that it was erroneous of the

learned trial judge to hold that the important consideration in this type of circumstances on when time starts to run is when the Plaintiff becomes aware of the decision complained against. My Lords held the view in that case that the aforestated stand runs contrary to the provisions of S. 285 (9) of the 1999 Constitution and will render the essence of limitation of no consequence.
I have read Eze & 3 Ors v. Ogara & Anor. supra. I am of the humble view that given the facts of that case, this Court could not have made contrary findings to what it did given the facts before the Court. However, I beg most humbly to depart from the jurisprudence espoused in that case which is in essence that whether or not a person aggrieved is aware that indeed his right has been compromised as soon as his right has been compromised, then the statutory limitation period begins to run against him. That with the greatest respect cannot be justice. I have pondered on the precise provisions of the Constitution which states that time starts to run ?from the date of the occurrence of the event, decision or action complained of in the suit?. This on

the face of it seems to mean that time starts to run when the event occurs rather than when the Plaintiff knows of it and is thus in a position to activate machinery to defend his rights. As I said earlier, that cannot be justice as the courts cannot impute an intention to perpetrate injustice and violate fundamental human rights into the letters of the Constitution. I would rather with greatest respect go by way of the time honoured rule of interpreting limitation provisions which is that, time cannot start to run against the aggrieved until he is aware of the violation of his rights. In Sifax Nig. Ltd & Ors. v. Migfo (Nig.) Ltd. (2018) 9 NWLR Pt 1623 Pg. 138 in an unanimous decision delivered by Honourable Justice Amina Augie, the Supreme Court dismissed the appeal. The Court reasoned that the Court of Appeal was right in its determination that the Respondents? suit was not time barred under the limitation law because time begins to run against a claimant from the day such Claimant becomes or ought to become aware of the injury/breach that formed the basis for the cause of action.
The Supreme Court at Pages 178-179 Par. F-B held as follows:

At this stage, the issue is not whether these allegations are true or not; the issue is when the cause of action accrued, as gathered from the pleadings. The appellants say that it was when the fifth appellant was incorporated but, as the respondents rightly submitted, it is a well established principle that the right of action accrues when the person that sues becomes aware of the wrong – See UBA v. BTL Ind. Ltd. (supra); Jalco Ltd. v. Owoniboys Tech. Services supra and Mulima v. Usman (supra), at Pg. 201, Par F-G wherein Okoro, JSC, observed after noting the decision of this Court in UBN v. Umeoduagu (2004) 13 NWLR Pt. 890 Pg. 352.
I think it is only reasonable and just that a party can only sue when he becomes aware that his right has been tampered with, for, as long as he is unaware that someone has dealt with his property inconsistent with his ownership, he cannot sue as you cannot shave a man?s hair in his absence.
In UBN v. Umeoduagu (2004) 13 NWLR Pt. 890 Pg. 369 Par. D-E supra, this Court hit the nail on the head as follows:-
From the combination of facts given by the respondent it is abundantly clear that he came

to know about the whereabouts of the missing money when he conducted a search which took him to the Central Bank. It was then that he discovered that the money had been kept in the Central Bank in the Appellant?s name. The discovery has established a prima facie default by the Appellant. It was only then that the cause of action has arisen and respondent could institute a claim for recovery of the amount.
Every case is decided on its merit, which means that it is the circumstances of each case that determines what effect any principle of law would have on it. In the circumstances of the case, the principle that a person can only sue when he becomes aware of the wrong done to him takes a deep significance when it is considered that the respondent?s complaint is that the wrong done to them by the appellants amounts to injustice, betrayal, breach of trust, and fraud, etc.
I am yet to find succor on this fine legal point regarding S. 285(9) after reading the decision of the Supreme Court in an appeal similar but not on all fours with the facts of this case where the same S. 285(9) of the 1999 Constitution was pronounced upon. In

