KALU KALU AGU & ORS v. GENERAL MUHAMMADU BUHARI (RTD) & ORS
(2019)LCN/13652(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of July, 2019
CA/A/436/2019
RATIO
ORIGINATIONG SUMMONS: WHEN IT IS NOT SIGNED BY A JUDGE
I agree with learned counsel for the respondent that the absence of the signature of the trial judge or the registrar of the trial Court amounts to the appellants’ failure to commence this suit in line with due process. I agree with the submission of the respondent that this failure to comply with the condition precedent has the effect of rendering the entire originating summons and action incompetent, void and no effect. See Bayero v Mainasara (2006) 8 NWLR (Pt. 982) 391 at 425-426 and Idris v Archibong (2001) 9 NWLR (Pt.718) 447 at 458- 459. In Kida v Ogunmola (2006) All FWLR (Pt.327) 402 at 412- 413, (2006) 13 NWLR (Pt.997) 377 at 394, this Court held:-
“In my view, the validity of the originating process in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. PER MOHAMMED BABA IDRIS, J.C.A.
JURISDICTION: EFFECT OF A LACK OF JURISDICTION BY A COURT AND THE IMPORTANCE OF THE ISSUE OF JURISDICTION
It is settled law that where an action is not competent or properly constituted, it robs the Court of the jurisdiction to entertain same. In other words, such a complaint raises the issue of jurisdiction of the trial Court and ought to be dealt with first and foremost since a judgment delivered in an action outside the jurisdiction of the Court amounts in law to a nullity irrespective of how well the proceedings was conducted by the trial judge. See OFIA V. EJEM (2006) 11 NWLR (PT992) 652; ODESSA V. FRN (N0.2) (2005) 10 NWLR (PT 934) 528; FABS V. IBIYEYE (2008) 14 NWLR (PT1107) 375; RIRUWAI V. SHEKARAU (2008) 12 NWLR (PT.1100) 142. PER MOHAMMED BABA IDRIS, J.C.A.
STATUTE BAR: HOW TO DETERMINE WHETHER A MATTER IS STATUTE BARRED
In determining whether a suit is statute barred, one must pay serious attention to when the cause of action accrued. This instant appeal is borne out of a pre election matter which is regulated for by Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) 4th Alteration which provides that:
“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.” PER MOHAMMED BABA IDRIS, J.C.A.
CAUSE OF ACTION: DEFINITION
” In the case of OGBIMI VS. OLOLO (1993) 7 NWLR (PT. 304) PAGE 128 at 136, it was held:
“A cause of action, is, in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaints and the consequent damage.” PER MOHAMMED BABA IDRIS, J.C.A.
CAUSE OF ACTION: WHEN CIVIL RIGHTS OR OBLIGATION AND INFRACTION OF A TRESPASS ON THESE RIGHTS AND OBLIGATION EXISTS, IT AMOUNTS TO A CAUSE OF ACTION
In the case of AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR (PT. 127) PAGE 369 AT 382-383 it was held:
“When facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligation exists side by side, a cause of action is said to have accrued.” PER MOHAMMED BABA IDRIS, J.C.A.
CAUSE OF ACTION: DEFINITION
Finally, in the Court of Appeal case of OBIKA VS. OBIKA (2018) LPELR-43965, cause of action was defined thus:
“A cause of action generally refers to every fact which is necessary for the plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle or aggregate of facts which the law recognizes as giving the plaintiff a substantive and recognized right to make the claim against the relief or remedy being sought. Thus, the verifiable factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right, capable of being claimed or enforced against the defendant. In other words, the eventual factual situation relied upon by the plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the defendant that gives to the plaintiff his cause of complaints is a cause of action.” PER MOHAMMED BABA IDRIS, J.C.A.
COURTS: WHETHER A COURT CAN MAKE AN ORDER SOLELY ON THE SUBMISSION OF COUNSEL
In the case of FBN PLC VS. AKPARABONG COMMUNITY BANK LTD & ANOR (2005) LPELR 7496, it was held:
“It is surprising that a Court would ignore the application, prayers and affidavit evidence before it and make an order based on the meresubmission of counsel. The submissions of counsel cannot be a substitute for evidence.”
Also, in the Supreme Court case of CHUKWUJEKWU VS. OLALERE & ANOR (1992) 2 NWLR (PT. 221) PAGE 86, it was held that:
“It is now trite law that no matter how brilliant and persuasive counsel’s submission may be, it can never metamorphose to evidence.” PER MOHAMMED BABA IDRIS, J.C.A.
ACADEMIC SUITS: WHEN A SUIT IS ACADEMIC AND THE ATTITUDE OF COURTS TOWARDS ACADEMIC MATTERS
In the Supreme Court’s case of PLATEAU STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR (PT. 967) PAGE 346 AT 419, it was held per Niki Tobi, JSC that:
A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.” PER MOHAMMED BABA IDRIS, J.C.A.
JUSTICES:
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
1. KALU KALU AGU
2. LABARAN ISMAIIL
3. HASSY KYARI EL-KURIS – Appellant(s)
AND
1. GENERAL MUHAMMADU BUHARI (RTD)
2. ALL PROGRESSIVE CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Originating Summons filed on the 5th of November, 2018 before the Federal High Court, sitting in Abuja in Suit No FHC/ABJ/CS/1310/2018, the Appellants who were Plaintiffs at the trial Court, sought for the determination of the following questions:
(1) Whether having regard to the information in the Affidavit contained in the 1st Defendant’s INEC FORM CF 001, regarding his educational qualifications/ certificates, the 1st Defendant has submitted false information to the 3rd Defendant.
(2) Whether from the facts and exhibits contained in the affidavit in support of this Originating Summons, and having regard to Section 31 (5) and (6) of the Electoral Act, 2010 (as amended), the 1st Defendant is disqualified from running for the office of President of the Federal Republic of Nigeria in the 2019 general elections.
(3) Whether the 1st Defendant having submitted false information to the 3rd Defendant, the 2nd Defendant can validly present the 1st Defendant as its candidate for the office of President of the Federal Republic of Nigeria for the 2019 General
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Elections.
(4) Whether the 3rd Defendant can validly receive, accept or act upon the false information in the Affidavit and documents submitted by the 1st Defendant as candidate of the 2nd Defendant for the office of President of the Federal Republic of Nigeria for the 2019 General Elections.
(5) Whether the 3rd Defendant ought to have rejected the said false information and documents submitted by the 2nd Defendant for the 1st Defendant.
AND UPON THE DETERMINATION OF THESE QUESTIONS, THE PLAINTIFFS SOUGHT THE FOLLOWING RELIEFS:
(1) A Declaration of this Honourable Court that the 1st Defendant submitted false information regarding his educational qualifications/certificates to the 3rd Defendant for the purpose of contesting election into the office of President of the Federal Republic of Nigeria in the 2019 general election.
(2) A Declaration of this Honourable Court that the 1st Defendant from preventing himself and or contesting for the office of President of the Federal Republic of Nigeria in the 2019 general elections.
(3) An Order of this Honourable Court disqualifying the 1st Defendant from presenting himself and or contesting
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for the office of President of the Federal Republic of Nigeria in the 2019 general elections.
(4) An Order of this Honourable Court directing the 3rd Defendant to reject/remove the 1st Defendant’s name as the Presidential candidate of the 2nd Defendant submitted to the 3rd Defendant for the 2019 general elections.
(5) An Order of this Honourable Court restraining the 1st Defendant from parading himself as the Presidential Candidate of the 2nd Defendant for the 2019 general elections.
(6) An Order of this Honourable Court restraining the 2nd Defendant from parading the 1st Defendant as 2nd Defendant’s Presidential Candidate for the 2019 general elections.
(7) AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.
In the affidavit in support of the Originating Summons deposed to by the 1st Appellant, he stated that he was a party member and Youth Leader of the 2nd Respondent. He also stated that he is a political stakeholder of the 2nd Defendant and has huge interest in who emerges as Presidential Flag bearer and candidate of the 2nd Respondent. It was stated that the 1st Respondent had submitted
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to the 3rd Defendant information which is false. The false statements and certificates were said to have been made on oath. Several documents were attached as exhibits. He further deposed to the fact that the 1st Respondent was not fit to contest for the office of President of the Federal Republic of Nigeria as a result of these.
