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MR. JOHN ADANIKE v. ALL PROGRESSIVE CONGRESS & ORS (2019)

MR. JOHN ADANIKE v. ALL PROGRESSIVE CONGRESS & ORS

(2019)LCN/13769(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 27th day of August, 2019

CA/AK/274/2019

JUSTICES:

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

MR. JOHN ADANIKE – Appellant(s)

AND

1. ALL PROGRESSIVE CONGRESS
2. MR. ADAMS OSHIOMOLE
(NATIONAL CHAIRMAN ALL PROGRESSIVE CONGRESS)
3. MR. BABATUNDE OGALA
(NATIONAL ADVISER ALL PROGRESSIVE CONGRESS)
4. MR. ADE ADETIMEHIN
5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
6. MR. ADE ADEOGUN – Respondent(s)

RATIO

WHETHER OR NOT AN AGGRIEVED ASPIRANT IN PRE-ELECTION MATTERS IS TO FIRST RESORT TO THE INTERNAL DISPUTE RESOLUTION MECHANISM OF HIS POLITICAL PARTY BEFORE APPROACHING THE COURT TO SEEK REMEDY

It is trite law that in pre-election matters or matters under Section 87(9) of the Electoral Act, 2010 (as amended, 2015) an aggrieved Aspirant is not bound to first resort to the internal dispute resolution mechanism of his Political Party before approaching the Court to seek remedy. This is because S. 87(9) (supra) is not subject to the Constitution and Electoral Guidelines of any political party. See the cases of PDP V. NGUROJE & ORS (2012) LPELR 20859 (CA) 67-73, PARAS. A-C and APC & ORS V. KARFI & ORS (2015) LPELR 41857 (CA) 33-34, PARAS. D-C.
It is trite law that negotiation between parties does not prevent time from running for purposes of limitation of time for filing an action. See L.G.S.C. EKITI STATE V. BAMISAYE (2016) 8 NWLR (PT. 1514) 373 @ 380 PARAS. B-D. and SENATOR AYOGU EZE & ORS V. BARR. GEORGE OGARA & ANOR (2019) LPELR 47131 (CA) 28-33 PARA. D. PER ABDULLAHI, J.C.A.

WHETHER OR NOT THE BURDEN OF PROOF LIES ON THE PARTY WHO ASSETS AND NOT UPON HIM WHO DENIES

To determine this important issue as arising for determination, it is important to identify and isolate who among the parties bears the burden of proof. Even though all the respondents are agreed that the burden of proof lies on the petitioner/appellant, this position is diametrically opposite to the position of the appellant. The established position of the law is that the burden of proof lies upon that party who affirms and not upon him who denies. This was the holding of this Court in the case of ONOSIGHO V GLOBACOM LTD & ANOR (2016) LPELR-40496 (CA) which relied and followed the decision of the Supreme Court in the case of ELIAS V OMO-BARE (1982) 5 SC. See also the more recent case of ILIYA & ANOR V LAMU & ANOR (2019) LPELR-47048 (CA). The Supreme Court expounded this principle further in the case of SAKATI V BAKO & ANOR (2015) 14 NWLR PT 1480, 531 where it held that the burden rests on the party who would fall if no evidence at all or no more evidence was led on either side. See also the more recent Supreme Court case of ANDREW V INEC (2018) 9 NWLR PT 1625, 507 AT 581 as cited by the learned counsel to 2nd, 3rd & 6th respondents. PER MAHMOUD, J.C.A.

RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Akure Judicial Division, sitting in Akure delivered by Hon. Justice A. Dogo (J), on the 21st day of June, 2019 in Suit No. FHC/AK/CS/100/2018 wherein he dismissed the suit for being statute barred and failure of the Plaintiff now Appellant to prove his claim before the Court.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal dated 1st of July, 2019 and filed the same date containing Six (6) grounds of appeal with supporting particulars.

INTRODUCTION AND FACTS OF THE CASE
The appellant commenced this suit at the Federal High Court, Akure Judicial Division, Ondo State by a Writ of Summons filed on the 24th December, 2018. The said Writ of Summons was accompanied with a Statement of Claim. Written deposition on Oath of the appellants witnesses and copies of documents to be relied upon at the trial in line with the Rules of the Court.