APC & Anor v. Eng. Suleiman Aliyu Lere & 1 Or. SC/222/2019 delivered on 11/4/19 in which reasons were given on 10/5/19, the Supreme Court per Rhodes-Vivour JSC who wrote the lead judgment held that it was the day the 1st Appellant forwarded the name of the 2nd Appellant as its candidate for the general election that the cause of action arose. The Supreme Court held that the wrongful act by the 1st Appellant occurred on 18/10/2018 which was the day the 1st Respondent had a complete cause of action. InAPC v. Lere supra, the Respondent had exhibited in his first affidavit in support of his originating summons a copy of the list of candidates forwarded by the 1st Appellant to the 2nd Respondent. In his further affidavit, the claimant attached the certified true copy of the list of candidates forwarded by his party to INEC on 18th October 2018 which was the date the cause of action was held to have arisen. As at the time of writing this opinion, I only had the privilege of seeing the judgment of Odili and Augie JJSC in that case. Contributing to that judgment, Amina Augie JSC held as follows:
Obviously, the Respondent is right; a right of action

can only accrue when the person, who sues becomes aware of the wrong- See Jalico v. Owoniboys Tech. Service (1995) 4 NWLR Pt. 391 Pg. 53; UBN v. Umeoduagu (2004) 13 NWLR Pt. 890 Pg. 352 and Mulima v. Usman (2014) 16 NWLR Pt. 1432 Pg. 160, wherein Okoro JSC, said:
I think it is only reasonable and just that a party can only sue when he becomes aware that his right has been tampered with, for, as long as he is unaware that someone has dealt with his property inconsistent with his ownership, he cannot sue as you cannot shave a man?s hair in his absence.”
The above opinion of Augie JSC seems to be in tandem with the view that the cause of action even in this type of cases would be when the claimant becomes aware that he has been substituted.
It seems to me that the Courts because of the specific wordings of S. 285 (9) of the Constitution, on a consideration of the affidavit or writ/Statement of Claim in this circumstance must decide whether to choose when the action which caused the grievance occurred, or choose the date when the aggrieved person became aware of the damage to his rights in order to challenge same.

Let us now go back to the evidence before us of the case at hand. Exhibit LDA006 is a petition written to the National Chairman of the 1st Respondent on 16/10/18 to the effect that the Appellant was the winner of the primary election which was conducted in accordance with party guidelines. More than 117 party faithfuls signed the petition on behalf of the Appellant. It is on Pages 118-125 of the Record. On Pg.121 of the petition written by concerned members of APC signed by 117 party members, the writers prayed first that:
That the National Leadership of our party led by Comr. Adams Aliyu Oshiomole should kindly rescind the decision to substitute Hon Barr Damian Lawani with Barr Ahmed Waziri Oshomah.
At that stage in my view, the Appellant was still exploring party machinery to solve his political problems which he was aware of. By the same token, it would not be in the realm of speculation for the Court to find that even as that date the Appellant could be deemed aware of his substitution.
By the Exhibits attached to the counter affidavit to the originating summons, filed on 24/12/18, the 1st Respondent forwarded its list of candidates to

the 2nd Respondent on 2/11/18 and my examination of the supplementary record shows that it was received on that day by the 2nd Respondent in Abuja. By the lead judgment in the Supreme Court decision in APC V. Lere supra, the violation of the Appellants rights in substituting him with another candidate occurred on 2/11/18 and the 14 days would lapsed on 16/11/18. Even if I were inclined to give my own liberal interpretation on a holistic reading of the various opinions of the Hon. Justices of the Supreme Court, I have to say that in this case, the Appellant did not show that anything of importance in the process he was engaged in occurred on 9/11/18 which triggered his awareness that his name had not been sent to Abuja and that someone else?s name was in fact sent. In my humble view, where for example, the circumstances as shown by the Claimant is that he was deliberately deceived into believing that he could rest easy and had nothing to fear and actions were taken surreptitiously behind his back which made it impossible for him to know that in fact another person?s name had been sent to INEC instead of his name, the Claimant would have the

burden to prove when and how he knew that his rights had been violated so that the Court could consider that date as the date the cause of action arose. That is not the case in this appeal. In fact, by the showing of the Appellant in paragraph 45 of the affidavit in support of the originating summons, he knew that his name was being substituted before it was actually done, hence the petition to Abuja by his supporters dated 16/10/18.
The Appellant did not at the stage of filing the originating summons give the date he discovered that his name was missing from the list. It was after the preliminary objection was filed that the Appellant filed the further further affidavit wherein he stated that he became aware only on 9/11/18 that his name had been substituted with that of the 3rd Respondent. I am inclined to agree with the learned senior counsel for 1st& 3rd Respondents that the date pulled from the hat of the Appellant is a belated attempt to bring his story in line with the law.?
In any event, as I said earlier, by the doctrine of stare decisis which venerates the lead judgment in a panel I am bound by the opinion of the Supreme Court as set out