The Appellants also filed a motion on notice, seeking for an interlocutory injunction restraining the 3rd Respondent from accepting the name of the 1st Respondent as the candidate as the 2nd Respondent’s candidate for the 2019 general elections to which the 1st Respondent filed a counter affidavit to the motion, stating that the facts deposed therein the affidavit in support delves into the substantive facts as it is the same as that contained in the affidavit in support of the originating summons.
The 1st Respondent filed a notice of preliminary objection wherein it was stated that the 1st Respondent by virtue of his office as President of the Federal Republic of Nigeria is immune to be sued on civil and criminal proceedings in his personal capacity. Also, that the Appellants lacked the locus standi to institute this action
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and had disclosed no special interest they have in the suit and finally, the signature of the 1st Appellant on the document is not regular.
The Appellants in response filed a counter affidavit to the Notice of preliminary objection, stating that his signature was regular and the discrepancies therein was as a result of him hastily signing the document.
The 1st Respondent filed a further and better affidavit in support of the Preliminary objection, stating that the suit was statute barred as it was filed outside the time stipulated by Section 285 (9) of the 1999 CFRN 4th Alteration.
The 1st Respondent also filed a counter affidavit to the Originating summons, deposing to the facts that the qualification for the office of President as it relates to the academic qualification does not make the production of Primary six school certificate or West African School Certificate a mandatory requirement. It was also argued that the Appellants had no locus standi to institute the action as they were never candidates contesting for the Office of President, thus, all his depositions were based on speculations and opinions. The Appellants filed a Reply on
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points of law.
The 2nd Respondent filed a notice of preliminary objection, stating that the suit was incompetent as it was instituted vide an Originating Summons as the issue involves serious conflicting facts and cannot be resolved based on affidavit evidence. Also, it was stated that the Court lacked jurisdiction as the suit was against a sitting President of Nigeria who is protected from civil and criminal suits by virtue of Section 308 of the 1999 Constitution.
The Appellants filed a counter affidavit to the 2nd Respondent’s preliminary objection, urging the Court to strike out same on the grounds that the 2nd Respondent had no complied with the Federal High Court rules which requires it to file a counter affidavit upon the service of the Originating summons on it.
The 2nd Respondent filed a counter affidavit in opposition to the Originating summons, stating that the totality of the Appellant’s suit was to harass the Respondents.
The Learned trial judge delivered judgment on the 2nd of May, 2019, stating that the suit being a pre-election matter must have been instituted within the time stipulated by Section 285 (9) of the 1999 Constitution of the Federal Republic of Nigeria 4th Alteration
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and thus, the suit being filed outside the 14 days was statute barred. The suit was struck out for want of jurisdiction on this ground.
Dissatisfied with the judgment of the trial Court, the Appellants filed a Notice of Appeal dated the 15th of May, 2019 comprising of four grounds of appeal.
The Appellant’s Brief of argument was filed on the 28th of May, 2019, settled by Ukpai O. Ukairo Esq and two issues for determination were distilled:
(1) Whether the Learned Trial Judge was right in relying on the processes filed by the 1st Defendant/Respondent through a law officer in the Ministry of Justice? (Distilled from Ground one and four of the Notice of appeal.)
(2) Whether the Learned Trial judge was right in holding that the suit was statute barred by computing the number of days from the 28th day of September, 2018 when the 2nd Respondent held its primary election wherein the 1st Respondent was elected as a candidate of the 2nd Respondent? (Distilled from Ground two and three of the Notice of appeal.)
On issue one, learned counsel for the Appellants argued that for a Court to
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act upon and or rely on any process before it such a process must be proper before the Court if not, it is null and void. He further submitted that once there is an objection to the competence of a process, the Court is bound to rule on it and same cannot be waived. It was further argued that the Reply on Points of law to the 1st Defendant’s written address filed by the Appellant dated 11/1/19 had five grounds upon which they were relying on, particularly on the fifth ground which state that:
“Arising from the nature of the cause of action in this suit the Attorney General or a lawyer in his office cannot appear or file processes for the 1st Defendant.”
The Appellants’ counsel argued that during the hearing of the case, he urged the trial Court that all processes filed by the 1st Respondent through the law officers in the office of the Attorney General be struck out. From the foregoing it is the Appellants submission that the Learned Trial Judge was wrong to have held that the objection to the representation by the Attorney General was not made timeously.
The Appellants’ counsel further argued that it is evident from the processes and records of
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proceedings before the Court that there was a frontal challenge by the Appellants to the processes filed on behalf of the 1st Respondent by the law officers and that the Court was bound to rule on this issue and not sweep it under the carpet. It was also submitted that it is settled law that the issue of competence of a proceedings or a process cannot be waived when the challenge goes to the fundamental nature of the process and not merely on a procedural aspect of the process. Counsel to the Appellants urged the Court to hold that the reliance of the lower Court on the processes and the refusal to strike them out was wrong. This Court was urged to reverse the decision of the lower Court, assume original jurisdiction on the matter and strike out all the processes filed by the 1st Respondent’s Counsel.
On issue two, the Appellants’ counsel has argued that it is settled law that a cause of action means the fact or facts that give a person a right to judicial redress or relief against another. Also, a cause of action arises when the factual situation set out by the Plaintiff which if substantiated would entitle him to remedy against the defendant.
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The Appellants’ counsel therefore argued that the computation by the Court below that the date when the cause of action accrued was the date of the primary election of the 2nd Respondent was patently wrong in law because, among other reasons, the document in issue in this case is not any document submitted to the 2nd Respondent by the 1st Respondent but the one published by the 3rd Respondent. That the cause of action cannot accrue earlier than the date of publication of the document by the 3rd Defendant.
The Appellants has argued that by Section 31 (5) of Electoral Act it is the information given by the 1st Respondent to the 3rd Respondent that is the subject matter of this suit. That also it is inconceivable that in the light of the clear and express provisions of Section 31 of the Electoral Act and the reliefs sought, the Court reasoned that the Appellants could be challenging the information set out in a document submitted to a political party by an aspirant.
The Appellants’ counsel further argued that Section 285(9) of the 1999 Constitution (as amended) 4th Alteration cannot apply to an event occurring at the primary election of a party since
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the document in issue is a post primary document. That in the instant case, the Appellants submitted that the cause of action is not yet complete until the time “any person” has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false as provided in Section 31 (5) of the Electoral Act.
The Appellants’ counsel concluded his arguments by stating that the primary duty of a judge is to expound and not to expand the law. That the fundamental duty of the Court is to bring to the fore the intention of the legislature as expressed in a statute and nothing more.
The Appellants’ counsel finally urged the Court to reverse the decision of the Learned Trial Judge and hold that the suit is not statute barred.
The 1st Respondent’s Brief of Argument was dated the 4th of June, 2019, settled by Abdullahi Abubakar Esq and adopted the two issues for determination distilled by the Appellants. They are hereby reproduced hereunder thus:
(1) Whether the Learned Trial Judge was right in relying on the processes filed by the 1st Defendant/Respondent through a law officer in the
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Ministry of Justice? (Distilled from Ground one and four of the Notice of appeal.)
(2) Whether the Learned Trial judge was right in holding that the suit was statute barred by computing the number of days from the 2nd day of September, 2018 when the 2nd Respondent held its primary election wherein the 1st Respondent was elected as a candidate of the 2nd Respondent? (Distilled from Ground two and three of the Notice of appeal.)