In the said Writ of Summons and Statement of Claim; the appellant sought the following reliefs:
1. A DECLARATION that the

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subversion of the Electoral Guideline of the All Progressive Congress as stipulated in its Constitution by the Party machinery in Ondo State in respect of the House of Representative Primaries. Which was supposed to be conducted on the 15th of October, 2018 in the plaintiff Federal Constituency, Akoko South East/Akoko South West but was never done therefore resulting in their failure to give the plaintiffs opportunity of being voted for by the members of the party as enshrined in the Constitution of the Federal Republic of Nigeria, 1990 as amended and APC party constitution October, 2014 as amended, IS ILLEGAL, INVALID, UNCONSTITUTIONAL, NULL AND VOID.
2. A DECLARATION that the hand picking of preferred candidates without conducting any primary election in any of the wards in the Plaintiff Federal Constituency, Akoko South East/Akoko South West Ondo State with non presence at all of any officials of the Independent National Electoral Commission and members of the National/State Electoral Committee of the party amounting to pre-arranged choice of candidates is illegal, contrary to the Electoral guideline of the All Progressive Congress as contained in the

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Constitution of the All Progressive Congress party October 2014 as amended and the express provisions of the Electoral Act 2010, as amended in 2015.
3. A DECLARATION that any attempt by the National Electoral Committee of the party in forwarding any name of arbitrarily and capriciously chosen candidates to the National Executive Committee of the Party for onward transmission of the purported lists of the ill chosen candidates to the 5th Defendant is illegal, unlawful, invalid, irregular and gross violation of the Electoral Act 2010 as amended in 2015 and contrary to the Electoral guideline of the All Progressives Congress as contained in the Constitution of the All Progressive Congress party October 2014 as amended.
4. AN ORDER voiding the act of ignominious and illegal hand picking of proffered candidates without conducting any primary election at all into the House of Representatives in the Plaintiff Federal Constituency. Akoko South East/Akoko South West Ondo State.
5. AN ORDER voiding and nullifying any list of candidates that may emerge from non-conduct of primary election into House of Representative in the Plaintiff Federal Constituency,

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Akoko South East /Akoko South West Ondo State.
6. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st, 4th Defendants from sending any list of concoted candidates resulting from non-conduct of the election in any of the wards in the Plaintiff Federal Constituency, Akoko South East/Akoko South West Ondo State to the 5th Defendant under any guise whatsoever, for the 2019 House of Representative election, pending on the determination of this case.
7. AN ORDER OF PERPETUAL INJUNCTION restraining the 5th Defendant either by itself or by its agents and officers from receiving or giving effect in whatsoever manner of any list at all Progressive Congress headed by the 2nd Defendant resulting from non-conduct of any primary election in the Plaintiff Federal Constituency, Akoko South East/Akoko South West Ondo State under any guise whatsoever, for the 2019 House of Representative election, pending on the determination of this case.
8. AN ORDER OF PERPETUAL INJUNCTION restraining the 6th Defendant from parading himself or being paraded by the 1st, 2nd, 3rd and 4th Defendants as the candidate of the All Progressive Party in the Plaintiff Federal

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Constituency, Akoko South East/Akoko South West Ondo State for the 2019 House of Representative Election under guise whatsoever pending on the determination of this case.
9. AN ORDER directing APC to forward the Plaintiff name to the 5th Defendant as the party flag bearer for the House of Representative candidate Akoko South East/Akoko South West Federal Constituency in Ondo State.
a) According to the party rules and regulation as stipulated in the party constitution October 2014 as amended, ARTICLE 20 (V) since the party gave the Returning senate ticket candidate automatically to Akoko South West.
b) According to already zoning arrangement a gentle man arrangement and understanding made between the affected two local governments, Akoko South East and Akoko South West 2007 to 2015 Akoko South East 2015 to 2023.

Upon the receipt of the originating process; the respondents entered appearances, filed preliminary objection to the competence of the suit on a number of grounds as well as filed their Statement of Defence.

In line with the provision of the Electoral Act; the learned Judge heard the preliminary objections and deferred the

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ruling on same to judgment stage while the substantive suit was heard on the merit.
Parties called their respective witnesses and written addresses were ordered by the trial Judge after which the suit was adjourned for judgment

On or about the 21st June, 2019; the learned trial Judge delivered judgment in this suit wherein he held that the suit was statute barred and that the appellant did not prove his case on the merit.

