HON. PRINCE SULE-IKO SADEEQ SAMI v. ALL PROGRESSIVE CONGRESS & ORS
(2019)LCN/13596(CA)
In The Court of Appeal of Nigeria
On Saturday, the 29th day of June, 2019
CA/S/77/2019
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
HON. PRINCE SULE-IKO SADEEQ SAMI Appellant(s)
AND
1. ALL PROGRESSIVE CONGRESS (APC)
2. SENATOR BALA IBN NA ALLAH
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
RATIO
WHETHER OR NOT WHERE THERE IS A COMPETENT NOTICE OF APPEAL, THE EXISTING GROUNDS OF APPEAL MAY BE AMENDED BY ALTERATION, ADDITION OR SUBTRACTION FROM THE ORIGINAL GROUNDS OF APPEAL
Now, it is settled law that once there is a competent Notice of Appeal, the existing ground(s) of appeal may be amended by alteration, addition or a subtraction from the original grounds of appeal filed. See AWOTE & ORS v. OWODUNNI & ANR (1986) 5 NWLR (Pt. 46) 941, COKER v. UBA PLC. (1997) LPELR-880 (SC).
It is also settled that, generally, this amendment can be made at any time with the leave of Court.Order 7 Rule 8 of the Rules of this Court provides: ?Notice of appeal may be amended by or with the leave of Court at any time?. So long as the conditions for the grant of leave are met and the amendment if granted will enable the applicant ventilate his grievance and serve the ends of justice, the Court often grants the application for amendment. See OKPALA v. IHEME (1999)20 NSCC (Pt. 2) 567, FBN v. MAY MEDICAL CLINICS (2001) 9 NWLR (Pt. 717) 31. PER WAMBAI, J.C.A.
WHETHER OR NOT THE COURT MUST INVOLVE THE PARTIES BY INVITING THEM FOR THER INPUT WHERE IT RAISES A ISSUE SUO MOTU
The position of the law on this issue has long been settled and is very clear. While a Court of law, both trial and Appellate, is empowered suo motu to raise an issue which it considers necessary for the proper determination of the case or appeal, or even one that is apparent on the record, it must, before deciding on the issue so raised, involve the parties by inviting them for their input, particularly the party that may be negatively or adversely affected by the issue so raised, so as not to infringe on the parties right to fair hearing. See KUTI V. BALOGUN (1989) 1 NWLR [PT.99] 566, 581, ABDULLAHI v. EXECUTIVE GOV. OF KANO STATE (2014) LPELR-23079 (CA). This requirement is the same even where the issue so raised is that of jurisdiction, the parties must be given an opportunity of being heard, DONGTOE v. C.S.C. OF PLATEAU STATE & 2 ORS (2001) 4 SCNJ 131 at 148 lines 5 – 14.
It is most inappropriate for the Court to suo motu raise an issue the resolution of which will determine the case or the appeal as the case may be, and in the resort of his chambers resolve the issue behind the parties. Doing so will be prejudicial to the effected party; it will amount to a denial of his constitutional right to fair hearing and occasion a miscarriage of justice. See LEVENTIS (NIG) PLC V. AKPU (2007)17 NWLR [PT.1063]416. In AIYETORO COMMUNITY TRADING CO. LTD V. NACB LTD (2003)12 NWLR [PT.834)346, @376, the Court held thus: “A trial or appellate Court can as of right raise issues that may aid the determination of the issue in controversy but it cannot decide such issue without the parties? counsel reacting to such issue raised suo motu by the Court…?
In the more recent case of WAGBATSOMA v. FRN (2018) LPELR- 43722(SC), the Supreme Court again reiterated the law when it stated thus: –
?It has been held severally by this Court that no Court, no matter how well-meaning, may raise an issue suo motu and resolve it without affording the parties an opportunity to be heard. The Court must confine itself to the specific issues raised by the parties and has no business considering an issue not properly before it. Raising and resolving an issue suo motu has the effect of making out a case for the parties which they did not make for themselves. A judge who raises an issue suo motu without affording the parties an opportunity to be heard before resolving it, has in effect descended into the arena of conflict. See:A.D.H. Ltd Vs Amalgamated Trustees Ltd. PER WAMBAI, J.C.A.
THE CONSEQUENCE OF A FUNDAMENTALLY DEFECTIVE ORIGINATING PROCESS
As an originating process, where the writ of summon as in this case is fundamentally defective, it is incapable of kick-starting the action or initiating any legal proceedings or to ignite the jurisdictional competence of the Court. It cannot invoke the jurisdiction of the Court. See BUHARI v. ADEBAYO (2014) 10 NWLR (Pt. ) 560.
The effect of initiating an action with an unsigned writ of summons was considered by the Apex Court in OMEGA BANK NIG. PLC v. OBC LTD (2005) ALL FWLR (PT. 249) 1964 AT 193 held:
?A document which is not signed does not have any efficacy in law. As held in cases examined, the document is worthless and a worthless document cannot be efficacious.?
Thus, failure to initiate the action with a valid writ of summons is a fundamental infraction, bothering on the jurisdiction of the Court to adjudicate over the matter. PER WAMBAI, J.C.A.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of S. B. Onu, J of the Federal High Court Birnin Kebbi Division, sitting at Birnin Kebbi in suit FHC/KB/CS/25/2018 delivered on 17th April, 2019 which dismissed the appellant?s pre-election matter and entered judgment in favour of the Respondents.
As a fall out of the Primary Elections conducted by the 1st Respondent (the APC) on the 3rd and 4th October, 2018 for the nomination of its candidate from Kebbi South Senatorial District for the 2019 General Elections, which produced the 2nd Respondent as its nominated candidate, the Appellant, one of the contestants and being aggrieved with the conduct of the Primary Election, approached the lower Court as plaintiff and took out a Writ of Summons claiming the following reliefs:
(a) A DECLARATION that the purported Primary Election held by the 1st Defendant is null and void for non-compliance with the provisions of the Electoral Act, 2010, A.P.C Constitution and A.P.C. Election Guideline.
(b) A DECLARATION nullifying the purported primaries held by the 1st Defendant on the 3rd and 4th
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October, 2018.
(c) A CONSEQUENTIAL DECLARATION that nullifying the return of the 2nd Defendant as the winner of the primaries held on the 3rd October, 2018.
(d) AN ORDER directing the 1st Defendant to immediately re-arrange and conduct a fresh primaries into the office of the Senator representing Kebbi South Federal Constituency of Kebbi State.
Or
(d) AN ORDER nullifying the declaration of the 2nd Defendant as the winner of the Kebbi South Senatorial District primary election of Kebbi State conducted on the 3rd and 4th of October, 2018.
(e) AN ORDER declaring the Plaintiff as the duly returned winner of the Kebbi South primary election held on the 3rd and 4th of October, 2018 having won the four Local Government.
(f) AN ORDER directing the 1st Defendant to immediately re-arrange and conduct a fresh primaries into the office of the Senator representing Kebbi South Federal Constituency.
(g) THE COSTS of this action as may be assessed by this Honourable Court.
(h) SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstance of this case.
?
The Respondents were served with the Writ of
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Summons along with the Statement of Claim and other processes. Meanwhile, on the 13/11/2019, the Appellant filed a motion for leave to amend the Writ of Summons and other accompanying processes. This application was refused by the learned trial judge in a considered Ruling delivered on the 8/4/2019.
On the 19/11/2018, the 2nd Respondent as 2nd defendant, filed a Notice of Preliminary Objection for the dismissal of the suit in that: –
(1) The action is statute barred.
(2) The action is incompetent.
(3) That as a result of the above, this Honourable Court lacks jurisdiction to entertain this action.
In a similar application filed by the 3rd Respondent on 29/11/2018 premised on the same grounds, the 3rd Respondent prayed the Court to dismiss the plaintiff?s suit.
The two preliminary objections were taken and the matter proceeded to trial. The Appellant fielded 5 witnesses and tendered a number of exhibits. The Respondents called two witnesses and also tendered in evidence some exhibits. At the close of the case of all the parties and the conclusion of trial, the Court delivered its judgment in favour of the Respondents.<br< p=””
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Unhappy with the said decision, the Appellant filed a Notice of Appeal on 30/4/2019 predicated upon the fallowing four (4) grounds of appeal, shun their particulars, to wit: –
GROUND 1:
The lower Court erred in law by raising the issue of failure to sign the writ of summon suo motu (when same was not raised by the 2nd and 3rd Respondents in their Notice of Preliminary Objection and same issue having been deemed waived by them) and ruled on it without inviting the parties to address it on the issue.
GROUND 2:
The lower Court erred in law when it held that the action was statute barred same having been commenced after the fourteen(14) days from the day of holding of the primaries of the 1st Defendant of Kebbi South Senatorial District and not from the day the Appellant wrote his last letter to the 1st Respondent.
GROUND 3:
The lower Court erred in law by its failure to consider/evaluate the evidence and submissions of the appellant?s while delivering it judgment on the Preliminary Objection and thereby occasion injustice to the Appellant.
GROUND 4:
The lower Court erred in law when it based its judgment on the
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rules of technical justice rather than the rules of substantial justice and this occasioned a miscarriage of justice to the Appellant.
By a motion on notice filed on 28/5/2019, the Appellant prayed for (1) an order of this Court granting extension of time and leave to appeal the Ruling of the 8/4/2019; and (2) leave to amend the notice of appeal by adding additional grounds of appeal from the ruling delivered on 8th April, 2019, as a new ground.
Prayer 1 was withdrawn and struck out leaving only prayer 2. The application was opposed by the 2nd Respondent vide a counter-affidavit filed on 18/6/2019. Ruling on the application will form part of this judgment. Briefs were filed and exchanged.
In the appellant?s brief of argument filed on the 28/5/2019, four issues were nominated for determination, namely:
1. Whether considering the circumstances of this case the Appellant is entitled to amend his processes as opposed to the conclusion of the trial Court not based on substance that the original writ is incompetent and cannot be amended and whether the judgment is based on technicalities? (Distilled from Ground 1 and 5 of the Notice of
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Appeal)
2. Whether in the circumstances of this Suit, the trial Court was right to have raised the issue of failure to sign the writ of summons suo motu and to hold that the writ is void without inviting the parties to address it on it and whether the failure of the Respondent to raise it in their Notice of Preliminary Objection does not amount to a waiver.
(Distilled from Ground 2 of the Notice of Appeal)
3. Whether having regards to the provision of Article 21(A) (X) of the 1st Respondent’s Constitution and the provision of section 258(9) of the Constitution of the Federal Republic of Nigeria 1999 (fourth Alteration, No. 21) Act 2017, Official Gazette No. 74 dated 12th June, 2018 Vol.105, Government Notice No. 56, The Appellant Suit can be said to be Statute Barred as held by the Lower Court. (Distilled from Ground 3 of the Grounds of Appeal)
4. Whether the trial Court was right when it refused to evaluate or land consider the evidences and submission of the Appellant while delivering it judgment? (Distilled from Ground 4 of the Grounds of Appeal)
?
On the part of the 1st Respondent whose brief was settled by Hussaini Zakariyau, Esq.,
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two issues were distilled for determination in the event that his preliminary objection challenging the competence of the appeal raised and argued in his brief of argument filed on the 17/06/2019, fails.