On issue one, counsel to the 1st Respondent argued that it was right for the Learned Trial Judge to rely on the processes filed by the 1st Respondent through a Law Officer in the Ministry of Justice because the Appellants did not raise any objection to the competence of the legal appearance and processes filed on behalf of the 1st Respondent at the early stage of the proceedings. That in fact the Appellants served the entire processes meant for the 1st Respondent on the office of the Attorney General of the Federation. The 1st Respondent’s counsel therefore submitted that Appellants having in mind that the office of the Attorney General defends all actions against the office of the 1st Respondent should have during service made
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it known that the processes being served are for onward delivery by substituted means to the 1st Respondent in his personal capacity. That the Appellants having made that fact known cannot complain that the processes filed in defence of the 1st Respondent by the office of the Attorney General of the Federation is incompetent.
Additionally, counsel to the 1st Respondent argued that the Appellants had consistently during trial filed processes in response to the 1st Respondent on the office of the Attorney General of the Federation, Federal Ministry of Justice. That Appellants had before service of the originating processes on the 1st Respondent made an application for service of processes by substituted means on the 1st Respondent to which the trial judge had ordered that service must be effected on the office of the Attorney General of the Federation on behalf of the 1st Respondent.
The 1st Respondent’s counsel argued that the Appellant never at any time challenged the ruling of the Trial Court on the Ex-parte application delivered on 14th November 2018. That having failed to challenge same he cannot rightly be heard complaining that the 1st
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Respondent cannot be represented by a Law officer in the Office of the Hon. Attorney General of the Federation and processes filed on his behalf.
The 1st Respondent’s counsel further argued that the Appellants did not at any stage of the proceedings before the trial Court raise any objection to the representation of the 1st Respondent and processes filed on his behalf by a Law Officer.
That the only objection made by the Appellant was in the Appellant’s Reply on Points of Law to the 1st Respondent’s Counter Affidavit filed in opposition to the Appellant’s Originating Summons which shows that the objection was not timeously made.
Additionally, the 1st Respondent counsel argued that the hearing of the Appellant’s objection to the legal representation of the 1st Respondent as argued in the Reply on Points of Law dated 11th January, 2019 in response to the 1st Respondent’s Counter Affidavit in opposition to the Appellant’s Originating Summons will breach the 1st Respondent’s right to fair hearing under the Section 36 of the 1999 Constitution, as the 1st Respondent by the rules of pleadings had no right to respond to the fresh issue raised. That the
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raising of such objection at that stage of proceedings by a Reply on Points of Law is so late in time.
On issue two, 1st Respondent’s counsel argued that the Learned trial Judge was right in holding that the Appellant’s suit was statute barred by computing the number of days from the 28th day of September, 2018 when the 2nd Respondent held its primary election wherein the 1st Respondent was elected as a candidate of the 2nd Respondent. That the above is premised on the fact that Section 285 (9) of the 1999 Constitution (as amended) which provides that:
“Notwithstanding anything to the contrary in the 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.”
The 1st Respondent’s counsel argued that the provision above contemplates that an action shall not lie or be instituted against the 1st Respondent as the flag bearer of the 2nd Respondent in the 2019 presidential election unless it is commenced within 14 days next after the event, decision or action complained of.
The 1st Respondent’s counsel argued that the basis for the
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institution of this suit can be gleaned from paragraph 13 of the Affidavit in support of the Appellant’s Originating Summons which states that:
“(13) In his attempt to fulfill the preconditions for his candidature in the 2019 general election, the 1st Defendant submitted to the 3rd Defendant information which is false. The information is contained in the 1st Defendant’s INEC Form CF001, as well as the 1st Defendant’s curriculum vitae and affidavit of 2417 November, 2014 annexed to it.”
That the above paragraph and the exhibits reflecting the documents stated therein guides the Court as to when the cause of action commenced. The 1st Respondent further referred the Court to the fact that the affidavit in which the Appellant alleged contained false information was made 24th November, 2014, Exhibit KK4 (INEC Form CF001), Exhibit KK4A (Curriculum Vitae) were all submitted to the 3rd Respondent on the 18th October 2018. As such the Court was right when it held that the cause of action arose on the 28th September, 2018 when the 2nd Respondent held its primaries. This the 1st Respondent argued is because the information contained in Exhibits KK4, Exhibit KK4A
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and other documents relied upon by the Appellants were made available and submitted to 2nd Respondent’s Presidential Screening Committee which the 1st Respondent as the Presidential flag bearer of the 2nd Respondent.
Additionally, the 1st Respondent’s counsel argued that the Appellants admitted this fact where they failed to file a counter affidavit upon being served with the Further and Better Affidavit stating facts that the Appellants’ cause of action is statute barred as the suit was filed outside 14 days from the 28th September in breach of Section 285 of the 1999 Constitution. That the Appellants’ cause of action arose on the 28th September, 2018 which was the date the 1st Respondent emerged winner of 2nd Respondent’s Presidential primary election and became the presidential flag bearer of the 2nd Respondent.
The 1st Respondent’s counsel also argued that in the unlikely event that the Court holds that the Trial Court erred in law when it held that the Appellants’ cause of action arose on the 28th September, 2018, then it is their contention that the Appellants’ cause is still statute barred by the provisions of Section 285 (9) of the 1999 Constitution (as amended) 4th Alteration.
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This argument is premised on the fact that a careful study of the documents (Exhibits KK4, KK4A, 43, KK5, KK6, KK7 and the Affidavit containing the alleged false information made on the 24th December, 2014) the 1st Respondent submitted to the 3rd Respondent, it can be gleaned that they carried the stamp of the 3rd Respondent showing that they were received on the 18th of October, 2018. That it means that assuming the Appellant’s cause of action accrued on the date the documents were submitted to the 3rd Respondent, the suit is still statute barred as it is a clear 17 days after the cause of action arose.
The 1st Respondent further stressed that the submission above is supported by Section 31 (5) of the Electoral Act 2010 (as amended) which provides that:
“A person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.”
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Flowing from the above, 1st Respondent has argued that a reading of the provision above and Section 285 (9) of the 1999 Constitution is to the effect that a cause of action will arise the moment a false information is made in an affidavit or document submitted by a candidate in an election, which in this case is the 18th of October, 2018.
Finally, the 1st Respondent also argued that the Appellant in paragraph 5.9 of their Brief of Argument have erroneously argued that the cause of action in this suit “is not yet complete until “any person” in this case the Appellants … has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false.” as provided in Section 31(5) of Electoral Act.” This they argued is because the position by the Appellants is misleading and did not in any way reflect the purport of Section 31 (5) of the Electoral Act 2010 (as amended) and Section 285 (9) of the 1999 Constitution (as amended). That going by the Appellant’s interpretation, it presupposes that any person can comfortably wake up let’s say 3 years after a false information is
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allegedly made to challenge the competence of a person elected. The 1st Respondent concluded that the two Sections above contemplate that the moment false information is made in a document or affidavit submitted by a candidate for an election, the cause of action begins to run and after 14 days it extinguishes. They urged the Court to dismiss the Appellant’s appeal.
The 2nd Respondent’s Brief of Argument was dated the 26th of June, 2019, settled by Babatunde John Kwame Ogala Esq and 3 (three) issues for determination were distilled as follows:
1. Whether the Learned Trial judge was right in holding that the suit was statute barred by computing the number of days from the 28th day of September, 2018 when the 2nd Respondent held its primary election wherein the 1st Respondent was elected as a candidate of the 2nd Respondent? (Distilled from Ground two and three of the Notice of appeal.)
2. Whether the Learned Trial Judge was right in relying on the processes filed by the 1st Defendant/Respondent through a law officer in the Ministry of Justice? (Distilled from Ground one and four of the Notice of appeal.)
3. Whether the pre-conditions for the
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invocation of the powers of the Court of appeal to re-hear a case pursuant to Section 15 of the Court of Appeal Act 2004 has been fulfilled before the Appellant can seek the relief as endorsed in the Notice of appeal.
On issue one, the 2nd Respondent’s counsel argued that the issue of jurisdiction is very fundamental and to determine same, the Court must look at the originating process. It was further stated that a plaintiff must at all times file an action within the time stipulated by law. In reference to the provisions of Section 285 (9) of the 1999 Constitution of the Federal Republic of Nigeria 4th Alteration, it was argued that the Appellants ought to have filed the action within 14 days that the act complained of arose.