in the lead judgment in APC v. Lere supra to hold that since the 1st Respondent sent the name of the 3rd Respondent to the 2nd Respondent on 2/11/18, that was when the Appellant became aggrieved and his cause of action arose. In the circumstances, the summons filed on 22/11/18 was filed contrary to the provisions of S. 285(9) of the 1999 Constitution, thus the learned trial judge had no jurisdiction to entertain the claim and the claim was liable to be struck out.
Even though I held earlier that the learned trial judge was wrong to have held that the cause of action accrued on 6/10/18 when the primaries were held, it is trite that the duty of the Court of Appeal is to determine whether the decision of the learned trial judge was right and not whether the reasons given for the decisions were right. SeeDairo v. UBN Plc. (2007) 16 NWLR Pt. 1059 Pg. 99; Ndayako & Ors v. Dantoro & Ors (2004) 13 NWLR Pt. 889 Pg. 187 at 220 (SC); Ukejianya v. Uchendu (1950) 13 WACA 45; Abaye v. Ofili (1986) 1 NWLR Pt. 15 Pg. 134 at 179. This issue is resolved against the Appellant.

ISSUE TWO
Whether the originating summons ought not to have been determined on

the merit in the circumstances of this appeal.

Learned senior counsel for the Appellant argued on this issue that in consonance with the provisions of the law and the rules of the trial Court as well as Section 285(8) Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No. 21) Act, 2017, the trial Court on 19/3/19, having taken argument on both the originating summons together with the preliminary objection, adjourned for judgment. However on 11/4/19, the Court determined only the preliminary objection.

Senior counsel argued that by the provisions of Section 285 (8), the Court in a pre-election suit is expected to suspend its ruling on a preliminary objection and deliver it at the stage of final judgment in the suit, that is, the Court would deliver its ruling on the preliminary objection along with the final judgment on the merit of the suit.

Senior counsel complained that the trial Court only ruled on the preliminary objection and failed to determine the originating summons on the merit as expected even though the Court had taken arguments in respect of both matters. Counsel argued that the failure of the Court to consider

the merit of the case has caused it to suffer gross miscarriage of justice since a Court has a statutory duty to consider and make pronouncement on both the preliminary objection and the merit of the summons. Counsel argued that it was wrong of the learned trial Court to confine itself to the determination of issues which it considered sufficient to dispose off the case.
Counsel cited Spring Bank Plc. v. Dokkin Ventures Nig. Ltd (2012) LPELR-7983 (CA); Brawal Shipping v. Onwadike co. ltd (2000)6 SCNJ 508 at 522.

Counsel then urged that if this Court should resolve the preliminary objection in favour of the Appellant, it should rehear and determine the originating summons pursuant to S. 15 of the Court of Appeal Act particularly in the peculiar circumstances of this case in view of the provisions of Section 285 (10) of the Constitution which limits the limit for hearing and determination of pre-election cases. Counsel argued that it is expedient for this Court to activate S. 15 of the Court of Appeal Act in view of the fact that the 180 days limit for the trial Court to hear the suit lapses on or about 20/5/19 and proceed to determine the substantive claim

before the trial Court. Counsel urged this Court to be persuaded by the decision of this Court in CA/B/135/19 between Rt. Hon. Kabiru Adjoto v. Hon. Peter Akpatason & Ors delivered on 15/4/19 wherein the trial Court refused to determine the substantive matter having decided the interlocutory matter.
This Court in that case decided the substantive matter when the trial Court did not do so.

In response, learned senior counsel for the 1st & 3rd Respondents argued that there was nothing wrong with the lower Court in dealing with the issue of jurisdiction first.

Counsel submitted that the Notice of objection and the substantive suit were rightfully argued together in line with the direction in the case of Inakoju v. Adeleke (2007) 4 NWLR Pt. 1025 Pg. 423.
Counsel also cited Umanah v. Attah (2006) 17 NWLR Pt. 1009 Pg. 503 at 525; Brittania-U Nig. Ltd. v. Seplat Petroleum Development Company (2016) LPELR-4007 (SC).

Learned senior counsel argued that a look at paragraph 2:09 of the Appellant?s brief shows that it was contended that the Appellant has no grouse or complaint before the trial Court against the primaries or events of

the 6/10/18 being the date the primaries were held. The effect of this submission is that the Appellant has admitted that his case does not come within the purview or narrow confines of Section 87 (9) and (10) of the Electoral Act 2010 (As amended). In the case of Oduah v. Okadigbo & 3 Ors.(2019) 3 NWLR Pt. 1660 Pg. 433 at 463-464, the Supreme Court held that where a party states affirmatively that the guidelines of the party in his case and the provisions of the Electoral Act were fully complied with, he would have removed his or her claim from the narrow confines of Section 87 (9) of the Electoral Act, that will be the effect of an aspirant asserting that he has no grouse or complaint against the primaries held. This is the reason why counsel urged that it be determined that the failure to pronounce on the merits of the case by the trial judge, did not occasion a miscarriage justice.