The issues are:
?(1) WHETHER an unsigned Originating process can legally ignite the Jurisdiction of the trial Court. (Distilled from grounds 1 and 2 of the Amended Notice of Appeal).
(2) WHETHER an incompetent Originating Process can confer a right of action that can be considered by the tenor of Section 285(9) of the 4th alteration to the 1999 Constitution of Nigeria; suit no. FHC/KB/CS/25/2018 is not statute barred. (Distilled from grounds 3,4 and 5 of the Amended Notice of Appeal).”
In the 2nd Respondent?s brief of argument settled by A. K. Jingi, Esq. and filed on 15/6/2019, 3 issues were identified for determination, to wit: –
?1. Whether the lower Court raised the issue of failure to sign the Writ of Summons suo motu and therefore deprived the Plaintiff/Appellant the opportunity of being heard. (Grounds 1 and 2)
2. Whether the action of the Plaintiff/Appellant filed on the 1st day of November, 2018 is
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not statute barred having regard to the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Attention, No. 21) Act, 2017. (Grounds 3 and 5)
3. Whether the consideration/evaluation of evidence adduced in this case by the Honourable trial Judge in the circumstances of this case would not have been an academic exercise. (Ground 4).”
On his part, the 3rd Respondent in his brief of argument filed on 17/06/2019 and settled by Salihu Abdur-Rahman, Esq. submitted 3 issues for determination, namely: –
?1. Whether the lower Court raised the issue of failure to sign the Writ of Summons suo motu and so doing the Appellant was deprived of the opportunity of being heard (Grounds 1 and 2).
2. Whether the action filed by the Appellant on the 1st day of November, 2018 was not statute barred taking into consideration the provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Amendment, No: 21) Act, 2017. (Grounds 3 and 5)
3. Whether in the circumstance of this case, considering and evaluating of the evidence adduced in the suit before the lower Court would not have
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been an academic exercise.?
The Appellant filed a reply on point of law to the 2nd Respondent?s counter-affidavit and written address on the 13/06/2019. To the 1st Respondent?s Notice of Preliminary Objection, the Appellant filed a reply brief on 18/6/2019. He also filed a reply brief to each of the 1st, 2nd and 3rd Respondents briefs on the 18/6/2019, 17/6/2019 and 18/6/2019 respectively.
We shall determine this appeal in this order, viz: –
(1) 1st Respondent?s preliminary objection to the hearing of the appeal;
(2) Ruling on the appellant?s motion for amendment of the original Notice of Appeal; and
(3) The main appeal.
It is necessary to first consider and resolve the preliminary objection before delving into the other aspects and the merit of the appeal.
The grounds upon which the 1st Respondent?s preliminary objection is predicated are: –
?(1) The trial Court did not assumed (sic) Jurisdiction in suit no. FHC/KB/CS/25/2018.
(2) The Jurisdiction of the trial Court was not ignited in suit no. FHC/KB/CS/25/2018.
(3) Appellate power of this Court is on Appeal where a
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trial Court exercise its original Juridical Power.
(4) Trial Court did not exercise its original jurisdiction in this case.
(5) This Appeal offends the provisions of Section 13 and 14 of the Court of Appeal Act, 2004.?
A sole issue was distilled for the determination of the preliminary objection:
?WHETHER the appellant?s writ of summons filed on 1st day of November, 2018 having not ignite the Original Jurisdiction of the trial Court; this Court can properly assume Jurisdiction in this appeal.?
The main contention of the counsel for the 1st Respondent in his preliminary objection is that the writ of summons which is the document that ignites the jurisdiction of the Court being incompetent same having not been signed by the Appellant or his legal representative, the jurisdiction of the lower Court was not ignited. The lower Court having on that account declined to exercise its additional jurisdiction vide section 87(9) of the Electoral Act, 2010 (as amended) on the pre-election matter, the jurisdiction of this Court under sections 13 and 14 of the Court of Appeal Act cannot be ignited and the Appellant cannot
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come here to complain. This for him justifies the refusal of the Court to assume jurisdiction as buttressed by the decision of this Court in the case of ALHAJI UMAR ALIYU TECHNICAL v. F.B.N PLC. & ANR. (CA/S/87/2017) unreported delivered on 24/5/2018 per OHO, JCA and BUHARI v. ADEBAYO (2014) 10 NWLR (Pt. 1416) 567.
In his response to the preliminary objection, the Appellant?s counsel observed that the issue raised in the preliminary objection had not only been argued in the Appellant?s brief of argument, but had also been argued in the 1st Respondent?s brief of argument. For that reason, learned appellant?s counsel formulated a sole issue for determination of the preliminary objection which encompasses his 1st and 2nd issues for determination in the main appeal and replicated his argument in the appeal as his response to the preliminary objection. I hasten to say that cannot be right. But the answer does not stop there.?
It calls for another look at the grounds of the preliminary objection, the 1st Respondent?s issues for its determination in relation to the issues formulated for the determination of the
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main appeal; the ratio decidendi of the decision and the applicable principles of law.
A comparison of the issue formulated by the 1st Respondent for the determination of the preliminary objection with his first issue for determination in the main appeal shows a difference between six and half a dozen. It is six of one and half a dozen of the other. The difference if any, is very negligible or as expressed in mathematics, is ?Zero?.
The 1st Respondent?s argument in support of both the preliminary objection and his 1st issue for determination demonstrates and supports this fact. It is almost a replicate of one of the other. The arguments are substantially the same. Perhaps, the only difference is in the way the issues are couched. The issue raised in both the preliminary objection and 1st Respondent?s issue No 1 relates to the competence of the writ of summons. Thus, the single thread that runs through both issues is the attack on the competence of the unsigned writ of summons and it?s effect on the jurisdiction of the trial and this Court.?
The lower Court?s pronouncement on this issue is at page 921 of the
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record of appeal where the learned trial judge held: –
?The Supreme Court has in a long line of cases held that a suit commenced by a Writ of Summons in which the Writ of Summons is not signed by a Legal Practitioner is incompetent. See NWEKE v. OKAFOR (2007) 10 NWLR (Pt. 1043) 521.
In the case of BRAITHWAITE v. SKYE BANK PLC. (2013) 5 NWLR (Pt. 1346) P.1 @ 15; the Supreme Court held that a Writ of Summons is an Originating Process by means of which action are commenced, the competence of such process is a prerequisite for a valid and subsisting claim. When the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction.
The Writ of Summons in this Suit not having been signed by a Legal Practitioner is void”.
The facts that eminently emerge from the foregoing is that the preliminary objection raised by the 1st Respondent derives from the ratio decidendi of the lower Court and same has also been made an issue for determination of the main appeal by the same self 1st Respondent. The position of the law on this scenario is clear. An issue or question challenging the jurisdiction
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of the Court to entertain an appeal cannot be included in the issues formulated for determination of the main appeal. It is improper to argue a preliminary objection and make the same issue and argument the subject of an issue for determination and argument of the main appeal. It will be incongruent to do so, because while preliminary objection attacks the hearing of the appeal, an issue for determination in an appeal seeks a consideration of the merits of the appeal. Therefore, while the issues nominated for determination of the appeal must flow from the decision appealed against, the issue or question raised in a preliminary objection challenging the jurisdiction of the Court does not. Such questions are not for determination in an appeal. Conversely, and as applicable to the present case, an issue or point decided and pronounced upon by the lower Court cannot be argued as a preliminary objection. It can only be argued as an issue for determination in the main appeal. See RIVERS STATE GOVT OF NIG. & ANOR v. SPECIALIST KONSULT (SWEDISTY GROUP) (2005) LPELR-2950 (SC) where the Apex Court held inter alia that objections to grounds or competence of
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appeal do not and could not relate to a matter decided in the judgment appealed against.
In this wise, the issue raised by the 1st Respondent?s preliminary objection which flows from the ratio decidendi of the decision of the lower Court is more suited for determination in the main appeal rather than a point of preliminary objection. Argument canvassed by both 1st Respondent and the Appellant in respect of both the preliminary objection and their respective issues being the same; this same issue which was also variously addressed by the other Respondents in their respective briefs of argument will be considered in the main appeal. Consequently, the preliminary objection is hereby dismissed.
Next to consider is the reserved Ruling in respect of the Appellant?s motion filed on 28/5/2019 for amendment of the Notice of Appeal which was opposed by the 2nd Respondent?s counter-affidavit consequent upon which the Appellant filed a reply on point of law wherein 2 issues were distilled for determination namely: –
?(1) Whether considering the contents of the Respondent?s Counter Affidavit, it has satisfied the mandatory
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Requirements of the Evidence Act?
(2) Whether seeking leave is necessary to add an interlocutory decision in a Notice of Appeal challenging the Final Judgment in a pre-election matter considering the provisions of Section 285(8) and (11) of the Fourth alteration.
His argument on issue No. 1, is that paragraphs 3(j), (k), and 4 of the counter-affidavit which contains legal arguments and conclusion and offend Section 115(2) of the Evidence Act, are not only liable to be struck out, but the entire counter-affidavit as the Court cannot pick or choose some paragraphs in an affidavit but must be rejected in its entirety. The case of BUHARI v. INEC (2008) 19 NWLR (Pt. 1120) 246 390 – 391 H – D, was cited in support.
On issue 2, whose argument runs from pages 5 to 12, is to the effect that by virtue of Section 285(8) and (11) of the 4th Alteration to the Constitution, and the decision of this Court in AKEREDOLU v. ABRAHAM & ORS (2019) LPELR-46670 (CA), an interlocutory decision in a pre-election matter ought to be and is deemed to be delivered along with the final judgment as a single judgment and thus requires no leave of Court to appeal. Thus,
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prayer 1, which according to him was sought out of abundance of caution being unnecessary, was withdrawn and struck out.
In support of prayer 2 which is the live prayer of the application, the Appellant?s argument is that the amendment sought is only to incorporate the interlocutory decision on the Amended Notice of Appeal, a prayer which this Court is empowered to grant vide Order 7 Rule 8 of the Rules of this Court, 2016, more so that the 2nd Respondent did not in his address, or counter-affidavit challenge the granting of the amendment.
In response to the issue raised suo motu by the Court whether a Notice of Appeal in a pre-election matter can be amended outside the 14 days allowed for filing the appeal, it was submitted for the Appellant that the Election Practice Direction, 2011 which expressly applies to proper election matters does not apply to pre-election matters by the maxim that ‘what is not mentioned is intended to be excluded’. Any attempt to impose the Election Practice Directions on pre-election matters will be an imposition of a requirement not provided by the law which this Court is incompetent to do. He drew our attention to
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the case of AULT-WIBORG (NIG) LTD v. NIBEL INDUSTRIES LTD (2010) 101 5 – 7 MJSC (Pt. 111) 155.
On the issue raised suo motu, the position of the Respondent?s counsel is that a pre-election matter like an election matter being sui-generis and time bound, an amendment cannot be made to a Notice of Appeal in a pre-election matter outside the 14 days allowed for the filing of the appeal. He cited the cases of MUSTAPHA v. GAMAWA & ORS (2011) LPELR-9226 (CA), NGIGE v. OBI (2006).