The 2nd Respondent’s counsel referred to paragraphs 13 – 14 of the affidavit in support of the originating processes where the Appellants stated that the false information complained of was contained in the curriculum vitae and affidavit dated 24th November, 2014 but was stamped by the 3rd Respondent on the 18th of October, 2018. The filing of the suit on 5th November, 2018 clearly made it out of time. It was further
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argued that the suit was a pre-election matter citing the case of CA/A/698/2018: MR ANTHONY ITANYI & ANOR VS. ALH. ABUBAKAR ATIKU BAGUDU & ORS (UNREPORTED).
This Court was urged to affirm the judgment of the trial Court.
On issue two, the 2nd Respondent’s counsel argued that the trial judge was right to rely on the processes filed on behalf of 1st Defendant as the Appellants did not raise the issue timeously. The delay should be regarded as a waiver of his right to complain as he had acquiesced on his right by taking steps with knowledge of the irregularity. Reference was made to A. G. BENDEL STATE VS. A. G. FEDERATION & ORS (1981) 10 SC PAGE 1; SARAKI VS. KOTOYE (1990) 6 SC PAGE 1.
Counsel to the 2nd Respondent further argued that an objection to appearance of counsel is a mere irregularity which by its nature cannot affect the jurisdiction of the Court. This Court was urged to affirm the decision of the trial Court on this issue.
On issue three, the 2nd Respondent’s counsel has argued that the Appellants did not place sufficient materials before the Court to invoke the powers of this Court under Section 15 of the Court of Appeal Act,
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thus, it will be right to infer that the relief has been abandoned. The 2nd Respondent’s counsel has gone ahead and cited cases which stated the principles that guide the Court of Appeal in exercising its powers under Section 15 of the Court of Appeal Act. Reference was made to ODEDO VS. INEC (2008) 7 SC @ 74; UGBA VS. SUSWAM (2013) 4 NWLR (PT. 1345) PAGES 427 AT 477.
The 2nd Respondent’s counsel also argued that by virtue of Section 285 (10) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) 4th Alteration which states that every Court in pre-election matter shall deliver judgment in writing within 180 days from the date of filing of the suit. And by this, since the suit was filed on the 5th of November, 2018, the 180 days would have lapsed by the 2nd of May, 2019. Thus, Section 15 of the Court of Appeal Act cannot be invoked by the Appellants because the trial Court no longer has the legal power to adjudicate in the matter for the Appellant Court to entertain it. Counsel to the 2nd Respondent also argued that the invocation of Section 15 of the Court of Appeal Act is not meant to
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correct the mistakes of counsel. Reliance was placed on ALIUCHA & ANOR VS. ELECHI & ORS (2012) LPELR – 7823 SC.
Also, the 2nd Respondent’s counsel argued that none of the real issues in contention was determinable from the grounds of appeal filed before this Court.
The Appellants filed a Reply brief to the 1st Respondent’s Brief of Argument, responding to the following issues:
1. Whether the brief of argument of the 1st Respondent is competent having been filed by a law officer considering the cause of action in the claim leading to the appeal?
2. The submission of the 1st Respondent’s that as a result of the service of the Originating Summons on the Attorney General of the Federation by virtue of the Order of substituted service the 1st Respondent can rightly be represented in Court by the Law Officers from the Office of the Attorney General of the Federation.
3. That the computation of the date the cause of action arose ought to be computed from the 24th of November 2014 when the 1st Respondent deposed to the Affidavit in contention.
On issue one, the Appellants argued that the said brief of the 1st Respondent is
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incompetent having been filed by a law officer and should be accordingly struck out.
On the issue two, the Appellants argued that the submission is legally flawed. That the essence of service of a process is to bring the process to the attention of the party involved in order to afford an opportunity to be heard. Reliance was made to ABRAHAM VS. AKEREDOLU [2018] 10 NWLR (PT. 1628) and SAVANNAH BANK (NIG) PLC VS. SABA [2018] 14 NWLR (PT. 1638). The Appellant also argued that there is nothing in the order for substituted service equating to a binding injunction upon the Attorney General or any Law Officer to offer legal representation to the 1st Respondent. That the laws restricting the appearance of the Attorney General and Law Officers for the 1st Respondent are substantive and not procedural therefore cannot be waived. Reliance was placed on GUSAU VS. APC [2019] 7 NWLR (PT. 1670).
The Appellants’ counsel further argued that the duty of the Attorney General and Minister of Justice was to call the attention of the 1st Respondent to the summons or apply to return the process to the Court as an improper recipient of same.
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Finally, on issue three, the Appellants’ counsel stated that the reliefs clearly indicate that the affidavit grounding the case is that comprised in Form CF001 deposed to by the 1st Respondent on 8th October, 2018. This according to the Appellants mean that all arguments founded on the affidavit of 24th November, 2014 are non-sequiter in view of the cause of action. That it is settled procedure for the deposition of an affidavit that it is impossible for a party to know of the content of an affidavit unless it is submitted to and published by the 3rd Respondent. In this case the 3rd Respondent on the 25th day of October 2018 published the Forms CF001 of the Presidential Candidates and the action was filed on the 5th day of November, 2018 which is within the 14 days of the said publication. Thus, the cause of action arose on the 25th of October, 2018 thereby not making the suit statute barred.
The Appellants’ counsel filed a reply brief of argument to the 2nd Respondent’s brief of argument dated the 5th of July, 2019 settled by Ukpai O. Ukairo Esq.
On the issue of the submission that 18th October, 2018 ought to be date of accrual of cause of action, the
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Appellants counsel have argued that the contention is wrong because the date of publication is disclosed and known as the date when the information comes to the attention of members of the public. He further argued that a person is not known to be a candidate until the publication of his particulars.
Also, on the submission that the Appellants waived their right to challenge the appearance of the law officers, the Appellants’ counsel has argued that this can only apply to mere procedural law or adjectival law but when it relates to substantive law, it cannot be waived. Reference was made to MAJEKODUNMI & ORS VS. OGUNSEYE (2017) LPELR-42547.
On the submission that the conditions for the Court of Appeal to assume jurisdiction is not fulfilled, the Appellants’ counsel has argued that the crucial task is to do what the lower Court ought to have done once the Court of Appeal comes to the conclusion that the lower Court had jurisdiction as held in the case of LEVENTIS NIGERIA PLC VS. AKPU (2007) LPELR-5 (SC) PG 23 – 24 PARAS F – C.
This Court was urged to uphold the appeal and grant the reliefs sought.
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PRELIMINARY OBJECTION
The 2nd Respondent filed a Notice of Preliminary Objection, stating that this Court is robbed of jurisdiction to entertain this suit because the jurisdiction of the trial Court was not properly ignited. It was stated that the nature of jurisdiction being so fundamental cannot be overemphasized. See MADUKOLU & ORS VS. NKEMDILIM (1962) LPELR 24023 (SC).
It was argued that the Plaintiffs at the trial Court failed to commence their action properly by complying with the Rules of Court by not complying with the provisions of Order 3 Rule 12 (1) of the Federal High Court Civil Procedure Rules 2009 which states that the Registrar shall seal every originating process whereupon it shall be deemed to be issued and failure to do so has robbed the Court of its jurisdiction.
The 2nd Respondent’s counsel has argued that the Originating summons was neither signed nor sealed by the Registrar of Court, thus, making it incurably defective and liable to be set aside as incompetent and a nullity. Reference was made to TITILAYO PLASTIC INDUSTRIES LTD & ORS VS. FAGBOLA (2019) LPELR-47606 (SC).
On this note, this Court was urged to uphold
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the objection and dismiss the suit before the trial Court as well as this appeal for want of jurisdiction.
In their reply brief, the Appellants in response to the preliminary objection argued that Originating Summons is provided for by Order 3 Rule 9 of the Federal High Court Rules 2009 which provides that an originating summons shall be in Forms 3, 4 or 5 of the Rules with such variations as circumstances may require. An originating summons shall be accompanied by an affidavit setting out the facts relied upon and copies of the exhibits to be relied upon. It was argued that there was no column for the signature of Registrar. Thus, it is not the rule of practice of the Federal High Court that an originating summons must be signed or sealed.