Being dissatisfied with the judgment of the learned trial Judge; the appellant filed a Notice of Appeal dated the 1st day of July, 2019 and filed the same day.

In compliance with the Rules of Court, the record of appeal was compiled and transmitted to this Court on the 30th of July, 2019 which was deemed properly filed and served on the 22nd day of August, 2019 with the leave of Court. Parties filed and exchanged Briefs of Argument also with the leave of Court sought and granted on the 23rd of August, 2019.

The appeal proceeded to hearing having been ripe to that effect and was heard on the same date of 23rd August, 2019 with the consent of parties.

O. O. Ayenakin Esq. appeared for the Appellant, with him

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Dare-Daniels and O. A. Ajayi Esq.; B. A. Aderosin Esq. appeared for the 1st and 4th Respondents, with him H. I. Akingbesote Esq., Chief A. O. Ajana Esq. appeared for the 2nd, 3rd and 6th Respondents, with him Afe Felix, Yinka Ogunoye and Victor Nna Esq.; A. F. Lawal Esq. appeared for the 5th Respondent, with him O. O. Adewole (Mrs.) Esq.

O. O. Ayenakin identified the Appellants Amended Brief of Argument settled by him filed on 23rd August, 2019, adopted same as their final argument for the appeal and urged the Court to allow the appeal and also set aside the decision of the trial Court. The said brief contains four (4) issues formulated by the Appellant for the determination of the appeal as follows:
1. Whether the learned trial judge was right when he held that the appellants suit was statute barred. (Ground 1 and 2).
2. Whether the learned trial judge was right when he held that Exhibits D59 and D60 are admissible when same have been tendered earlier in the suit and were rejected by the Court, and as such inadmissible (Ground 3).
3. Whether the learned trial judge was right when he held that the appellant did not discharge

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the onus on him and as such did not prove his case and this has occasioned a miscarriage of justice (Grounds 4 and 5).
4. Whether the learned trial judge was right when he dismissed the case of the appellant in its entirety when the said decision was against the evidence before the Court (Ground 6).

B. A. Aderosin identified the 1st and 4th Respondents Brief of Argument settled by him, filed on 23rd August, 2019, adopted same and urged us to dismiss the appeal as lacking on merit. The brief contains two (2) issues for determination, they are:
1. WHETHER THE HONOURABLE TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE CASE OF THE PLAINTIFF/APPELLANT IS STATUTE BARRED?
2. WHETHER THE CAUSE OF ACTION IN THIS MATTER AROSE ON THE 5TH DAY OF OCTOBER 2018?

Chief A. O. Ajana identified the 2nd, 3rd and 6th Respondents Brief of Argument settled by him, filed on 23rd August, 2019 adopted same and urged the Court to dismiss the appeal. In it, he distilled three (3) issues from the grounds of appeal, thus:
1. Whether the trial Federal High Court was not right in holding that the Appellants suit was statute barred and

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that the Court was without jurisdiction to entertain the same. (Derived from Grounds 1 and 2 of the Grounds of Appeal).
2. Whether the Learned Trial Judge rightly admitted as Exhibit D60 Original copy of the Report of the Election Committee which the Appellant also tendered as Exhibit P10 as well as Exhibit D59, the Carbon Copy of Constituency Result, respectively, when both were tendered by the 3rd and 6th Respondents after photocopies of the same documents tendered by the 1st and 2nd Respondents were rejected (couched from Ground 3 of the Grounds of Appeal).
3. Whether the Learned Trial Judge was in error in holding that the Appellant failed woefully to prove his claim that the primary election of the 1st Respondent fixed for October 5, 2018 for the nomination of 1st Respondents candidate for Akoko South East/Akoko South West Federal Constituency was not conducted. (Derived from Grounds 4, 5 and 6 of the Grounds of Appeal).