In furtherance of this, he contended that Section 285(9) and (11) of the 4th Alteration to the 1999 Constitution (as amended) is the Practice Direction for pre-election matters.
This issue was raised suo motu by this Court. In order to comply with the principles of fair hearing and not to be in breach of same, we invited parties to address us on the issue so raised. This is a condition precedent to the resolution of the said issue, for a Court of law has no power or jurisdiction to raise an issue suo motu and resolve it suo motu without affording the parties the opportunity to react to the issue so raised. See LEVENTIS (NIG) PLC v. AKPU (2007) 17 NWLR (Pt. 1063)
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1416, AIYETORO COMMUNITY TRADING CO. LTD. v. NACB LTD (2003) 12 NWLR (Pt. 834) 346 at 376.
It is not in doubt that the 4th Alteration has introduced very far reaching amendments to section 285 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The intendment and purport of such amendment is to fast track the hearing and determination of pre-election matters and appeals arising therefrom. Of utmost importance and drastic are sub-sections (9) and (11) which now operate as the Statute of Limitation with respect to the filing of pre-election matters and appeals arising therefrom.
To give a purposeful meaning to the sub-section (11) and attain expeditious disposal of appeals, sub-section (12) provides: –
?An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.?
Herein lies the urgency for the determination of the appeals from the time of filing of a pre-election matter to the time of the delivery of the judgment.?
I must, however, hasten to say that the 4th Alteration has made no specific, clear, and direct provision
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prohibiting an amendment to a Notice of Appeal in a pre-election matter. Admittedly, at the moment, no Practice Direction has been made for pre-election matters and appeals.
Arguably, the provisions of the Election Practice Direction, 2011 may be applied to pre-election matters and appeals for the purpose of attaining the mandatory 60 days for the delivery of judgment in pre-election appeals. The Practice Direction, however, contains no provision with respect to amendment of originating processes. Paragraph 14(2) of the 1st Schedule to the Electoral Act, 2010 (as amended) which prohibits a substantial amendment to an election petition after the expiry of the time prescribed for the filing of an election petition, specifically applies to post election matters.
To this extent, we find some considerable strength in the submission of the Appellant?s counsel, that such a requirement cannot be imported into a pre-election matter, we agree with him.
We have perused the case of MUSTAPHA v GAMAWA (Supra) to which our attention was drawn by the 2nd Respondent?s counsel in support of his contention. That case wherein this Court considered the
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provisions of paragraph 14(2) of the 1st Schedule to the Electoral Act with respect to amendment of an election petition, and interpreted the provision as prohibiting a substantial amendment to an election petition after the expiry of the time for the filing of an election petition in Section 134 of the Electoral Act, it must be pointed out, pertains to an election petition and not a pre-election matter. With respect to the issue raised, that case renders no assistance to this Court. On the other hand, the 2nd case of NGIGE v. OBI (supra) cited was not decided on the extant Electoral Act but on the 2006 Act. It also adds no value to his argument.
In view of the foregoing, it is my candid view that the question of amendment of a pre-election Notice of Appeal outside 14 days, is discretionary depending on the facts and circumstances of each case bearing in mind the necessity to determine the appeal within 60 days and the need not to shut out an Appellant who has a genuine case to amend his originating process.
?
Now, it is settled law that once there is a competent Notice of Appeal, the existing ground(s) of appeal may be amended by alteration, addition
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or a subtraction from the original grounds of appeal filed. See AWOTE & ORS v. OWODUNNI & ANR (1986) 5 NWLR (Pt. 46) 941, COKER v. UBA PLC. (1997) LPELR-880 (SC).
It is also settled that, generally, this amendment can be made at any time with the leave of Court.Order 7 Rule 8 of the Rules of this Court provides: ?Notice of appeal may be amended by or with the leave of Court at any time?. So long as the conditions for the grant of leave are met and the amendment if granted will enable the applicant ventilate his grievance and serve the ends of justice, the Court often grants the application for amendment. See OKPALA v. IHEME (1999)20 NSCC (Pt. 2) 567, FBN v. MAY MEDICAL CLINICS (2001) 9 NWLR (Pt. 717) 31. The grant of such an application is discretionary and the applicant has to show his entitlement to the grant of the prayer. In this regard, the Appellant made the following depositions in the supporting affidavit:
?3(b) That the Appellant did not appeal the ruling due to the current admonition from the apex Court on parties to incorporate/merge their interlocutory appeal with the final judgment to avoid duplication of
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appeal.
(d) That the Appellant have prepared an Amended Notice of Appeal and incorporated new ground of appeal to argue interlocutory decision of the trial Court.”
Most importantly, at paragraph (e), it was deposed ?that delay in filing the appeal is not deliberate but due to the delay in transmitting the record from the trial Court.?
The relevant paragraphs of the counter-affidavit read thus:
?3(g) That at the time the final judgment was delivered; the plaintiff was still within time to appeal the ruling if he had wanted.
(h) That when the Appellant appealed against the judgment of the Court on the 29th of April, 2019 the Record of Proceedings was not ready.?
Further, it was deposed, at paragraph 3(j) that:
?3(j) That the ground of appeal did not raise any serious point of law that would be determined in the Court of Appeal.
(k) That the Appellant did not show any special circumstance that would be considered in granting the application.
4. That I know as of fact that this application has no merit and its refusal would not cause any injustice to the Applicant.?
?
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With respect to paragraphs 3(j), (k), and 4, I am in total agreement with the submission of the appellant?s counsel that they are legal conclusion and argument and to that extent offensive to section 115(2) of the Evidence Act. These paragraphs of the counter-affidavit being so offensive and poisonous have also contaminated the other paragraphs which have also become as poisonous as the offensive paragraphs rendering the entire counter-affidavit liable to be struck out as the Court cannot and should not make any attempt to pick and choose the contaminant from the contaminated.
See BUHARI v. INEC (2008) (Supra) at para D. per Tobi where the lawlord had this to say:-
?It is my view that the depositions which complied with Section 86 of the Evidence Act cannot save the entire depositions, as they are drowned by those which violated Section 87 of the Act. This is because a Court of law is not competent to pick depositions in affidavit which violate Section 87 of the Act. The Court of Appeal was therefore right in rejecting the depositions.?
Furthermore, as submitted by the Appellant?s counsel, assuming the counter-affidavit had
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survived, there is really no deposition opposing the amendment. We are satisfied with the facts deposed at paragraphs (b), (d) and (e) that the Appellant/Applicant merits the grant of the application. Same is granted as prayed. Accordingly, the Applicant is granted leave to amend his Notice of Appeal in terms of Exhibit A3 annexed to the Application, to wit, by the addition of ground one, incorporating the Ruling of the lower Court delivered on 08/04/2019.
I now proceed to consider the main appeal.
THE MAIN APPEAL
SUBMISSIONS OF COUNSEL;
APPELLANT:
ISSUE ONE:
Whether considering the circumstances of this case the Appellant is entitled to amend his processes as opposed to the conclusion of the trial Court not based on substance that the original writ is incompetent and cannot be amended and whether the judgment is based on technicalities? (Grounds 1 and 5)
In arguing this issue, learned Appellant?s Counsel hinged the first leg of the issue, on the provision of Order 17 Rule 1, 2 and 3 of the Federal High Court (Civil Procedure) Rules, 2009, which empowers any party to make an application to a judge seeking leave to amend
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his originating processes and to file list of additional witnesses and their written statement on oaths. It was therefore the contention of Counsel that the Court below erred in law when it refused the Appellant?s application for the following reasons:
a. The Appellant act timeously in applying to amend the said processes.
b. The Respondents have waived their rights to complained having taken steps in filing their preliminary objection without challenging the issue of signature on the writ.
c. The issue of signing writ is a procedural irregularity that can becure by the provision of Order 51 of the Trial Court Rules, 2009.
In arguing these sub-issues seriatim, Counsel contended that the Appellant acted timeously as prescribed by Order 17 Sub 1, 2, and of the Federal High Court (Civil Procedure) Rules, 2009. Counsel cited the case of YUSUF vs. OBASANJO (2003) 16 NWLR (PT. 847) 554 AT 607 PARAS. F-G. According to learned Counsel, the said Order gives the Appellant the opportunity to amend his originating processes three times before judgment and the reason for such provision is to allow parties ventilate their grievances without being
26
short-changed on technical grounds. See also the cases of ALSTHOM S. A. SARAKI (2000)14 NWLR (PT. 687) 415 AT 427; ADEKEYE vs. OLUGBADE (1987) 3 NWLR (PT. 600) 214 AT 223.
On the question of whether the Respondents waived their rights to complain having taken steps in filing their preliminary objection without challenging the issue of signature on the writ, Counsel submitted that the 2nd Respondent cannot raise the issue of signing of writ at this stage of amendment, because it is a procedural irregularity which the 2nd Respondent ought to have raised it at the earliest time. Counsel cited the cases of PATE vs. MUHAMMAD (2016) LPELR-41175 (CA); NBTC LTD vs. NARUMI & SONS LTD (1986)4 NWLR (PT. 117) and NOIBI vs. FIKOLATI (1987) 1 NWLR (PT. 619) were cited and relied upon to reinforce the submissions of Counsel. He urged this Court to hold that the 2nd Respondent and the other Respondents have waived their rights to complain against the procedural irregularities.
?
On the issue of whether the omission to sign writ is a procedural irregularity that can be cured by the provision of Order 51 of the High Court Rules, 2009 Counsel contended that the
27
issue of signing a writ is a procedural requirement and non-compliance with it, is a mere irregularity that can be cured under the provision of Order 51 of the Federal High Court (Civil Procedure) Rules, 2009. According to Counsel, the rules that stipulated the conditions for filing originating processes have provided remedies for non-compliance and that the Court under paragraph (2) of the Rules is empowered to allow amendment as in the instant case and he urged this Court to so hold.
In respect of the second leg of the issue, Counsel submitted that it is now trite that Courts are cautioned not to only decide matters based on procedural irregularity or on technical ground, in the instance case, the trial Court based its decisions not only on technical ground but rather on procedural irregularities. He said that in the instant case the trial Court’s second reason for striking out the instance suit was on the ground that the writ of summons having been the mode used in commencing the action was not signed either by the Plaintiff/Appellant or by his legal practitioner. He referred to page 925 of the records of the trial Court. It was further argued by
28
Counsel that the Appellant not signing his writ tantamount to a procedural irregularity which will not vitiate the proceedings unless there is a failure of justice and that in the instant case, the Appellant took steps immediately he realized the said irregularity and therefore ought to be given the benefit of doubt. He cited the case of FAMFA OIL LIMITED vs. ATTORNEY-GENERAL OF THE FEDERATION & ANOR. (2003) LPELR-1239 (SC) and urged this Court to resolve issue one in favour of the Appellant.
ISSUE TWO:
Whether in the circumstances of this Suit, the trial Court was right to have raised the issue of failure to sign the writ of summons suo motu and to hold that the writ is void without inviting the parties to address them on it and whether the failure of the Respondent to raise it in their Notice of Preliminary Objection does not amount to a waiver?