The Appellants’ counsel however argued that in the event that the signature of the Registrar is very necessary for the validity and competence of an originating summons, the mistake of the Registry of Court should not be visited on litigant and counsel as they cannot be made to suffer what was beyond their control. Reference was made to AKPAJI VS. UDEMBA (2009) LPELR 371 (SC) PAGE 17 – 18 PARAS E – D.
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This Court was urged to dismiss the objection.
RESOLUTION OF THE NOTICE OF PRELIMINARY OBJECTION
Having read the arguments of the 2nd Respondent and the response of the Appellants’ counsel, I have examined and studied the Supreme Court’s case of TITILAYO PLASTIC INDUSTRIES LTD & ORS VS. FAGBOLA (2019) LPELR 47606, cited by the learned 2nd Respondents counsel. In the said case, the apex Court held as follows:
“Again, on this originating summons issue is the question of the improper issuance of the said summons. The Court of Appeal had held that the originating summons was not signed either by the Registrar of the trial Federal High Court or the presiding Judge. The Court below therefore held that there was non-compliance in an incurably defective way. It is difficult to go against what the Court below said in the light of Order 7 Rule 8 of the Federal High Court (Civil Procedure) Rules, 2000, the applicable Rules of the trial Court at the time the originating summons was filed and it stipulates thus:-
“Order 7 Rule 8 – An originating summons is issued upon its being signed by a judge in chambers.”
The words used in
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those Rules are plain and unambiguous and so the only way an originating summons is alive and valid is upon its having been signed by a judge. That means where it is not so signed as in this case, there is no originating summons and the option open to the judge is to either strike it out or to order pleadings. Indeed, the implication of the lack of the judge’s signature is that the condition precedent to the action being commenced in accordance with due process of law has not been fulfilled and so the Court lacks competence to adjudicate on the matter. See Madukolu v Nkemdilim (1962) 1 All NLR 587 at 595 wherein this Court highlighted factors that must exist in determining whether or not the Court has jurisdiction to entertain an action before it and the factors are stated hereunder, viz: –
1, The Court is properly constituted with respect to the number and qualification of its members.
2. The subject matter of the action is within its jurisdiction.
3. The action is initiated by due process of law; and
4. All conditions precedent to the exercise of its jurisdiction have been fulfilled.
See Atolagbe v Awuni (1997) 9 NWLR (Pt.522) 536 at
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591-592; Babalola v Oshogbo L.G. (2003) 10 NWLR (Pt.829) 465 at 489-481; NNPC v Elumah (1997) 3 NWLR (Pt. 492) 195 at 203-204.
I agree with learned counsel for the respondent that the absence of the signature of the trial judge or the registrar of the trial Court amounts to the appellants’ failure to commence this suit in line with due process. I agree with the submission of the respondent that this failure to comply with the condition precedent has the effect of rendering the entire originating summons and action incompetent, void and no effect. See Bayero v Mainasara (2006) 8 NWLR (Pt. 982) 391 at 425-426 and Idris v Archibong (2001) 9 NWLR (Pt.718) 447 at 458- 459. In Kida v Ogunmola (2006) All FWLR (Pt.327) 402 at 412- 413, (2006) 13 NWLR (Pt.997) 377 at 394, this Court held:-
“In my view, the validity of the originating process in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable
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to be set-aside as incompetent and nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter… “
The failure of the Registrar or the trial judge to sign the Originating Summons is fatal and goes down to the issue of jurisdiction. It has made the Originating Summons incurably defective and liable to be set aside by this Court. As we know, once the Originating process is dead, all processes filed in respect of same are equally dead as you cannot place something on nothing and expect it to stand. See MACFOY VS. UAC (1961) 3 ALL ER PAGE 116 AT 1172.
On this note, I hereby uphold the preliminary objection filed by the 2nd Respondent and I hereby strike out the suit at the trial Court and dismiss this appeal.
However, in the event that I am wrong in upholding the preliminary objection, I will go ahead and decide the issues raised in the main appeal.
MAIN APPEAL
I have painstakingly read and digested the briefs filed by learned counsel for the Appellants, 1st Respondent and 2nd Respondent respectively and I will go ahead and resolve all the issues raised therein. I shall adopt
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the issues for determination raised by the Appellants and same is hereby reproduced hereunder as follows:
1. Whether the Learned Trial Judge was right in relying on the processes filed by the 1st Defendant/Respondent through a law officer in the Ministry of Justice?
2. Whether the Learned Trial judge was right in holding that the suit was statute barred by computing the number of days from the 28th day of September, 2018 when the 2nd Respondent held its primary election wherein the 1st Respondent was elected as a candidate of the 2nd Respondent?
Since the second issue raised bothers on jurisdiction, I am inclined to resolve same first. The second issue attacks the competence of the action as constituted. It is settled law that where an action is not competent or properly constituted, it robs the Court of the jurisdiction to entertain same. In other words, such a complaint raises the issue of jurisdiction of the trial Court and ought to be dealt with first and foremost since a judgment delivered in an action outside the jurisdiction of the Court amounts in law to a nullity irrespective of how well the proceedings was conducted by the trial judge.
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See OFIA V. EJEM (2006) 11 NWLR (PT992) 652; ODESSA V. FRN (N0.2) (2005) 10 NWLR (PT 934) 528; FABS V. IBIYEYE (2008) 14 NWLR (PT1107) 375; RIRUWAI V. SHEKARAU (2008) 12 NWLR (PT.1100) 142.
ISSUE TWO
Whether the Learned Trial judge was right in holding that the suit was statute barred by computing the number of days from the 28th day of September, 2018 when the 2nd Respondent held its primary election wherein the 1st Respondent was elected as a candidate of the 2nd Respondent?
In determining whether a suit is statute barred, one must pay serious attention to when the cause of action accrued. This instant appeal is borne out of a pre election matter which is regulated for by Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) 4th Alteration which provides that:
“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 suit was filed on the 5th of November, 2018 and the trial judge held in his judgment that the matter was statute barred.
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The 1st and 2nd Respondents have also vehemently argued that the matter is statute barred having been filed outside the 14 days stipulated by law.
The question to be asked is: when did the cause of action arise? In determining this question, only the affidavit in support of the Originating Summons must be looked at. This is because in actions initiated by Originating Summons, the depositions in the affidavit in support are evidence upon which the Court must decide the issue.
In determining when the cause of action of the Appellants arose, it is trite law that for a Court to determine what the cause of action is in a suit, it must look only at the statement of claim. In the case of YARE VS. NATIONAL SALARIES INCOME AND WAGES COMMISSION (2006) 2 NWLR (PT. 965) PAGE 546, it was held that:
“In determining when a cause of action is said to have accrued, the Courts are enjoined to consider the plaintiff’s statement of claim or the factual situation on which the plaintiff relies to support his claim.”
The Straud’s Judicial Dictionary 4th Edition defined cause of action as “the entire set of facts that gives rise to an enforceable claim.” In the
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case of OGBIMI VS. OLOLO (1993) 7 NWLR (PT. 304) PAGE 128 at 136, it was held:
“A cause of action, is, in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaints and the consequent damage.”
In the case of AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR (PT. 127) PAGE 369 AT 382-383 it was held:
“When facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligation exists side by side, a cause of action is said to have accrued.”
Finally, in the Court of Appeal case of OBIKA VS. OBIKA (2018) LPELR-43965, cause of action was defined thus:
“A cause of action generally refers to every fact which is necessary for the plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle or aggregate of facts which the law recognizes as giving the plaintiff a substantive and recognized right to make the claim against the relief or remedy being sought. Thus, the verifiable factual situation on which
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the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right, capable of being claimed or enforced against the defendant. In other words, the eventual factual situation relied upon by the plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the defendant that gives to the plaintiff his cause of complaints is a cause of action.”