Senior counsel submitted that in this instant appeal, the Appellant has no single shred of documentary evidence to back up his false assertion that he allegedly won the primaries of the 1st Respondent conducted on 6/10/18. The Appellant has no result sheet(s) to prove

his assertion of being declared winner of the primaries of the 1st Respondent.

Senior counsel submitted that this Court cannot determine the merits of this case due to the irreconcilable conflicting and hostile facts of the suit at the lower Court and urged us to hold in the circumstances that the provisions of Section 15 of the Court of Appeal Act does not apply to the facts and circumstances of this appeal. Counsel cited Ajayi v. Adebiyi (2012) 11 NWLR Pt. 1310 Pg. 137at 174.

Counsel concluded by arguing that there was no miscarriage of justice by the lower Court in not pronouncing on the merits of the case. It is the 1st and 3rd Respondent?s contention that jurisdiction, being a threshold issue, the Court before which it was raised must mandatorily look at it at the earliest stage or opportunity and determine whether it had jurisdiction or not.

OPINION
By the resolution of issue 1 in favour of the 1st & 2nd Respondents, the appeal is liable to be struck out for want of jurisdiction. However, it is expedient and in the interest of justice not to fall into the same pit fallen into by the learned trial judge in refusing to determine

the merits of the originating summons having heard and adjourned it for judgment with the preliminary objection.
The best practice and current conventional wisdom which saves judicial time, prevents lengthy litigation and waste of the financial resources of litigants is that trial Courts and lower Courts should as a general rule pronounce on and determine all issues submitted to them for determination so that the appellate Court may have the benefit of their opinion on the matter. This obviates the need to send the case back to the lower Court for resolution with the attendant high cost of and unnecessary delay in resolving the crucial issues agitating the parties. See Brawal Shipping v. Onwadike co. ltd supra; Bello v. Diocesan Synod of Lagos (1973) 3 SC 102; Oro v. Falade (1995) 5 NWLR Pt. 396 Pg. 385; Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 5 NWLR Pt. 656 Pg. 322; Ikechukwu v FRN (2015) 7 NWLR Pt. 1457 Pg. 1; Owuru v. Adigwu (2018) 1 NWLR Pt.1599 Pg. 1. This Court is the penultimate Court of the land. In the event, the Appellant is dissatisfied with the resolution of the first issue and goes on appeal, it would be efficient if the Hon. Justices

of the Supreme Court can get the benefit of our opinion on the merit of the originating summons. The peculiar circumstances of this particular appeal demands that all loopholes to delay must be plugged by the Courts.
S. 285 (10) of the Constitution as amended provides as follows:
A Court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit.
This Court is the only recourse now open to the Appellant for the effective and full determination of his complaints at trial. In fact this is an ideal example of when it is apt to activate the full force of our powers donated by Section 15 of the Court of Appeal Act 2004 as follows:-
The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to

make or grant and may direct any necessary inquiries or account to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such rehearing or may give other further directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below is that Court?s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.
I am amply supported in this procedure by the recent opinion of my learned brothers in Rt. Hon Adjoto v. Hon. Akpatason and Ors. supra where my Lord Adumein JCA opined as follows:
In this case, the trial Court, after deciding the question relating to its jurisdiction, ought to have proceeded to decide the all-important issue of who won the disputed primary election, based on the evidence before it. Having regard to the fact that the Appellant?s suit was filed on 18th day of

March, 2019, remitting the suit to the trial Court for its reasons on the merits of case will be an exercise in futility in view of Section 285 (10) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which requires a pre-election suit to be determined by the High Court within 180 days from the date of filing the suit. In any case, the evidence before the trial Court is substantially documentary and this Court is in good position as the trial Court to evaluate the it(sic). It is now settled that it is not in every case, where a lower Court has failed in its primary duty that an appellate Court will remit case to that Court for rehearing or retrial. See Yusuf v. Co-operative Bank Ltd (1994) 7 NWLR Pt. 359 Pg. 676; Katto v. CBN (1999) 6 NWLR Pt. 607 399; Osasona v. Ajayi (2004) 14 NWLR Pt. 894 Pg. 52.I am following the above dicta and will proceed to consider the merit of the originating summons.