The submission of Counsel on this issue is that while a Court of law has the power to raise an issue suo motu, it cannot on the other hand raise and resolve it suo motu without affording parties the opportunity to address Court on the issue. He argued that no Court of law is vested with the vires to
29
raise an issue suo motu and relying on it to decide the case before it one way or the other. Counsel cited the case of ABDULLAHI vs. EXECUTIVE GOVERNOR OF KANO STATE (2014) LPELR-23079 (CA) on the issue. See also the cases of PAM & ORS v. ABU & ORS (2013) LPELR-21406 (CA).
Counsel contended that where the Court raises an issue suo motu and resolves same without affording the parties the opportunity to address Court on the issue, that that will amount to a denial of fair hearing as enshrined in the Constitution of the Republic of Nigeria, 1999 and that a decision founded on the ground of such will certainly be set aside on the ground of nullity of same. Counsel cited the case of OGWE vs. I.G.P. (2015) 7 NWLR (PT.145) 505 SC at P. 530 Para. D-F. Learned Counsel also contended that in the instant case, the learned trial judge in his judgment, which can be found at pages 916- 926 of the Record of Appeal raised the issue of failure to sign the Writ of Summon suo motu particularly at pages 921 Record of Appeal and without inviting the parties to address the Court on it, and finally held that not having been signed by a Legal Practitioner is void and as
30
such the statement of claim has nothing to rest on.
Counsel, in line with the authorities cited by him, urged this Court to set aside the decision of the lower Court and nullify the judgment of the trial Court in line with the decision of the Supreme Court in OGWE vs. I.G.P. (Supra) for failure to invite the parties particularly the Appellant who was to be adversely affected by the issue raised suo motu to address it in flagrant breach of the Appellant’s right to fair hearing as enshrined in Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999. In arguing this issue, Counsel contended that in the instant case the Respondent never raised the issue of failure to sign the Writ of Summons upon being served with the Writ of Summon and that even when the 2nd and 3rd Respondents filed their Memorandum of Conditional appearance and their subsequent Notice of Preliminary Objection, they had never raised the issue of failure to sign the Writ of Summons despite the ample opportunities they had and neither did they argue it while arguing their Notice of Preliminary Objection.
?
On that note, Counsel urged this Court to hold that on the face of
31
the steps taken by the Respondent i.e. the filing of their Memorandum of Appearance, their subsequent filing of their Notice of Preliminary Objection and taking of Argument of Counsel to all the parties, the failure to raise the issue of failure to sign the Writ of Summon timeously by the Respondents particularly the 2nd and 3rd Respondent constitute a waiver on the parts of the Respondents. Counsel urged this Court to resolve this issue in favour of the Appellant.
ISSUE THREE:
Whether having regards to the provision of Article 21 (A) (X) of the 1st Respondent’s Constitution and provision of Section 258(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No. 21) Act 2017, Official Gazette No. 74 dated 12th June, 2018 Vol. 105, Government Notice No. 56, The Appellant Suit can be said to be Statute Barred as held by the Lower Court? (Ground 3)
?
The argument of Counsel in respect of this issue is that the law that governs the situation is the 1st Respondent’s Constitution, which prohibits a party member from going to Court for any wrong done to him by the party without first exhausting all the avenues for redress. That
32
is to say, Counsel said that a person has to first of all exhaust all internal mechanisms provided by the Constitution for settling disputes within the party. Against this background, Counsel referred Court to Article 21 (A) (X) of the Constitution of the All Progressive Congress (APC), 2014 (As Amended).
Learned Counsel further drew attention to the provision of the said Constitution which governs the position where an aggrieved party member initiates an action without first exhausting all the internal mechanisms put in place; the consequence of which is that the member stands automatically expelled from the party upon filing of such an action and that no appeal shall lie for such an act. Counsel referred Court to Article 21(D)(V) of the Constitution of the All Progressive Congress (APC), 2014 (As Amended) on the issue. Premised on the wordings of the above cited Article of the 1st Respondent’s Constitution, Counsel contended that a member of the party cannot go straight to Court of law for redress without first exploring all the avenues internally as provided by the 1st Respondent’s Constitution, as he ceases to be a member of the political party by so doing.
33
In addressing the Court on the provisions of S. 258(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No. 21) Act 2017, Official Gazette No. 74 dated 12th June, 2018 Vol. 105, Government Notice No. 56, Counsel argued that the use of the words; ?event,? ?decision? or ?action complained of? in the Constitutional provision, clearly shows that Constitution does mean from the day of holding of the primaries. He further argued that by the said wordings, the time contemplated by the law begins to run after the occurrence of the cause of action, which he contended did not start after the immediate conclusion of the primary election.
This is because, Counsel argued that the same Constitution of the 1st Respondent that gives power to conduct the primary election equally also imposes that primary election is not conclusive until and unless all the avenues as provided under the Constitution have first of all been exhausted by an aggrieved party. It is for this reason Counsel also contended that the Appellant?s cause of action only arose, after the Appeals Committee set up by the party
34
to listen to grievances of various aggrieved members reached its decision. Against this position, Counsel argued that the cause of action in this instant case has a continuous cause of action and that the 14 days began to run after the decision of the Appeals Committee of the All Progressive Congress.
It was also contended by Counsel that when the Appellant was dissatisfied with the result of the purported primaries he wrote a petition and series of letters to the 1st Respondent challenging the validity of the purported primaries. According to Counsel, the last of such letters pertained to the grievance of the Appellant against the primaries and that this was dated the 29th October, 2018. In his calculations, therefore, Counsel argued that the 14 days prescribed by the 4th Alteration act, began to run from the date of the Appellant?s last correspondence (29th October, 2018) which is also the period within which to institute an action founded on pre-election matters and which lapsed on the 12th November, 2018.
?
Counsel brought it to the attention of this Court that the case of the Appellant in this appeal was instituted on 1st November, 2018
35
clearly just 3 days from the date of the last correspondence and thus leaving behind 11 days for the Appellant to institute his action thus, the Appellant in filing his case of the 1st day of November, 2018 is clearly within time. Counsel urged this Court to so hold as such and resolve issue two in favour of the Appellant.
ISSUE FOUR:
Whether the trial Court was right when it refused to evaluate or/and consider the evidences and submission of the Appellant while delivering it judgment? (Ground 4).
In arguing this issue, the contention of Counsel is that the failure to consider the appellant?s evidences and his submissions therein occasioned a miscarriage of justice to the Appellant as the ruling prematurely ousted his grievances and therefore denied him fair hearing. Counsel contended that the Supreme Court has had occasions to lay down what is required of a judge when writing a judgment and that recourse to the case of ISHOLA & ORS vs. FOLORUNSHO & ANOR (2010) 13 NWLR (PT. 1210) 169 AT 195 is imperative in this instance.
?
Counsel further contended that the judgment of the trial Court, while considering the Notice of
36
Preliminary Objection filed by the 2nd and 3rd Respondents did not comply with the vital ingredients of a valid judgment as stated in the case of ISHOLA & ORS vs. FOLORUNSHO & ANOR (Supra). (See pages 916-926 of the record). It was contended by Counsel that a careful perusal of the trial Court?s judgment, which considered the Notice of Preliminary Objection would only reveal that the trial Court only considered the 2nd and 3rd Respondents’ evidence but failed to consider the appellant?s evidence and legal submissions to the said Notice of Preliminary objection. (See page 65 of the Record). Against this position, Counsel argued that a Court of law has no power to select the evidence placed before the Court as the Court ought to have acted according to the evidences placed before it. He cited the case of ONYIA vs. MBIKO & ANOR (2014) LPELR-23028 on the issue. Counsel urged this Court to resolve this issue in favour of the Appellant.
FIRST RESPONDENT:
ISSUE ONE:
WHETHER an unsigned Originating process can legally ignite the Jurisdiction of the trial Court? (Grounds 1 and 2).
?
In arguing this issue, learned 1st
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Respondent?s Counsel premised his arguments on the decision of this Court in the case of ALHAJI UMAR ALIYU TECHNICAL vs. FIRST BANK OF NIG PLC & ANOR (CA/S/87/2017) unreported delivered on 24th May, 2018 where this Court, per OHO, JCA held at page 10 thus:
?It will in the circumstances of this position be necessary to deal with the other issues raised under the Notice of Preliminary Objection, the determination of the question of failure of signing the writ of summons having completely knocked off the substratum of the Appellant?s case right from its inception at the Court below.?
The argument of Counsel on the issue is that in determining this issue as submitted before the trial Judge; it is only the Appellants originating processes, which is contained in the record of Appeal at pages 2-5 thereof that will be considered in doing this. According to Counsel, a careful perusal of the Appellant?s writ of summons will show that the writ of summons was neither signed by the Appellant nor his legal representatives. The submission of Counsel is that this renders the appellant?s originating summons, incompetent
38
before the trial Court.
This incompetence, Counsel further submitted is such that it affects the life of the a appellant?s writ, which was filed without a blood breath into it by the Appellant. Counsel urged this Court to so hold and cited the case of OMEGA BANK NIG PLC vs. OBC LTD (2005) ALL FWLR (PT. 249) 1964 AT 193 where the apex Court held thus:
?A document which is not signed does not have any efficacy in law. As held in cases examined, the document is worthless and a worthless document cannot be efficacious?.
Counsel also contended that the Appellant?s writ having been seen to be lifeless without a signature on same; made the Appellant?s suit filed on 1st November, 2018 dead on its arrival and cannot be resuscitated. This, Counsel further contended robs the trial Court of the exercise of its original jurisdiction in the Appellant?s case and he urged this Court to so hold.
On the issue of whether the Court below raised the issue of non-signing of writ of summons suo motu and without inviting Counsel to address it on the issue before he gave judgment on same, Counsel submitted that this is not
39
correct as it does not reflect the true state of affairs before the Court below. Counsel said that from the record before the trial Judge; it is evident that the 1st Respondent in its final written address challenge the jurisdiction of the trial Court based on the appellant?s unsigned writ of summons. (See page 798 of the record of appeal).
As far as Counsel is concerned, the question of whether the Court below raised the issue of not signing writ suo motu; is completely far from it as the 1st Respondent raised the issue, which was upheld by the trial judge. Again, on the Court?s refusal to accede to the Appellant?s request to amend his unsigned Writ of summons, which he said amounted to technical justice, the other parties having waived their rights to object, Counsel submitted that the position of the law is that the Jurisdiction of a Court can be raised at any stage of the proceeding before Judgment; hence the 1st Respondent raising the issue of an unsigned writ in his written address.
It is further contended trite that the Appellant?s unsigned writ having been accepted by the Appellant that it was unsigned; rendered
40
the said writ incompetent and that the law remains that an incompetent originating summons is deemed not to be in existence and hence cannot be amended. Counsel cited the case of S.P.D.C.N. LTD vs. EKOSI (2016) 2 NWLR (PT. 1496) at 282 where the Court held:
?A notice of appeal that is incompetent and void cannot be amended. Therefore, where a notice of appeal is null and void, there can be no valid appeal pending to warrant the purported amendment of the notice of appeal. An act that is void is a nullity in law and it is incurably bad and as such one cannot put something on nothing and expect it to stand. Logically, the something placed upon nothing will collapse. SHELIM Vs GOBANG (2009) 12 NWLR (PT. 392) 655?.
Counsel, finally on this, urged this Court to resolve this issue in favour of the 1st Respondent and dismiss this Appeal.