I have read through the Affidavit in support of the Originating summons and one can easily decipher that the crux of the Appellants case is the submission of information said to be false by the 1st Respondent in fulfillment of the conditions necessary for him to participate in the 2019 general elections.
This is contained in some paragraphs of the Affidavit in support of the Originating summons I have picked out. Same is hereby produced for ease of reference.
8. That I am a Political stakeholder of the 2nd Defendant and I have an interest in who emerges as the Presidential Flagbearer and candidate of my party, the 2nd Defendant for the 2019 general elections.
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13. In his attempt to fulfil the preconditions for his candidature in the 2019 general elections, the 1st Defendant submitted to the 3rd Defendant information which is false. The information is contained in the 1st Defendant’s INEC Form CF001 as well as the 1st Defendant’s curriculum vitae and affidavit of 24th November, 2014 annexed to it.
14. That the information supplied by the 1st Defendant in his said INEC Form CF001 was deposed under oath and the 1st Defendant swore to have deposed to same to the best of his knowledge and representing the said facts to be true and correct.
19. The 1st Defendant did not submit his academic credentials to the 3rd Defendant.
29. That the 1st Defendant knowing the falsity of his said “certificate” cleverly refused to attach any of his said academic certificates but claimed that his certificates were with the Nigerian Military, a fact he knew to be false.
31. While addressing a televised news conference which I watched on Channels Television at about 8.45pm on 20th January, 2015, the Director of Army Public Relations, Brigadier General Laleye said and I verily believe him, that the Nigerian Army does not have custody of either
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the original or a certificed true copy of the 1st Defendant’s West African School Certificate.
32. That I have reasonable grounds to believe that the 1st Defendant submitted false information to the 3rd Defendant regarding his qualifications and certificates.
34. That the 1st Defendant who parades himself as an anti-corruption crusader knew or reasonably ought to know that the facts he swore under oath and submitted to the 3rd Defendant were false and untrue.
37. That the 1st Defendant knowing the falsity of the information he submitted to the 2nd Defendant ought not to have presented himself as a candidate of the 2nd Defendant.
38. That the 2nd Defendant knowing of the falsity of the information made by the 1st Defendant to the 3rd Defendant ought not to have presented or submitted the name of the 1st Defendant as the nominated candidate of the 2nd Defendant.
From the above depositions, the Appellants have made it clear that their grievance is against the information contained in the Form CF001, Affidavit and Curriculum vitae submitted by the 1st Respondent. The word “submitted” was repeatedly mentioned. I have no doubt in mind that
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the cause of action arose when the said documents were submitted to the 3rd Respondent.
When were the documents submitted? I have looked at the Exhibits marked EXHIBITS KK4, KK4A and KK4B which are the Form CF001, curriculum vitae and affidavit and on the face of all the documents, it was received by the 3rd Respondent on the 18th of October, 2018.
Without an iota of doubt in mind, the cause of action arose on the 18th of October, 2018. The Appellants’ counsel never made mention of the date their cause of action arose but lazily left it to the Court to figure same out. Such an attitude is unheard of. Even in the Appellants’ brief of argument, the Appellants never mentioned a date when their cause of action arose. They merely emphasized on the provisions of Section 31 (5) of the Electoral Act 2010, stating that the cause of action is not yet complete until the time “any person” who has reasonable grounds to believe that the information submitted is false. When did the “person” who in this case are the Appellants have reasonable grounds to believe the information submitted was false? It was not stated at all in the affidavit in support of the
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Originating Summons.
I totally disagree with the findings of the trial judge on pages 341 – 342 where he stated that:
“Again, the 1st Defendant in Paragraph 4(c) deposed that the 2nd Defendant’s primary election was held on 28/9/2018 and that the Plaintiffs instituted this suit on 5/11/18. The Plaintiffs have again failed to controvert this deposition. From the originating summons, it is manifestly clear that the Plaintiffs are challenging the documents the 1st Defendant submitted to the 3rd Defendant culminating in the primary election that took place on 28/9/2018 wherein the 1st Defendant emerged winner. This suit was filed on 5/11/18 on an event that took place on 28/9/2018. Election related matters are sui generis. See the case of HASSAN V ALIYU (2010) ALL FWLR PART 539, 1007 AT 1046. In the instant case, the failure of the Plaintiffs to file their suit not later than 14days after the alleged false information given to the 3rd Defendant culminating in the primary election of the 2nd Defendant wherein the 1st Defendant emerged winner as required by Section 285 (9) of the 1999 Constitution (4th Alteration) Act, 2017 is fatal to their case and
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oust this Court’s jurisdiction to entertain the matter.”
The cause of action cannot be said to have arisen on the 28th of September 2018 when the primary election took place because at no point in time did the Appellants object to the conduct or results of the primary election. The cause of action clearly arose on the 18th of October, 2018 when the documents wherein the supposed false information is contained was submitted to the 3rd Respondent.
I also disagree with 1st Respondent’s counsel argument in paragraph 4.21 wherein he agreed with the findings of the judgment that the cause of action arose on the 28th of September, 2018 which was the day the 1st Respondent contested at the primary election and emerged winner. However, the 1st Respondent’s counsel had also in paragraph 4.22 of his brief of argument argued that the cause of action arose on the 18th of October, 2018 when the documents were received by the 3rd Respondent. This I agree with.
The 2nd Respondent has also in paragraph 3.8 of its brief of argument argued that the cause of action arose on the 18th of October, 2018 and I agree with same.
Looking at paragraph
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3.12 of the Appellants’ Reply Brief where the Appellants stated that:
“The 3rd Respondent on the 25th day of October, 2018, published the Form CF001 of the Presidential candidates submitted to it and the Appellants filed their Originating summons on the 5th day of November, 2018 which was within 14 days of the said publication.”
I am taken aback by this argument as it is clearly an afterthought. What took the Appellant so long to finally put a date to when their cause of action arose? I would not know. However, this final disclosure is inconsequential as it is trite law that the submission of counsel can never ever take the place of evidence no matter how beautifully and convincingly couched. In matters brought by way of Originating Summons, all the Court must concern itself with are the depositions and evidence contained in the affidavit in support as such suits are determined by affidavit evidence.
In the case of FBN PLC VS. AKPARABONG COMMUNITY BANK LTD & ANOR (2005) LPELR 7496, it was held:
“It is surprising that a Court would ignore the application, prayers and affidavit evidence before it and make an order based on the mere
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submission of counsel. The submissions of counsel cannot be a substitute for evidence.”
Also, in the Supreme Court case of CHUKWUJEKWU VS. OLALERE & ANOR (1992) 2 NWLR (PT. 221) PAGE 86, it was held that:
“It is now trite law that no matter how brilliant and persuasive counsel’s submission may be, it can never metamorphose to evidence.”
All submissions made by counsel to the Appellants on this issue cannot take the place of the evidence conveyed by the affidavit in support of the Originating Summons.
In the Supreme Court case of OGUNSANYA VS. STATE (2011) 6 (PT. 1) MJSC 24 AT 65 it was stated per Rhodes-Vivour, JSC that:
“A case is won on credible evidence and not on address. No amount of brilliance or playing to the gallery by counsel can make up for lack of evidence to prove or defend a case. The main purpose of address is to assist the Court and is never a substitute for compelling evidence. Failure to address will not be fatal or cause miscarriage of justice. This is so because whether counsel addresses a Court or not the Court must do its own research with the sole aim of seeking the truth and determining which side is
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entitled to judgment.”
Delving into the other issues raised in the appeal will be regarded as an academic exercise as the case has been held to have been statute barred by virtue of Section 285 (9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) 4th Alteration and robs this Court of its jurisdiction.
In the Supreme Court’s case of PLATEAU STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR (PT. 967) PAGE 346 AT 419, it was held per Niki Tobi, JSC that:
A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.”
In the Supreme Court’s case of AKEREDOLU VS. ABRAHAM (2018) 10 NWLR (PT. 1628) PAGE 592 AT 595, it was held per Okoro, JSC that:
“It is trite law that Courts do not expend valuable judicial time and energy on academic issues or exercise.”