A. F. Lawal identified the 5th Respondents Brief of Argument settled by him, filed on 23rd August 2019, adopted same and urged us to dismiss the appeal and to affirm the decision of the trial Court. Three (3)

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issues for determination are stated in the brief to writ:
1. Whether the trial Federal High Court was not right in holding that the Appellants suit was statute barred and that the Court was without jurisdiction to entertain the same. (Derived from Ground 1 of the Grounds of Appeal).
2. Whether the Learned Trial Judge rightly admitted as Exhibit D60 Original copy of the Report of the Election Committee which the Appellant also tendered as Exhibit P10 as well as Exhibit D59, the Carbon Copy of Constituency Result, respectively, when both were tendered by the 3rd and 6th Respondents after photocopies of the same documents tendered by the 1st and 2nd Respondents were rejected (couched from Ground 2 of the Grounds of Appeal).
3. Whether the Learned Trial Judge was in error in holding that the Appellant failed woefully to prove his claim that the primary election of the 1st Respondent fixed for the 5th day of October, 2018 for the nomination of 1st Respondents candidate for Akoko South East/Akoko South West Federal House of Representatives Constituency was not conducted. (Derived from Grounds 3, 4, and 5 of the Grounds of Appeal).

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The issues as formulated by the parties in this appeal have biars to the determination of the appeal even though couched differently for the convenience of the individual brief. I found no fault with the issues distilled by the Appellant from the grounds of appeal in the Notice of Appeal. Therefore, elect to treat and consider the Appellants issues being the owner of this appeal.

ARGUMENTS ON ISSUES
ISSUE ONE
In arguing this issue, the learned counsel for the Appellant stated that the grouse of the Appellant as enunciated in his statement of claim and Writ of Summons is that the 1st Respondent fixed 5th October, 2018 for the Primary Election into the Akoko South East/Akoko South West Federal Constituency for the 2019 General Election but that the election did not hold as scheduled. He stated further that the 1st Respondent called a meeting of all stakeholders on the 10th December, 2018 where the 6th Respondent was handpicked or anointed as the candidate of the 1st Respondent for the said General Election contrary to the provision of the Electoral Act and the constitution of the 1st Respondent.

It is his contention that what determines

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the jurisdictional competence of a Court to entertain a matter is the subject matter of the suit as encapsulated in the claim before the Court. Also what the Court considers in ascertaining whether it has jurisdiction over a matter and whether a suit is statute barred is the Writ of Summons and the statement of claim filed in the Court. Cited TUKUR V. GOVERNOR OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517.

Similarly, the general position of law is that in ascertaining when the cause of action in a suit accrues, the Court is enjoined to examine the Writ of Summons and statement of claim to determine when the cause of action actually accrued. Referred to the cases of AJAYI V. MILITARY ADMINISTRATOR (1997) 5 NWLR (PT. 504) 1237 and OLAGUNJU V. YAHAYA (1998) 3 NWLR (PT. 542) 501 AT 512.

He stated that where it is not crystal clear to the Court from the examination of the Writ of Summons and statement of claim when the cause of action arose, the Court is enjoined to look at all the pleadings before it holistically as well as evidence in order to ascertain when the cause of action arose. Relied on the case of NDIC V. UMANAH (2005) 4 FWLR (PT. 292) 1994.<br< p=””>

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Counsel submitted that a holistic look or examination of the pleadings of the parties in this suit reveals that the cause of action did not arise on 5th October, 2018 when the primary election did not hold but on the 10th December, 2018 when the 1st Respondent presented or nominated or handpicked the 6th Respondent as its candidate and announced same. That cause of action is said to have accrued when there is a person who can sue and a person who can defend. Cited FADARE & ORS. V. ATTORNEY. GENERAL OF OYO STATE (1982) 13 NSCC 52 AT 56.

That no reason was given for not holding the primary election on 5th October, 2018 by the 1st Respondent. It was on the 10th December, 2018 when the 6th Respondent was presented that the Appellant knew that the 1st Respondent would not hold any primary election for the disputed election and that it was at this point the cause of action arose. He submitted that if the Appellant had sued by the 5th October, 2018 event, the suit will be premature. Relied on the case of EMIATOR V. NIGERIAN ARMY (1999) 12 NWLR (PT. 631) 362-370.

Learned counsel contended that the conclusion of the learned trial Judge that the

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contention of the Appellant that the cause of action arose on the 10th December, 2018 is an after-thought is erroneous having regard to the evidence of the Appellant before the Court.

He submitted that the cause of action in the suit arose on the 10th December, 2018 and that the suit of the Appellant was brought within time and it is not statute barred.
In conclusion, O. O. Ayenakin Esq. urged the Court to resolve this issue one in favour of the Appellant.