ISSUE TWO:
WHETHER an incompetent Originating Process can confer a right of action that can be considered by the tenor of Section 285(9) of the 4th Alteration to the 1999 Constitution of Nigeria; Suit No. FHC/KB/CS/25/2018 is not statute barred (Grounds 2 and 3).
?
As far as learned Counsel is concerned,
41
the law relating to this issue, is as provided by the Supreme Court in IYEKE vs. P.T.I. (2019) 2 NWLR (PT. 1656) 217 at 222, where the Court defined what amounts to a cause of action and also a reasonable cause of action. The argument of Counsel is that at the Court below, the event that took place from which the Appellant derived the power to complain was his alleged participation in a primary election on 3rd and 4th October, 2018 and its attendant non-compliance with the provisions of the Electoral Act 2010 (as amended)(See the appellants? claim on page 4 of the Writ of summons).
It was also argued that Paragraphs 9 and 10 of the Appellants? statement of claim clearly shows that the Appellant?s cause of action arose on the 4th October, 2018 which date is not within the 14 days window provided by Section 285 (9) of the 1999 Constitution. As far as Counsel is concerned, the appellants? claim filed on 1st November, 2018 in a cause of action that arose on 4th October, 2018; having been caught up by the provision of the enabling law is statute barred and he urged this Court to so hold. See INAKOJU vs. ADELEKE (2007) 4 NWLR.<br< p=””
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Counsel finally urged this Court to resolve this issue in favour of the 1st Respondent.
SECOND RESPONDENT:
ISSUE ONE:
Whether the Lower Court raised the issue of failure to sign the Writ of Summons Suo moto and therefore deprived the Plaintiff/Appellant the opportunity of being heard?
The Submission of 2nd Respondent on this issue, is that the Court below did not raise the issue of failure to sign the Writ of Summons suo moto as alleged by the Appellant and therefore did not deprive the Plaintiff/Appellant the opportunity of being heard on the issue. The further submission of Counsel is that the issue of non-signing of the Writ of Summons was raised by the Counsel to the 2nd Defendant/Respondent on the 5th day of April, 2019 in open Court in the presence of the Counsel to the Plaintiff/Appellant and that this had prompted the Plaintiff into filing a motion on notice to amend the Writ of Summons he filed on the 1st day of November, 2018.
?
Counsel told Court that on the 5th day of April, 2019 when the Plaintiff/Appellant through his Counsel moved the motion on notice for amendment, the Counsel to the 2nd Defendant/Respondent opposed the
43
application on the ground that the Writ of Summons is defective (among other grounds) and therefore cannot be amended. Counsel contended that Counsel to the 2nd Defendant first raised the issue of the Writ of Summons during the hearing of the Motion in Notice on the 5th day of April, 2019 at page 855 line 3 to line 23 of the Records of Proceedings.
According to learned Counsel, the Plaintiff?s Counsel replied at page 855 lines 25 to page 856 lines 8 of the Records of Proceedings. He added that the Counsel to the 3rd Defendant?s own submission on the issue is at page 856 line 9 to line 12 of the Records of Proceedings, while the lower Court?s ruling is at page 250 line 11 to page 252 line 4. Counsel referred this Court to page 250 line 11 to line 28 of the Records of Proceedings, where the Court below had this to say on the subject:
?The Writ of Summons of the Plaintiff in this suit is not signed by the Legal Practitioner. The Supreme Court has in a long line of cases held that a suit commenced by a Writ of Summons in which the Writ of Summons is not signed by a Legal Practitioner is incompetent. See NWEKE vs. OKAFOR (2007) 10
44
NWLR (PT. 1043) 521. In the case of BRAITHWAITE vs. SKYE BANK PLC (PT. 1346) 1 AT 15; The Supreme Court held that a Writ of Summons is an originating process by means of which actions are commenced, the competence of such process is a pre-requisite for a valid and subsisting claim. When the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction. The Writ of Summons in this suit not having been signed by a Legal Practitioner is Void.?
Counsel argued that at the Court below, the Counsel to the Plaintiff/Appellant did not in fact profess that the Writ of Summons was signed, but had rather contended that since the statement of claim was signed, the statement of claim supersedes the Writ of Summons and urged the Court to hold that the non-signing of the Writ of Summons is a mere irregularity.
?
Counsel disclosed that on the 8th day of April, 2019 the Court below ruled that the Writ of Summons, which was not signed, cannot initiate legal proceedings, and further held that there was no valid Writ of Summons before the Court and that the Court consequently dismissed the application for
45
amendment. Counsel also submitted that the ruling of the lower Court dismissing the motion of notice for amendment on the ground that the writ of Summons is defective and as such cannot be amended is still subsisting. Counsel further argued that the Plaintiff/Appellant has not appealed against the ruling of the Court below on the issue.
Counsel further argued that the Court below was right to have just referred to the holding of the Court on the 8th day of April, 2019 on the motion on notice as it would have amounted to an abuse of Court process to call parties to again address the Court on the issue of the unsigned Writ of Summons, which had already been addressed before the Court on the 5th day of April, 2019. See pages 855 -856 of the record of proceedings. Counsel submitted that the Court below did not raise the issue of non-signing of writ suo motu; as the parties addressed the Court on the issue on the 5th of April, 2019 and therefore, that the right to fair hearing of the Plaintiff/Appellant was not in any way been violated. Counsel urged this Court to resolve this issue in favour of the Respondents and to dismiss this appeal.
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46
ISSUE TWO:
Whether the action of the Plaintiff/Appellant filed on the 1st day of November, 2019 is not statute barred having regard to the provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (fourth Alteration, No.21) Act, 2017.
In arguing this issue, Counsel submitted that the action of the Plaintiff/Appellant filed on the 1st day of November, 2018 is statute barred having regard to the provision of section 285 (9) of the constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No.21) Act, 2017. It was further submitted that the case of the Plaintiff/Appellant filed on the 1st day of November, 2018 against the primary election conducted by the 1st Defendant/Respondent on the 3rd and 4th of October, 2018 is outside the 14 days allowed by the provisions of the 1999 Constitution particularly S.285 (9) of the 1999 Constitution of the Federal Republic of Nigeria (Fourth Alteration, No.21) Act, 2017.
According to learned Counsel, the apex Court faced with the issue of expiration of time for doing a thing in the case of SHETTIMA & 1 OR v. GONI & 4 ORS (2011) 18 NWLR (PT. 1279) 414 AT 444 PARAS. C-D held
47
thus:-
?Where the words of the Statute are clear and Unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with the provisions of the constitution or statute, effect must be given to those provisions without recourse to any other consideration they ought to be so treated?.
The submission of Counsel is that the recent alteration of the Constitution (S.285 (9) is in the same spirit with S. 285(7) of the Constitution (as amended), which was copiously considered by the Supreme Court in the case of SHETTIMA & 1 OR vs. GONI & 4 ORS (Supra) at page 445 Paras B-C where ONNOGHEN, JSC (as he then was) stated thus;
?I hold the considered view that the above provisions are mandatory and not permissive as they admit of no discretion and the sooner both the bar and bench realize this, and comply to the spirit and letter of the provision the better for this nation?s democracy?.
?
Against the backdrop of the foregoing, Counsel submitted that at this stage the only processes that would be considered is the writ of summons and the Statement of Claim which were filed by
48
the Plaintiff/Appellant on the 1st day of November, 2018. Counsel contended that in the Statement of Claim and even in the reliefs in the Writ of Summons, it is clear that the primary election in the Kebbi State Southern Senatorial District was held on the 3rd and 4th of October, 2018; that the 2nd Defendant/Respondent was declared winner in the early hours of 4th of October, 2018.
?
Counsel argued that time started to run from the 4th day of October, 2018 when the primary election was declared and that 14 days from the 4th of October, 2018 would be 18th of October, 2018, while the Appellant filed his case on the 1st day of November, 2018 clearly out of time. Counsel further contended that this preliminary point of law can be taken after the receipt of the Statement of Claim and before any defense is filed. He cited the case of ALHAJI I. ONIBUDO & 3 ORS vs. AKIBU (1982) 7 SC.60 AT 200.
?
Counsel also contended that the Appellant misunderstood the provisions of S. 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No.21) Act, 2017 when he submitted that the 14 days provided in the Alteration did not start from the
49
date of the primaries, but from the last letter of the Plaintiff to the 1st Defendant in view of the provision of Article 21 (A) (X) of the All Progressive Congress (APC) Constitution.
Counsel submitted that a defense founded on statute of limitation is a defense that the Plaintiff has no cause of action and a defense of law, which can be raised in limine and without any evidence in support. He said in addition, that it is sufficient if, prima facie, the date of taking the cause of action, outside the prescribed period is described in the Writ of Summons and the Statement of Claim. In the instant case, Counsel said that the 1st of November, 2018 whereas the prescribed period is 14 days from the 4th day of October 2018 when the primary election held. See the cases of P.N. UDOH TRADING CO. LTD vs. ABERE (2001) FWLR (PT57) 900 AT 922 and EGBE vs. ADEFARASIN (1987) 1 NWLR (NO. 2) (PT.97) 1.
?
It was also contended by Counsel the submission of the Appellant that the 14 days provided in the 4th Alteration will begin to run from the last letter he wrote the 2nd Defendant (APC) because Article 21(A) (X) of the APC Constitution provides that any aggrieved party
50
member must first approach the party and follow the mechanism of resolving issues internally, is misconceived. Counsel argued that the Constitution of the All Progressive Congress (APC) is inferior to the Constitution of the Federal Republic of Nigeria, 1999 Section 1 (3) (as amended). Counsel cited the case of OKEKE vs. SECURITIES AND EXCHANGE COMMISSION (2013) ALL FWLR (PT 687) 731 CA on the issue.
As far as Counsel was concerned, the proper thing for the Appellant to have done was to file the case within the 14 days after the 4th of October, 2018 and then continue to pursue the resolution of the issue from the Party (APC). He said that the Constitution does not recognize Article 21 of the All Progressive Congress. Counsel buttressed his arguments with the case of ADAMAWA STATE vs. AG OF THE FEDERATION (2014) 14 NWLR (PT. 1428) 515 AT 554 C-H-555 A-D per PETER ODILLI, JSC who said:
?It is clear from the above stated Statutory Provision of the limitation law that the cause of action had come full bloom by the 27th July, 1983 when the defendant acknowledged the indebtedness. Therefore, the subsequent correspondences which climaxed on 6th
51
August, 2010 including that of 7th August, 2007 would not add to or subtract from event which had already taken place, that is, the crystallization of the cause of action which took place on 27th July, 1983. This happening would bring about the attendant fall out which is the operation of Section 7(1)(e) of the Limitation Act. Therefore what had been restated in Egbe VS Adefarasin (No.2) (1987) 1 NWLR (pt. 47) 1 at page 20-21 paras H-A would apply and these are; ?Where a party?s action is statute barred, the following legal consequences will follow: (a) the party would lose his right of action (b) the party would lose the right of enforcement, (c) the party would have an empty cause of action which no Court will assist him to enforce?.