I have looked at the affidavit in support of the originating summons and the further affidavit and the further further affidavit in support of same to see whether I can see from the evidence of the Appellant any shred of documentary

evidence to base his claim that he won the primaries conducted by the 1st Respondent on 6/10/18.
In the circumstances of this case, there is conflicting affidavit evidence regarding who won the primaries. However, where there is clear and uncontroverted documentary evidence, it serves as a hanger on which to anchor the credibility of a version of the oral (affidavit) evidence. See Interdrill (Nig.) Ltd. & Anor. v. UBA PLC (2017) LPELR-41907(SC); Kimdey & Ors. v. M.G. of Gongola State (1988) 2 NWLR Pt. 77 Pg. 473; Omoregbe v. Lawani (1980) 3-4 SC Pg. 117. It is not only by calling oral evidence that such conflict should be resolved. There may be authentic documentary evidence which supports one of the affidavits in conflict with another. In a trial by affidavit evidence such as this, that document is capable of tilting the balance in favour of the affidavit which agrees with it. After all, even if oral testimony had been called, such a documentary evidence would be yardstick with which to assess oral testimony. See Fashanu v. Adekoya (1974) 1 ALL NLR 35, at Pg. 48; Nwosu v. Imo State Environmental Sanitation Authority & Ors (1990) LPELR-2129 (SC).

To the affidavit in support of the originating summons the Appellant attached Exhibits LDA006 dated 16/10/18 and LDA007 dated 9/11/18 which are two petitions written respectively by party members to the National working Committee against his proposed and eventual substitution by the party. Over a hundred persons signed each petition on his behalf. However, those petitions written well after 6/10/18 cannot be credible evidence of what happened at the primary election to the effect that he actually won the primaries.

The further Affidavit by the Appellant indicates that some of the person who allegedly acted as the returning officers at the primary election swore to affidavit to the effect that the alleged return made by them as returning officers at the primaries were false. The problem still remains that these are negative evidence and not positive evidence of the scores of the Appellant at the primary election.

On the other hand, the 1st & 3rd Respondents had attached the Committee Report on the Legislative Primaries Committee (National Assembly and State Assembly) Edo states submitted to the National Working Committee, at the All

Progressive Congress National Headquarters in Abuja on 8/10/18.

The report was signed by Haj. Farida Suleiman as Chairperson and Comrade Basiru Yusuf as Secretary. It is on Pgs 63-70 of the Supplementary Record. On Pg. 69 of the report, the name of the 3rd Respondent appeared as the name of the returned aspirant for Etsako Central Constituency with the total votes of 9,058.

There is no certificate of return tendered by the Appellant to prove that he won the primary election. There is on the other hand evidence by the 1st & 3rd Respondents that the 3rd Respondent won the election.

I am persuaded that the onus of proof to grant the reliefs sought by the Appellant in the originating summons has not been discharged on a balance of probability and the Appellant is not entitled to the declarations and reliefs sought. This issue is resolved against the Appellant.

As I said earlier, the claim at the trial Court is bound to be struck out and it is hereby struck out. Even on the merit, the claims of the Appellant at trial cannot be sustained by the evidence. I hold in the circumstance that there is no merit in this appeal. The judgment of M.G.

Umar in suit No. FHC/3/CS/142/2018 delivered on 11/4/18 is hereby affirmed. Appeal Dismissed. I make an order of N200, 000. 00 (Two Hundred Thousand Naira only) costs against the Appellant for 1st & 3rd Respondents

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading in advance the erudite judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA.

My Lord has brilliantly and exhaustively treated all the salient issues raised in this appeal. I have nothing useful to add. I agree this appeal lacks merit in its entirety.

I abide by the final orders in the lead judgment (cost inclusive).

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the rare privilege of reading before now the judgment just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JCA.

My learned brother has comprehensively dealt with the issues in this appeal. I adopt and rely on the reasoning and conclusions of my learned brother as mine. I also dismiss the appeal and affirm the judgment of the trial Court.
I abide by the order as to costs.

Appearances:

Olayode Delano, SAN with him, I.I. Oikah, Esq.For Appellant(s)

Ken Mozia, SAN with him, M. O. Ojogho, Esq. for the 1st and 3rd RespondentFor Respondent(s)

Appearances

Olayode Delano, SAN with him, I.I. Oikah, Esq.For Appellant

AND

Ken Mozia, SAN with him, M. O. Ojogho, Esq. for the 1st and 3rd RespondentFor Respondent