In response to the Appellants argument on issue one, the learned counsel to the 1st and 4th Respondents contended that the Appellants Writ of Summons and statement of claim were not filed in tandem with the provision of the law, which is S.285(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Fourth Alteration, No. 21 Act, 2017. It states: Notwithstanding anything to the contrary in this constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.

That the provision made it mandatory for a pre-election matter to commence within

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14 days the action arises. He said that it is not in dispute that the Writ of Summons which commenced the matter was filed on 24th December, 2018 outside the statutory period of 14 days provided by S. 285(9) (supra). He further said that it would be absurd if the Appellant should proceed and rely on the outcome of a Reconciliatory committee before filing his process, as the prescribed period of filing such process has elapsed by effusion of time.

Counsel submitted that it is trite, jurisdiction of the Court should be examined, not when it is invoked but when the cause of action arose. The law is sacrosanct that it is the claim of the claimant which determines jurisdiction of the Court. Referred to OKOROCHA V. UBA PLC (2011) 1 NWLR (PT. 1228) 348 @ 373 PARA. E and IBAFON CO. LTD V. NIGERIA PORT PLC (2000) 8 NWLR (PT. 667) 86 @ 100 PARAS. A-B.

That Appellants evidence is in tandem with the 1st and 4th Respondents position that 5th October, 2018 was the day scheduled for the primary election. The area of contention between the Appellant and the Respondents is whether the primary election was conducted for or not on 5th October, 2018 for

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which the burden lies on the Appellant to discharge with cogent and credible evidence.

Counsel opined that argument of the Appellant at the trial Court that time did not run when a Reconciliatory Committee was meddling on the matter is a summersault in law and such cannot stand. Negotiation for the purposes of settlement of dispute does not prevent or stop the period of limitation from running. Referred to the case of AGRICULTURAL & RURAL MANAGEMENT TRAINING INSTITUTE (ARMTI) V. BAYERE (2003) FWLR (PT. 155) 649 @ 662 PARAS. C-E.

That no negotiation or settlement can stampede the provision of the constitution, where such is not based on misrepresentation or fraud. The Appellant throughout his case has not told the Court that he was misled or misrepresented.

Counsel submitted that where a law prescribed a period for instituting an action, it cannot be instituted after that period. Relied on PHCN V. ALABI (2010) 5 NWLR (PT. 1186) 65 @ 83 PARA. H.

That all through the proceedings, the Appellant did not raise any exceptional condition to warrant the cause of action to extend beyond 5th October, 2018. If a claimant sleeps, he cannot suddenly

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wake up as he is caught by the statute of limitations. Referred to the cases ofMERCHANTILE BANK (NIG.) LTD V. FETECO (NIG.) LTD (1998) 3 NWLR (PT. 540) 143 @ 156-157 PARAS. G-B; NASIR V. CIVIL SERVICE COMMISSION, KANO STATE (2010) 6 NWLR (PT. 1190) 253 @ 271 PARA. A.

Learned counsel referred to relief 9 of the Appellants statement of claim at para. 26, viz:
An order directing APC to forward the Plaintiffs name to the 5th Defendant as the party flag bearer for the House of Representatives candidate for Akoko South East/Akoko South West Federal Constituency in Ondo State.
Referred also to S. 285(13) of CFRN, 1999 (4th Alteration) to writ:
An Election Tribunal or Court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election.

He contended that the Appellant claimed that the primary election did not hold at all, while Respondents stand is that the primary election was held and that the Appellant failed to participate in the primary election.
That by every implication, Relief 9 at paragraph 26 of the

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statement of claim grossly violates S. 285(13) (supra) and counsel urged us to so hold.

That the Appellant who claimed that the primary election in dispute did not hold, now is claiming by his Relief 9 that he should be returned as the party flag bearer. Counsel said that by the position of S.285(13) (supra) the Appellants relief 9 should fail and urged us to so hold.
B. A. Aderosin concluded by urging this Court to hold that the lower Court was right to have held that the case of the Appellant is statute barred.

In their response on issue one the 2nd, 3rd and 6th Respondents argued through their counsel by reference to the case of TEXACO PANAMA INCORPORATION V. S. D. P. C. NIG. LTD. (2002) FWLR (PT. 96) 579 on definition of statute of limitation. Also referred to ELABANJO V. DAWODU (2006) ALL FWLR (PT. 326) 604 SC and JOHN SHOY INTERNATIONAL LTD V. FED. HOUSING AUTHORITY (2016) 14 NWLR (PT. 1533) 427 @ 453 PARAS. B-C on what will constitute a statute barred by way of examination of the Writ of Summons and/or statement of claim.