Against the backdrop of the forgoing, Counsel submitted that even if the APC had started considering the complaint of the Appellant, the time shall not have stopped to run, from the date the 2nd Defendant was declared, that is 4th October, 2018 as a Complaint of the Plaintiff to the APC does not prevent or stop time from running. See GBADAMOSI LAHAN vs. THE ATTORNEY GENERAL, WESTERN NIGERIA
52
(1961) WLR 39; (1963) 2 SWLR 47; and INEC vs. OGBADIBO LOCAL GOVERNMENT & ORS (2016) 3 NWLR (PT 1498) 67 AT 193, PARAS 194, per GALADIMA, JSC who said,
?It was Aniagolu, JSC (of blessed memory) who in Lasisi Vs AG Oyo State (1982) 4 SC at 56 who, when referring to the Limitation Provision in the Public Lands Acquisition Law, put the issue more succinctly thus: ?The two Law Lords could not by their procurement quoted in the minority judgment be understood in all fairness to them to be advocating that the Courts should ride roughshod of statutory periods of limitation by reason only of otherwise arguable falls having been placed on joinder of issues. What is there to try when the statute has provided that the period allowed for bringing an action in which those facts have been in issue has expired? Absolutely nothing. It is clear from the above judicial views on the basis of limitation law once a defence of limitation time is stated and grounded in the averments in support of the Summons (as in this case at hand) and it is established, this bars the Plaintiffs remedy and extinguishes the right of this action, then the Court will wash off its
53
hands and decline to entertain the action.?
See also AMADI v NNPC (2000) 6 SC (PT. 1) 66 and INAKOJU vs. ADELEKE (2007) 4 NWLR (PT.1025) 423. The final contention of Counsel on this issue is that the statute of limitation does not admit of any liberalism. It has to be peremptorily where the situation permits. See the cases of CO-OP BANK LTD vs. LAWAL (2007) 1 NWLR (P 1015) 289 AT 303 PARAS F-G and FADARE vs. A.G OYO STATE (1982) 4 SC 1.
ISSUE THREE:
Whether the consideration/evaluation of evidence adduced in this case by the Hon. trial Judge in the circumstances of this case would not have been an academic exercise.
?
In arguing this issue, Counsel submitted that the consideration/ evaluation of evidence adduced in this case by the Court below, in the circumstances of this case would have been an academic exercise. As far as Counsel is concerned, the trial Court had already held that it had no jurisdiction to entertain the matter on two grounds; when the Court found as fact that the Writ of Summons, which ought to have initiated the matter was not signed by either the Plaintiff or the solicitor (legal practitioner) and in addition, that
54
the matter was statute barred. Counsel further argued that either of those two facts robbed the Court of the jurisdiction to hear the matter on the merit. Counsel urged this Court to resolve all the issues in favour of the 2nd Respondent and dismiss the appeal.
THIRD RESPONDENT:
ISSUE ONE:
Whether the lower Court raised the issue of failure to sign the Writ of Summons suo motu and by so doing the Appellant was deprived of the opportunity of being heard (Grounds 1 and 2).
The contention of Counsel is that the issue of the failure on the part of the Appellant to sign the Writ of Summons was not raised by the Court suo muto as argued by the Appellant in this Appeal rather, he said that the issue of the unsigned Writ of Summons was raised by the 2nd Respondent?s Counsel in Court according to Counsel, the 2nd Respondent?s Counsel had opposed the motion to amend the Writ of Summons sought to be moved by the Counsel to the Appellant on the ground that same motion to amend was defective and therefore the writ cannot be amended.
?
Learned Counsel also contended that this issue was raised by the 2nd Respondent Counsel on the 5th day
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of April, 2019 (see lines 3 – 23 at page 855 of the Record of Proceedings). According to Counsel, unsigned Writ of Summons is a fundamental defect that goes to the root of a suit.
On effect of an incompetent originating process, Counsel cited the case of BUHARI vs. ADEBAYO (2014) 10 NWLR @ p. 560, where this Court per MUKHTAR, JCA held thus;
?An incompetent originating process is inchoate, legally non-existent and cannot be saved by way of an amendment. (M.W.T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481 referred to Page 587 paras C-D?.
Learned Counsel further contended that the case was a complete non-starter rendering the entire proceedings null and void as rightly determined by the learned lower Judge. He said that basically, an unsigned or irregularly signed writ is worthless and incapable of hitting the ground running in legal proceedings. According to Counsel, being an initiating process, the statement of claim and all other processes that swivel on the helpless writ are correspondingly affected by the same virus and consequently rendered incompetent. Counsel finally submitted on the issue that the
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Appellant was not deprived of the opportunity of being heard and he urged this Court to so hold.
ISSUE TWO:
Whether the action filed by the appellant on the 1st day of November, 2018 was not statute barred taking into consideration the provision of Section 285 (9) of the constitution of the Federal Republic of Nigeria, 1999 (Fourth Amendment, No: 21) Act, 2017. (Grounds 3 and 5).
?
In respect of this issue, Counsel argued that by the provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No: 21) Act, 2017, the action of the Appellant filed before the lower Court on the 1st day of November, 2018 is statute barred. The further argument of Counsel is that the event complained against in the suit filed by the Appellant at the lower Court was the conduct of the Primary Election which took place on the 3rd and 4th days of October, 2018. Counsel contended that computing the time from the conduct of the said election and the filing of the appellant?s Writ of Summons falls outside the 14 days allowed by the 4th Alteration to the Constitution. Counsel stated that the wordings of the said provision
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are very clear and unambiguous and that they must be given their ordinary meanings. See the case of SHETTIMA AND 1 ORS vs. GONI and 4 ORS (2011) 18 NWLR (PT. 1279) 414 @ 444 PARA. C-D.
The contention of Counsel is that the event which gave rise to the suit before the lower Court occurred on the 3rd and 4th of October, 2018 and the Appellant?s Writ of Summons was filed on the 1st day of November, 2018, which is a total of 28 days; 14 extra days outside the 14 days allowed by the provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 199 (Fourth Alteration, No: 21) Act, 2017. Counsel cited the cases of P. N. UDOH TRADING CO. LTD vs. ABERE (2001) FWLR (PT 57) 900 @ 922; EGBE vs. ADEFARASIN (1987) 1, NWLR (NO: 2) (PT. 97) 1 in support of his arguments.
ISSUE THREE:
Whether in the circumstance of this case, considering and evaluating of the evidence adduced in the suit before the lower Court would not have been an academic exercise.
In arguing this issue, learned Counsel endorsed the authority of the case of OKADIGBO vs. EMEKA (2012) ALL FWLR (PT 623) 1869 @ 1877 Paragraphs B-C, where the Court held as follows:
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?Where an objection raises fundamental issues touching on the vires of the Court to entertain a matter, it is incumbent on the Court to have it disposed of first, as to proceed to entertain the matter in the circumstances where the court has no vires to do so comes to naught being a mere academic exercise?.
Counsel also referred Court to the case of DREXEL ENERGY AND NATURAL RESOURCES LTD vs. TRANS INTERNATIONAL BANK LTD (2009) ALL FWLR (PT. 456) 1823 in this regard and contended that the importance of jurisdiction in any Court proceedings cannot be over-emphasized as Jurisdiction is the basis for adjudication by Court and any adjudication and that where a Court that lacks jurisdiction its entire effort is an exercise in futility. Counsel cited a number of cases some of which are SKENCONSULT (NIG.) LTD vs. UKEY (1981) 1 SC 6; OKEREKE vs.YAR? DAU (2008) 12 NWLR (PT. 1100) 95; MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341; UTIH vs. ONOYIVWE (1991) 1 NWLR (PT. 166) 166; ADEGOKE vs. ADIBI (1992) 5 NWLR (PT. 242) 410; PETROJESSICA ENT. LTD vs. LEVENTIS TECH. CO. LTD. (1992) 5 NWLR (PT. 244) 675. Learned Counsel therefore urged this
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Court to resolve all the issues in favour of the 3rd Respondent and dismiss the appeal.
A study of the issues raised by the Respondents shows that they mirror, from the other side of the coin, the issues distilled by the appellant?s counsel: I shall determine this appeal on the basis of the issues submitted by the learned appellant?s counsel and in the process, factor in, each of the Respondent?s issues and argument thereon. Issues 1 and 2 will be considered together.
ISSUES 1 AND 2
The issues having earlier been reproduced in this judgment, I find no need to bring them forth here. It suffices to say, beginning with the second issue, that the core of the appellant?s contention is that the issue of the unsigned writ of summons was raised suo motu by the lower Court and without inviting parties to address it on the issue so raised.
The position of the law on this issue has long been settled and is very clear. While a Court of law, both trial and Appellate, is empowered suo motu to raise an issue which it considers necessary for the proper determination of the case or appeal, or even one that is apparent on the record,
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it must, before deciding on the issue so raised, involve the parties by inviting them for their input, particularly the party that may be negatively or adversely affected by the issue so raised, so as not to infringe on the parties right to fair hearing. See KUTI V. BALOGUN (1989) 1 NWLR [PT.99] 566, 581, ABDULLAHI v. EXECUTIVE GOV. OF KANO STATE (2014) LPELR-23079 (CA). This requirement is the same even where the issue so raised is that of jurisdiction, the parties must be given an opportunity of being heard, DONGTOE v. C.S.C. OF PLATEAU STATE & 2 ORS (2001) 4 SCNJ 131 at 148 lines 5 – 14.
It is most inappropriate for the Court to suo motu raise an issue the resolution of which will determine the case or the appeal as the case may be, and in the resort of his chambers resolve the issue behind the parties. Doing so will be prejudicial to the effected party; it will amount to a denial of his constitutional right to fair hearing and occasion a miscarriage of justice. See LEVENTIS (NIG) PLC V. AKPU (2007)17 NWLR [PT.1063]416. In AIYETORO COMMUNITY TRADING CO. LTD V. NACB LTD (2003)12 NWLR [PT.834)346, @376, the Court held thus:
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“A trial or appellate Court can as of right raise issues that may aid the determination of the issue in controversy but it cannot decide such issue without the parties? counsel reacting to such issue raised suo motu by the Court…?
In the more recent case of WAGBATSOMA v. FRN (2018) LPELR- 43722(SC), the Supreme Court again reiterated the law when it stated thus: –
?It has been held severally by this Court that no Court, no matter how well-meaning, may raise an issue suo motu and resolve it without affording the parties an opportunity to be heard. The Court must confine itself to the specific issues raised by the parties and has no business considering an issue not properly before it. Raising and resolving an issue suo motu has the effect of making out a case for the parties which they did not make for themselves. A judge who raises an issue suo motu without affording the parties an opportunity to be heard before resolving it, has in effect descended into the arena of conflict. See:A.D.H. Ltd Vs Amalgamated Trustees Ltd.?
In the instant case, the record of proceedings of the lower Court from pages 852 to 856 of the record of
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appeal, on what transpired on the 5/4/2019, belies the appellant?s claim. It is clear from the record that when the appellant?s counsel, Hajji, moved his motion for amendment of the writ of summons, the 2nd Respondent?s counsel, Jingi, at pages 854 and 855 stated thus:
?We submit that the writ of summons dated the 1st November, 2018 is bad and it is incurably bad. We submit that the writ of summons in this suit was not signed by any legal practitioner and was not signed by the plaintiff. The statement of claim is also not signed by a legal practitioner or the plaintiff or anybody at all.?