Finally, in the Supreme Court case of POPOOLA VS. STATE (2018) 10 NWLR (PT. 1628) PAGE 485 AT 496, it was held per Rhodes-Vivour, JSC that:
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“It is long settled that Courts should not spend precious judicial time engaging in an academic exercise that is best left for the law faculty. Judges are to decide live issues.”
In totality, I find no merit in the second issue for determination raised by the Appellant. This issue is hereby resolved in favour of the Respondents. The issue being a jurisdiction matter has determined this appeal.
In any case, even if the appeal succeeds, it would make no difference as no trial can validly take place on the pleadings since the 180 days prescribed by Section 285 (10) of the 1999 Constitution for the trial of a pre-election matter from 5th of November 2018 when it was filed expired on 4th May 2019.
The trial Court has lost the jurisdiction to try the suit any longer, and this Court cannot exercise its jurisdiction under Section 15 of the Court of Appeal Act to hear the matter. It is the law that Courts of law do not act in vain. In the case of INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) PAGE 423 AT 713 TO 714 PARAS H – B, the apex Court while considering the provision of Section 16 of the Court of Appeal Act per Niki Tobi, JSC in the lead judgment held as follows:
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“The Court of Appeal can exercise its Section 16 power if only the High Court has jurisdiction in the matter. Accordingly, jurisdiction of the High Court is a precondition for the invocation of the provision of Section 16 by the Court of Appeal. In the more recent case of Professor Olutola V University of Ilorin (2004) 18 NWLR (PT 905) 416, this Court held that the Court of Appeal can exercise power of Section 16 if only the trial Court has jurisdiction in the matter. See NICON V. Power and Industrial Engineering Co. Ltd (1990) 1 NWLR (PT 129) 697, Faleye V Otapo (1995) 3 NWLR (PT 381) 1.”
In the case of SHETTIMA VS. GONI (2011) 18 NWLR (PT. 1279) 413 AT 452, the Supreme Court held:
“It is settled law that this Court can only exercise its powers under the said Section 22 by exercising the jurisdiction of the lower Court where that Court has the jurisdiction to act, not where that Court has the jurisdiction to act, not where the Court has ceased to have jurisdiction over the matter. In short, the jurisdiction of this Court under Section 22 of the Supreme Court Act depends completely on the Court of Appeal having jurisdiction to deal
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with the matter in issue and pending before it.”
Similarly, in OBI VS. INEC & ORS (2007) 11 NWLR (PT. 1046) 565 AT PG. 639, PARAS E-G, the Supreme Court per Aderemi, JSC held as follows:
“Broadly speaking, the provisions of Section 16 of the Court of Appeal Act confer legal power on the Court of Appeal to make any order which the Court have made in the interest of justice. This presupposes that the Court below, the Court of Appeal, must have got jurisdiction to entertain the suit and the Court below it also had jurisdiction in the matter but failed to exercise it. The provisions do not confer on the Court of Appeal the power to make an order which the trial Court could not have made in resolving the dispute between the parties in the suit before it.”
The judgment of the trial Court in Suit No FHC/ABJ/CS/1310/2018 is hereby affirmed. The Appeal is dismissed. There is no order as to cost.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA. I am in full agreement with his reasoning and conclusion in
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dismissing this appeal.
On the preliminary objection filed by the 2nd Respondent, the present position of the law is that a defective originating process is not merely an irregularity but it goes to the root of competence of the whole suit filed, hence an originating summons neither signed nor sealed by the Registrar of Court as provided by Order 3 Rule 12 (1) of the Federal High Court Civil Procedure Rules, 2009 is incurably defective. SeeTitilayo Plastic Industries Limited & Ors. v. Fagbola (2019) LPELR-47606. The Court is devoid of jurisdiction to entertain the matter. The action has no foundation upon which any case can be erected. It is incompetent ab initio. The trial Court was therefore right to have dismissed the suit. I agree that the preliminary objection has merit and it is hereby upheld.
The Court below in another angle lacked the jurisdiction to entertain the suit filed by the 1st Respondent for being statute barred pursuant to Section 285 (9) of the 1999 Constitution as amended by the 4th Alteration Act, 2017. It is elementary that no Court has the jurisdiction to entertain a suit that is statute-barred. The law is also
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trite that it is the duty of the Court to determine what the event, decision is or action complained of in order to arrive at the decision whether a claim is statute barred. To undertake this task, it is the claim of the Plaintiff that has to be examined to ascertain whether the Court is seised of the jurisdiction to hear the matter. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 where the Court stated that:
“It is fundamental that jurisdiction is determined by the Plaintiff’s claim. In other words it is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the Court.”
This duty of the determination of the Court’s jurisdiction is not dependent on the conception of the Plaintiff or any party in the suit. Rather, it is the sole responsibility of the Court which only be concluded from the facts garnered from the processes before the Court. The submission of the Appellant in his Reply Brief paragraph 3.12 thereof stating that the “3rd Respondent on the 25th of October, 2018, published the Form CF001 of the Presidential candidates submitted to it and the
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Appellants filed their Originating Summons on the 5th day of November, 2018 which was within 14 days of the said publication” cannot be of any assistance to the Appellants’ case. It is tantamount to the counsel giving evidence since the issue was never raised by the Appellants in their pleadings. It is an elementary principle of law that the submission of counsel cannot be substituted for evidence. The relevant depositions in the Affidavit in support of the Originating Summons upon which the accrual of the cause of action can be deduced are paragraphs 13, 14, 19, 29, 31 and 32:
13. In his attempt to fulfill the preconditions for his candidature in the 2019 general elections the 1st Defendant submitted to the 3rd Defendant information which is false. The information is contained in the 1st Defendant’s INEC Form CF001 as well as the 1st Defendant’s curriculum vitae and affidavit of 24th November, 2014 annexed to it.
14. That the information supplied by the 1st Defendant in his said INEC Form CF001 was deposed under oath and the 1st Defendant swore to have deposed to same to the best of his knowledge and representing the said facts to be true and
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correct.
19. The 1st Defendant did not submit his academic credentials to the Defendant
29. That the 1st Defendant knowing the falsity of his said “certificate” cleverly refused to attach any of his said academic certificates but claimed that his certificates were with the Nigerian Military, a fact he knew to be false.
31. While addressing a televised news conference which I watched on Channels Television at about 8.45pm on 20th January, 2015, the Director of Army Public Relations, Brigadier General Laleye said and I verily believe him, that the Nigerian Army does not have custody of either the original or a certified true copy of the 1st Defendants West African School Certificate.
32. That I have reasonable grounds to believe that the 1st Defendant submitted false information to the 3rd Defendant regarding his qualifications and certificates.
A careful examination of these paragraphs elicit the facts that the 1st Appellants became aware of the alleged information in INEC Form CF001 as far back as 2014 (paragraphs 13 – 14).
Paragraph 31 confirmed his knowledge of the alleged falsity of the 1st Respondent’s West African School
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Certificate. Paragraph 13 shows that INEC Form CF001 containing the alleged information was submitted to the 3rd Respondent, which on the face of Exhibits KK4 series, were received by INEC on 18/10/18, The action complained of in this suit is the submission of false information contained in INEC Form CF001. Now, assuming the alleged false certificate is among the documents submitted to 3rd Respondent on 18/10/2018, then the cause of action would be deemed to have accrued on that 18/10/2018. I employed the word “assuming” with caution because in paragraph 19 of Affidavit in support of the Originating Summons, he stated that the “1st Defendant did not submit his academic credentials to the 3rd Defendant.”
However, this action having regard to Section 285 (9) of the 1999 Constitution (as amended) which provides that every election matter shall be filed not later than 14 days from the date of occurrence of the event, decision or action complained of in the suit, has lapsed. It is statute barred.
Limitation of Action or “Statute Bar” is the principle of law requiring a Plaintiff to seek prompt remedy for the breach of his right in a Court of law, within
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the time limited by law, otherwise, his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing and action by law. In other words, his right of action has expired by effluxion of time without determining same. See Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606, Chigbu v. Tonimas (Nig) Limited (2006) 9 NWLR (Pt. 984) 189.