On the same page 855, Hajji the appellant?s counsel responded this way:
?On the issue that the Writ of Summon was not signed, assuming that the Writ of Summon was not signed the Statement of Claim was duly signed. We submit that the Statement of Claim supercedes the Writ of Summons.?
Thereafter, after hearing from the other counsel, the Court adjourned the application for ruling. (See page 856 of the record).
Therefore, it cannot be correct or true that the Court raised the issue suo motu and denied
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parties a hearing before resolving the issue, the issue having been raised by the 2nd Respondent.
The Appellant?s further contention that the issue was not part of the 2nd Respondent?s counter-affidavit but was orally raised, is of no moment, the Appellant having fully responded to the issue. Moreover, being an issue touching on the competence of the writ and the jurisdiction of the Court, same could be raised orally, as did the 2nd Respondent?s counsel. See PETROJESSICA ENTERPRISES LTD v. LEVENTIS TECHNICAL CO. LTD (1992) 6 SC (Pt. 11) 1, KATTO V. CBN (1991) 11 – 12 176.
On this score, issue No. 2 is resolved against the Appellant.
On the Appellant?s 1st issue which is the flesh of this arm of his complaint, his contention is that the failure to sign the writ of summons is the inadvertence of counsel whose sin should not be visited on the Appellant. Moreover, the failure to sign a writ of summons is a procedural irregularity which can be cured by Order 51 of the Rules of the Court moreso that the Respondents have waived their right to complain, but rather than allow the amendment, the lower Court thrived on technicalities
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to dismiss the appellant?s suit.
There is no contention in this appeal that the writ of summons filed by the Appellant on 1/11/2019 which initiated the action at the lower Court was not signed either by the legal practitioner or by the then plaintiff himself. This is an admitted fact which in any case cannot be denied. The said writ of summons at pages 2 – 5 of the record bears no signature or endorsement of either the legal practitioner or the plaintiff. Simply, the writ of summons was not signed.
The Appellant?s only claim is that the unsigned writ of summons which was due to a mistake on his part is capable of being amended. Now, a writ of summons is an originating process and the foundation of a plaintiff?s claim. It is the process that kick starts the action and in turn vests jurisdiction on the Court. An unsigned writ of summon is a worthless process; it is non-existent and legally incurable. It is a dead process which cannot be resuscitated no matter what effort is made to bring it to life. It is an incompetent and void process and remains so. In the eyes of the law, it is not in existence, and what is not in
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existence cannot be amended, as amendment cannot bring to being what is non-existent or bring to life what is dead. Such an unsigned writ of summons is and remains an incompetent process.
As an originating process, where the writ of summon as in this case is fundamentally defective, it is incapable of kick-starting the action or initiating any legal proceedings or to ignite the jurisdictional competence of the Court. It cannot invoke the jurisdiction of the Court. See BUHARI v. ADEBAYO (2014) 10 NWLR (Pt. ) 560.
The effect of initiating an action with an unsigned writ of summons was considered by the Apex Court in OMEGA BANK NIG. PLC v. OBC LTD (2005) ALL FWLR (PT. 249) 1964 AT 193 held:
?A document which is not signed does not have any efficacy in law. As held in cases examined, the document is worthless and a worthless document cannot be efficacious.?
Thus, failure to initiate the action with a valid writ of summons is a fundamental infraction, bothering on the jurisdiction of the Court to adjudicate over the matter.?
Learned appellant?s counsel argued, profusely, that the failure to sign the writ of summons is a mere
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irregularity which can be amended and cured. He cited a number of authorities including the cases of PATE v. MUHAMMAD (Supra) (2016) LPELR-41175 (CA), SAUDE v. ABDULLAHI (Supra) LPELR 3017 (SC) to contend that the defective writ of summons is capable of being amended.
These cases however do not support or enhance his position. All the cited cases deal with procedural irregularities. Not a single case decided that a fundamental defect in the originating process, such as an unsigned writ of summons, can be amended or that such a fundamental defect is a mere irregularity. While the cases cited and relied upon remain good law for the principles enunciated and established, they have no relevance to the facts of this matter.
?Similarly, the argument that the Respondents have waived their right to complain does not avail the Appellant, the issue of the defective writ of summons being a jurisdictional issue which in law cannot be waived. The fundamental and threshold nature of jurisdiction makes it a no respecter of the principle of waiver. Jurisdiction being intrinsic to judicial proceedings, the skeleton that holds the body of an action and the live wire of
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every adjudication, the doctrine of abandonment of right otherwise known as waiver, does not apply. Therefore, it is wrong to argue that because the Respondents entered appearance, filed preliminary objection and argued same, they are deemed to have waived their right and precluded from raising the issue on appeal. An issue of jurisdiction cannot be waived and the Respondents cannot be precluded from raising the issue on appeal.
That being the law, the dire consequence of initiating an action on a void writ of summons is that the action which it purports to commence is not commenced; and the jurisdiction of the Court to entertain the action is not ignited. The action remains incompetent and the trial Court deprived of jurisdiction to entertain same, having not being initiated by due process of law -MADUKOLU v. NKEMDILIM (supra).
It follows that all other processes including the statement of claim predicated on the incompetent writ of summons can also not stand, the foundation having crumbled. The bottom having been knocked out of the foundation of the case, the Court could not have had the vires to entertain the case its power to do so having been
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taken away.
We therefore find no fault with the lower Court when it held:
?The Supreme Court has in a long line of cases held that a suit commenced by a Writ of Summons in which the Writ of Summons is not signed by a Legal Practitioner is incompetent. See NWEKE v. OKAFOR (2007) 10 NWLR (Pt. 1043) 521.
In the case of BRAITHWAITE v. SKYE BANK PLC. (2013) 5 NWLR (Pt. 1346) P.1 @ 15; the Supreme Court held that a Writ of Summons is an Originating Process by means of which action are commenced, the competence of such process is a prerequisite for a valid and subsisting claim. When the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction.
The Writ of Summons in this Suit not having been signed by a Legal Practitioner is void.?
The above decision of the lower Court is unassailable and we cannot but agree with the Respondent?s counsel that the jurisdiction of the lower Court having not been ignited, the jurisdiction of this Court cannot be ignited. This is merely a statement of the settled position of law. Once an Appellate Court determines that there was no
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jurisdiction in the lower Court, the Appellate Court would have no jurisdiction of its own to exercise. See OKPALA UZUEGBU v. EZEMENERI (2011) 14 NWLR (Pt. 1268) 492, at 527.
Having so held, that would have been the end of the matter but, not being the final Court, though the issue of absence of jurisdiction is one of such clearest of cases when the necessity to consider the other issues does not arise, nonetheless, we shall consider the other issues in the event of a further sojourn of this appeal to the Apex Court, to afford it the opportunity of our views. Thus we will proceed to consider the next issue, which bothers on the assertion that the action, assuming it is valid, is statute barred. The appellant?s contention is that by virtue of Article 21(A)(x) of the 1st Respondent?s Constitution, 2014 which mandates an aggrieved member to first exhaust the internal party dispute resolution mechanism before coming to Court, a breach of which is sanctioned by expulsion from the party, the appellant?s cause of action arose from the date his last letter was written to the 1st Respondent on 29/10/2018 and not on the 4/10/2018 when the primary
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election was conducted thus, this suit filed on 1/11/2018 according to him, was filed within 14 days of the accrual of cause of action as required by Section 285(9) of the Constitution.
Section 285(9) 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 the occurrence of the event, decision or action complained of in the suit.?
This provision requires a pre-election matter to be filed within 14 days of the occurrence of the event, decision or action complained of in the suit. A cause of action will accrue to a complainant upon the occurrence of any of the 3 variables; namely –
(i) an event;
(ii) a decision; or
(iii) action, which the party complains against.?
A cause of action consists of every fact which would be necessary for a claimant to prove, if traversed, in order to support his right to judgment. It is the bundle or aggregate of facts which the law recognizes as giving the claimant a substantive right to make a claim and seek a remedy. These include every material fact necessary to be proved to entitle
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the claimant to succeed. See DUZU v. YUNUSA (2010) 10 NWLR (Pt. 1201) 80.
A cause of action accrues when all the factual situation giving right of complaint has occurred so that the aggrieved party can begin and maintain an action in Court. Where a plaintiff asserts that he won the primary election of his party but the name of the loser was submitted to INEC, his cause of action accrues, for the purpose of section 285(9), from the date of the submission of the name of the loser and not from the date of the primary election which he won. It will be highly preposterous to hold otherwise. A person who won the primary election has no cause of action against his political party until the occurrence of an event, decision or action that adversely affects his victory. This is the effect of the decision of this Court in GUSAU & ANR v. INEC & 3 ORS (unreported) Appeal No. CA/S/46/2019 delivered on 17/5/2019, APC v. KAMBA & 2 ORS (unreported) Appeal No. CA/S/73/2019 delivered on 21/6/2019 and APC v. ENGINEER SULEIMAN ALIYU LERE (unreported) Appeal No. CA/K/40/2019 delivered on 21/2/2019 which was affirmed by the Supreme Court in Appeal No.
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SC/222/2019. The recent landmark decision of the same Apex Court in MUHAMMAD SANI MUSA v. SENATOR DAVID UMAR & 2 ORS, SC/405/2019 (unreported) delivered on 14/6/2019, MAIGARI v. MALLE, (also unreported) Appeal No. SC/454/2019 delivered on the 13/6/2019 have all clarified the position of the law and set precedent for all Courts to follow.
The simple take away from these decisions is that the cause of action accrues on the date that the factual situation which gives the plaintiff the cause of complaint against the event, act, or decision of the defendant which entitles him to seek a redress in Court, happens.?
The determinant of the accrual of cause of action depends on the date of the occurrence of the act complained against. Whereas the cause of action accrues to a plaintiff who won the primary election on the date he becomes aware that the name of the loser was submitted by his political party to INEC instead of his name, in contravention of the Electoral Act and his party?s Guidelines, the cause of action to a loser of the primary election accrues earlier and on the date that the factual situation exists to give him a right of action in Court.
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In determining when a cause of action accrued, the Court must have recourse to the originating processes filed by the claimant, the statement of claim which will disclose the date the cause of action accrued, and the writ of summons or any originating process which will show the date the action was initiated. Where from these processes it is shown that the action was instituted outside the limitation period, then the action is said to be statute barred.EGBE v. ADEFARASIN (1987) 1 NWLR (Pt. 47) 1.?
The writ of summons in this case was filed on the 1/11/2018. The appellant?s statement of claim is contained at pages 6 – 12 of the record. Reading through the statement of claim, it is clear that the Appellant who lost the primary election had a myriad of complaints against the conduct of the primary election, ranging from complaints of irregularities and malpractices, dis-enfranchisement of his supporters, substitution of the proper delegates with others, absence of result sheets before and during the election and several others. He disagreed with the conduct of the primary election and the result of the election which produced the 2nd
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Respondent as the winner. As a result of his disagreement, he caused his counsel to write a petition to the National body complaining of the conduct of the election. This letter was written on 4/10/2018. The letter was not acted upon or replied. He was not invited by the party to hear his complaint. Another letter was written.
From these averments in the statement of claim, it is my humble view that the events which occurred on 4/10/2018 culminating in the Appellant who lost the primary election, causing a letter of complaint to be written to the Appeal Committee and to the National body which were not acted upon, gave the Appellant the cause of action. His cause of action accrued on the 4/10/2018, his grievance being on the conduct of the primary election which took place on 4/10/2018.
The Appellant?s reason for not approaching the Court earlier is zeroed on Article 21(A)(X) of the 1st Respondent?s Constitution and Article 21(D)(V) which provides that a member who files an action in Court without first exhausting the avenues for redress provided by the party?s Constitution stands expelled and without a right of appeal except the
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action is withdrawn from Court.
The question whether the time for the purpose of Limitation Law begins to run after the period when parties are engaged in negotiation has been settled and nailed to the ground by the Supreme Court. The internal dispute resolution mechanism or negotiations does not stop the time from running from the moment of the accrual of cause of action. Once the time begins to run, it continues to tick until it runs out its course. Negotiations or internal settlement mechanism cannot punctuate, stop or delay the time. The time never goes to sleep. Thus, the proper position of the law is that the period during which parties are engaged in negotiations when in respect of a cause of action the period of limitation begins to run, it is not broken and does not cease to run merely because the parties are engaged in negotiations. The time continues to run without a break.
The best cause of action for a person, to whom a right has accrued, like the Appellant in this case is to institute an action to protect his interest in the event of the failure of the settlement moves. See EBOIGBE v. NNPC (1994) 5 NWLR (Pt. 347) 649.
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It follows that at best, the time to utilize the internal resolution mechanism or negotiation runs concurrently with the limitation law and runs out at the expiry of the time prescribed by the limitation law. Where the time provided by the political party?s Guidelines and Constitution is longer than the time prescribed and limited by the limitation law, it is elementary that the Cause of action will lapse at the expiry of the period prescribed by the limitation law, in this case, Section 285(9) of the Constitution (as amended). The supremacy of the Constitution of the Federal Republic of Nigeria over the political party?s Guidelines and Constitution is non-contestable and non-negotiable. Whatever period is provided by the 1st Respondent?s Constitution for the internal resolution of complaints before a recourse to litigation, cannot keep at abeyance the running of the time prescribed by Section 285(9). The time limited by Section 285(9) cannot be elongated, enlarged, or derogated from by any other law inferior to the Constitution and the 1st Respondent?s Guidelines and Constitution have to give way to Section 285(9) of the Constitution of the Federal Republic of Nigeria. ?
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See the case of SPEAKER KOGI STATE HOUSE OF ASSEMBLY V. ADEGBE (2010) 10 NWLR (PT 1201) 45 AT 50. Therefore, reliance on the 1st Respondent?s Constitution as a reason for not instituting his action within 14 days of the accrual of cause of action, does not avail him.
The scenario in this case is not different from what happened in case of AKEREDOLU v. ABRAHAM (yet unreported) Appeal No. SC/138/2019 delivered on 5/3/2019, who also lost the primary election. In that case, the Supreme Court per Musa Dattijo Muhammad, JSC, held:
?This is a pre-election matter to which the 4th Alteration applies. The cause of action occurred on the 3/9/16 when the primary election that brought about the plaintiff’s grief took place. The suit was filed on the 7/10/18, 28 days after the event instead of the 14 days within which the suit was to be filed. The matter, is caught up by the 4th alteration and consequently the suit, the appeal at the lower Court as well as the appeal before us being incompetent are hereby all struck out for being so.?
?The Appellant whose cause of action accrued on 4/10/2018 but instituted the
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action on the 1/11/2018 outside the 14 days prescribed by Section 285(9) has lost his right, if any, to seek redress in Court. This issue is also resolved against the Appellant.
The last issue has to do with the complaint of lack of evaluation of the appellant?s case by the lower Court before dismissing the case. This complaint is not supported by the record before us. Moreover, the learned trial judge having on the law and on the fact held that the unsigned writ of summons was incompetent on the basis of which he declined jurisdiction, there was no need to consider the oral evidence led in support of the case. This issue is also resolved against the Appellant. All the issues having been resolved against the Appellant, this appeal is devoid of any merit. It fails and is accordingly dismissed. The decision of the lower Court delivered on 17/04/2019 striking out the appellant?s suit is affirmed
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of read, in draft, the judgment just delivered by my learned brother, AMINA AUDI WAMBAI, JCA. I agree with his reasoning and conclusion and I have
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nothing to add thereto. I also abide by the consequential orders contained therein, including orders as to costs.
FREDERICK OZIAKPONO. OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother AMINA AUDI WAMBAI, JCA just delivered and I am in agreement with his reasoning and conclusions in dismissing the Appeal as lacking in merit. Appellant had made a storm out of a teacup, claiming that the Court below raised the issue of failure to sign his Writ of Summons suo motu and unilaterally resolved same without giving the parties the opportunity of being heard on the issue and therefore deprived violated the Appellant?s Right of fair hearing on the issue.
A careful examination of the clear records of Appeal shows that at no time did the Court below raise the issue of failure to sign the Writ of Summons suo motu as alleged by the Appellant. What actually transpired at the Court below is that the issue of non-signing of the Writ of Summons was raised by the Counsel to the 2nd Defendant/Respondent on the 5th day of April, 2019 in open Court, and ditto learned Counsel for the other Respondents at various
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times. In short following the spate of objections raised, this prompted the Appellant into filing a motion on notice to have the Writ of Summons amended. This motion was filed on the 1st day of November, 2018.
It is also on record that on the 5th day of April, 2019 when the Appellant through his Counsel moved the said motion on notice, learned Counsel to the Respondents opposed the grant of the application on the ground that a defective Writ of Summons, among other grounds cannot in any way be amended. See page 855 line 3 to line 23 of the Records of Appeal on this issue. To therefore also demonstrate that fact that the issue was not raised suo motu, but one that was exhaustively dealt with, the Appellant as Plaintiff at the Court below made a reply at page 855 line 25 to page 856 line 8 of the printed Records. It will be instructive to note that other Respondents especially the 3rd made its own submissions at page 856 line 9 to line 12 of the Records, while the lower Court?s ruling is at page 250 line 11 to page 252 line 4 of the printed Records. At page 250 lines 11 to line 28 of the Records, the learned judge of the Court below had this to say on
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the subject, which this Court finds no reasons to disagree with:
?The Writ of Summons of the Plaintiff in this suit is not signed by the Legal Practitioner. The Supreme Court has in a long line of cases held that a suit commenced by a Writ of Summons in which the Writ of Summons is not signed by a Legal Practitioner is incompetent. See NWEKE vs. OKAFOR(2007) 10 NWLR (PTI 1043) 521. In the case of BRAITHWAITE vs. SKYE BANK PLC ( PT. 1346) 1 AT 15; The Supreme Court held that a Writ of Summons is an originating process by means of which actions are commenced, the competence of such process is a pre-requisite for a valid and subsisting claim, When the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction. The Writ of Summons in this suit not having been signed by a Legal Practitioner is Void.?
What is rather strange in this head of Appellant?s appeal is the fact that at the Court below, the Appellant did not make an issue concerning his failure to have his writ of summon signed and had rather contended that since the statement of claim was signed the
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statement of claim superseded the Writ of Summons and urged the Court to hold that the non-signing of the Writ of Summons was a question of a mere irregularity and which this Court holds otherwise. See the cases of …
It is further instructive to note that the Ruling of the Court below dismissing the Appellant?s motion of notice for amendment on the ground that the writ of Summons is defective and as such cannot be amended is still subsisting and has not been appealed against. The consequence is that the Appellant at this stage is estopped at this stage from raising issues which relate or border on the lower Court?s findings concerning the defective writ of summons made by the lower Court in its ruling. See the case of ABUBAKAR vs. BEBEJI OIL AND ALLIED MATTERS (2007) LPELR-55 (SC) and a host of other decisions on the subject.
On the question of whether the action of the Appellant filed on the 1st day of November, 2019 is statute barred having regard to the provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (fourth Alteration, No. 21) Act, 2017, the bare facts of this case are there to bear the Court
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below out under the circumstances. The facts have it that Appellant?s case as Plaintiff was filed on the 1st day of November, 2018 against the primary election conducted by the Respondent on the 3rd and 4th of October, 2018. Clearly, this was far outside the 14 days allowed by the provisions of the 1999 Constitution particularly S.285 (9) of the 1999 Constitution of the Federal Republic of Nigeria (Fourth Alteration, No.21) Act, 2017. The excuse of the Appellant, was that he needed to explore all internal dispute resolution mechanisms prescribed by the 1st Respondent and that the interpretation of the 4th Alteration, No. 21 Act, 2017 to the Nigerian Constitution approves and envisages the use of the Party?s internal disputes resolution mechanisms.
In addressing the Court on the provision of S. 258(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No. 21) Act 2017, Official Gazette No. 74 dated 12th June, 2018 Vol. 105, Government Notice No. 56, Counsel argued that the use of the words; ?event?, ?decision? or ?action complained of? in the Constitutional provision, clearly
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shows that the Constitution envisages that time does not begin to run from the day of holding of the primaries but after the occurrence of the cause of action, which did not start after the immediate conclusion of the primary elections. Learned Appellant?s Counsel argued that the Constitution of the 1st Respondent, which gives power to conduct the primary elections equally states that the primary election is not conclusive until and unless all the avenues as provided under the Constitution have first of all been exhausted by an aggrieved party.
It is for this reason that Appellant?s Counsel argued that the Appellant?s cause of action only arose, after the Appeals Committee set up by the party to listen to grievances of various aggrieved members reached its decision. In the case of SHETTIMA & 1 OR vs. GONI & 4 ORS (2011) 18 NWLR (PT. 1279) 414 AT 444 PARAS C-D, the apex Court had this to say on the issue:
?Where the words of the Statute are clear and Unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with the provisions of the Constitution or statute, effect
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must be given to those provisions without recourse to any other consideration they ought to be so treated?.
It is of course clear that Appellant?s Counsel clearly misunderstood the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017 when he argued though strenuously that the 14 days provided in the Alteration did not start from the date of the primaries, but from the last date of his odyssey with the 1st Respondent, in view of the 1st Respondent?s Article 21(A) (X) in its Constitution. What learned Appellant?s Counsel failed to understand is that the Constitution of the 1st Respondent is an inferior piece of document to the Constitution of the Federal Republic of Nigeria, 1999 as Amended. Section 1 (3) (as amended) does not recognize Article 21 of the Constitution of the 1st Respondent and that time could not have stopped running on account of Article 21 (A) (X) of the 1 Respondent?s Constitution.
I too find no merits whatsoever in this Appeal and also rely on the fuller reasons proffered by my learned Brother in the main judgment in dismissing this
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Appeal as unmeritorious. I also abide by the consequential orders made thereto.
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Appearances:
A.U. Hajji, Esq.For Appellant(s)
Hussaini Zakariyau with him, A.K. Jingi and Salihu Abdur-Rahman (Esqs), for the 1st, 2nd, and 3rd respondents respectively
For Respondent(s)
Appearances
A.U. Hajji, Esq.For Appellant
AND
Hussaini Zakariyau with him, A.K. Jingi and Salihu Abdur-Rahman (Esqs), for the 1st, 2nd, and 3rd respondents respectivelyFor Respondent