For the above reasons and the more detailed ones contained in the well-considered in the lead judgment, I also dismiss the appeal.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, MOHAMMED BABA IDRIS, JCA, I agree with the reasoning, conclusions and orders therein.
The suit leading to this appeal is one brought under or in pursuance of S.31(5) and (6) of the Electoral Act 2010(as amended) which provide that-
“(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a
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declaration that the information contained in the affidavit is false.
(6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.”
It is no doubt a pre-election suit. This Court in Itanyi & Ors v Bagudu (supra) held that pre-election matters as defined in S.285(14) cover a pre-election action brought under S.31(5) of the Electoral Act 2010 as amended in the following words-
“A conscious reading of Section 285(14) of the said Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act 2017, shows that it is capable of giving escape route to the litigants who decide to challenge the eligibility of a candidate to vie for an elective office created by the Constitution and the law if such litigants decides to utilize the window provided under Section 31(5) of the Electoral Act. This would unwittingly mean that the amendment is only for a litigant who commences his action vide Section 87(9) of the Electoral Act 2010 as amended. This really is not the purpose
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and intention of the said amendment. What is good for the goose should be equally convenient for the gander. The Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act 2017 cannot be construed or interpreted discriminately in favour of any of the litigants in pre-election matters just because the person decides to sue a candidate in an election pursuant to Section 31(5) of Electoral Act, 2010. The whole essence of the amendments in the Fourth Alteration will be stultified. It will defeat the purpose of the amendments and the mischief the law makes set out to curb and terminate. It will lead to injustice.”
This point is already settled by a long line of Supreme Court decisions, in WIKE EZENWO NYESOM V. HON. (DR) DAKUKU ADOL PETERSIDE & ORS (2015) 11-112 SCM 139 AT 164 H-I per. The Supreme Court held that- “The intention of the lawmakers is to make the provisions of the amendments applicable to all classes of pre-election matters whether emanating from Section 31 (5) or 87 (9) of the Electoral Act 2010 as amended. The long title to the Act is very indicative of this and lends credence to the fact that the two categories of
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pre-election matters are amenable to the provisions of the amendments. It says: “Act to alter the provisions of the Constitution of the Federal Republic of Nigeria 1999 to provide time for the determination of pre-election matters; and for related matters (underlined mine).
The definition of Section 285 (14) (a) (b)(c) of the aforesaid Constitution must not be allowed to throw spanner into the wheel of progress in administration of justice to circumvent the laudable objectives and intendments of the amendments to the Constitution aforesaid for the mutual benefit of stakeholders in the three arms of government and the general public.”
In PDP v. INEC & Ors (2014) LPELR 23808 (SC) the Supreme Court held that “The provisions of S.31(5) & (6) of the Electoral Act, 2010 (as amended) cannot be ventilated at an election tribunal. The first reason is that the language of the section and the reliefs to be granted point irresistibly to a pre-election action. Secondly, an election petition tribunal is not mentioned in Section 31 (5) of the Electoral Act, 2010 (as amended) as one of the Courts where such a complaint can be made…” In PDP appeal in
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Salim V. APC (supra) it held that- .the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matters” (See pp.22 paras. D-E.).”
Hon. Ishola Balogun Fulani & Anor vs Comrade Adams Oshiomole & 5 Ors suit No.: SC/214/2019 (unreported) and Senator Magnus Ngei Abe & Ors vs INEC & Ors Suit. No.: SC/197/2019 (unreported),… Senator Nurudeen Ademola Adeleke & 1 Or. V. Awosiyan Olalekan Kingsley & 3 Ors. (supra); Salim vs CPC (2013) -2 SC (pt 4) 105 AT 130 per Peter-Odili, JSC, Hon. Ishola Balogun Fulani & Anor v. Comrade Adams Oshiomole & 5 Ors suit No.: SC/214/2019 (unreported) and Senator Magnus Ngei Abe & Ors vs INEC & Ors Suit. No.: SC/197/2019 (Unreported). See also Akpamgbo Okadigbo & Ors v. Chidi & Ors (2015) LPELR 24564 (SC), Ekeagbara & Anor v. Ikpeazu (2016) LPELR-26052 (SC).”
The cause for a suit under S.31(5) and (6) of the Electoral Act 2010 as amended occurs when a candidate gives information in an affidavit or a document to the Independent Electoral Commission.
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This Court in PDP V. Raheem & Ors (Unreported Judgment of 30-5-2019 in CA/A/362/2019) in dealing with a similar issue held thusly- “It is obvious from the clear words of S.31(5) of the Electoral Act 2010 that the act that should be complained of in a case brought under it, such as this case, is giving of information of the candidate’s personal particulars in the affidavit of personal particulars (Form C.F.001) and the documents that accompanied it to the 4th respondent.
The giving of the information occurred when the Form CF 001 and the accompanying documents were submitted by the appellant and 3rd respondent to the 4th respondent. As it is clear from the 4th respondent’s stamp and date on the said Form C.F. 001 and the documents that accompanied it, acknowledging receipt of them, that the date they were submitted to the 4th respondent was 24-7-2018. So the event or action complained of occurred on 24-7-2018.
This Court in Ikpeazu v. Ekeagbara (2016) LPELR-40847 (CA) stated when a cause for an action under S.31(5) of the Electoral Act accrues in the following words- “In determining when the cause of action arose or accrued for the purpose of
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initiating Suit No. MC/AID/CS/1086/14r the affidavit filed in support of the Suit is germane. In Paragraphs 4(a) to (k), the 1st and 2nd respondents as plaintiffs deposed to the holding of the Primary Election of the People’s Democratic Party (PDP) 3rd respondent. From the depositions in the aforesaid paragraphs of the affidavit in support of the suit filed by the 1st and 2nd respondents, when considered together with the documents contained in INEC FORM CF 001 which the appellant submitted to INEC, 4th respondent on 26/12/14, it is evident that the cause of action arose or accrual on 26/12/161 the date FORM CF 001 was submitted to INEC, 4th Respondent, not on 8/12/16 when the appellant submitted same to the PDP for purpose of holding primary election. This view is supported by the decision in the case of Ojukwu v. Yar’adua (2008) 12 NWLR (Pt. 1150) p. 50 @ 131, where it is stated that the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See also Adimora v. Ajufo (1988) 3 NWLR (Pt. 30) P. 1 and Egbue v. Araka (1988) 3 NWLR (Pt. 840) P. 598.
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The provisions of Section 31(1), (2) and (3) of the Electoral Act, 2010 throw more light or reveal when the cause of action ought to accrued or arisen. All the foregoing acts cannot take place before the submission of the documents on the 26/12/16 to INEC, therefore, the cause of action accrued on that date.”
The 1st respondent’s Form CF001 and affidavit containing his personal particulars was submitted to the 3rd respondent on 18-10-2018. The suit was filed on 5-11-2018, 18 days from 18-10-2018, contrary to S.285(9) of the 1999 Constitution. The trial Court lacked the jurisdiction to entertain it.
In the light of the foregoing and the more detailed reasons contained in the lead judgment I also dismiss this appeal.
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Appearances:
U.O. Ukairo, Esq. with him, G.A. Haruna, Esq. and V.I. Umah, Esq. For Appellant(s)
A. Abubakar, Esq. for the 1st Respondent.
B.J.K. Ogala, Esq. with him, J. Ishola, Esq. and T. Lasaki, Esq. for the 2nd Respondent.
A. Onyeri, Esq. for the 3rd Respondent For Respondent(s)
Appearances
U.O. Ukairo, Esq. with him, G.A. Haruna, Esq. and V.I. Umah, Esq. For Appellant
AND
A. Abubakar, Esq. for the 1st Respondent.
B.J.K. Ogala, Esq. with him, J. Ishola, Esq. and T. Lasaki, Esq. for the 2nd Respondent.
A. Onyeri, Esq. for the 3rd Respondent For Respondent