Learned counsel contended that the purported meeting of 10th December, 2018 at Ado Ekiti which was not in

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the Writ of Summons and was not pleaded by the Appellant in his statement of claim cannot be taken into consideration in deciding on limitation time.

Notwithstanding, counsel drew the attention of this Court to the evidence of PW5 and DW6 at pages 489 and 552 respectively in the record of appeal. He submitted that from the evidence it shows that the disputing primary election was held on the 5th October, 2018 and Appellant had a cause of action on that day to challenge the alleged non-holding as claimed by him. That the 6th respondent won the primary election and his name was forwarded amongst others to the 5th Respondent on 18th October, 2018 long before the alleged 10th December, 2018 meeting.

Counsel contended that the said primary election complained of in this suit took place on 5th October, 2018. He referred to Relief 1 sought by the Plaintiff/Appellant and paras. 8, 10, 13, 15, 19, 22 and 23 of the statement of claim (at pages 1-9 of the Record of Appeal) show clearly that the subject matter of the Appellants suit is the 1st Respondents primary election scheduled for 5th October, 2018. That the Appellant after participating and

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losing the ticket to the 6th Respondent turned round to claim that the primary election did not hold and that no candidate emerged therefrom.
That it is very clear by paras. 19, 22 and 23 of the statement of claim (page 4 of the Record of Appeal) the Appellants cause of Action arose on the 5th October, 2018.

He said indeed in his evidence, Appellant as PW1 made it clear at page 455 of the record of appeal that he instituted the suit because of the failure to conduct the said House of Representative Primary Election. Reference also made to his (PW1) evidence at page 458 of the record where he said that he filed the suit on 24th December, 2018 because he was not satisfied that the primary was not conducted. Further stated that it is correct to say grievance on non conduct of primary election started either on 4th or 5th (page 458 of the record of appeal).

Learned counsel contended that by the Appellants Counter-Affidavit filed on 14th March, 2018 in response to the 3rd and 6th Respondents motion, Appellant annexed as part of Exhibit D, part of 6th Respondents INEC Form CF001 showing that the form was submitted to INEC

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on 18th October, 2018.

However, rather than commencing a suit to ventilate his alleged cause of action, Appellant allegedly wrote a petition Exhibit P5 (contained at pages 61, 65 of the record of appeal) to the 2nd Respondent. Even after knowing that none of the receivers of his letters attended to same (para. 22 of the statement of claim), Appellant went to sleep until 24th December, 2018 when he instituted this action; 79 days after the cause of action arose on 5th October, 2018. That when he commenced this action, he was already deeply caught in the mesh of S. 285(9) (supra).

Counsel submitted that the time fixed by the constitution for the doing of anything cannot be extended; it is immutable, fixed like the rock of Gibraltar. It cannot be enlarged, expanded or stretched beyond what it states. Referred to MARWA V. NYAKO & ORS. (2012) 6 NWLR (PT. 1269) 1999 and OMISORE V. AREGBESOLA & ORS. (2015) 15 NWLR (PT. 1482) 228 @ 285 PARAS E-F.

That clearly from the facts of this case, the action was not commenced within 14 days of the conduct of the primary election complained of. It became barred at the expiration of the 14

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days prescribed under S. 285(9) of the CFRN, 1999 (as amended).This goes to the jurisdiction of the Court as the Court is divested of the vires to entertain the claim.

Learned counsel contended that the meeting at Ado-Ekiti was not convened for nomination of candidate. That in the Appellants Counter Affidavit to the 1st and 2nd Respondents Preliminary Objection (page 203 of the record of appeal), the Appellant attached the invitation/Notice of Ado-Ekiti meeting (pages 217 of the record), it contained the terms of reference for the meeting which did not include nomination of any candidate, particularly the 6th Respondent. It was a reconciliation meeting by the APC South West National Peace and Reconciliation Committee.

Counsel referred to Appellants letter of 9th October, 2018 to the 2nd Respondent (page 61 of the record of appeal), wherein he at para.1 stated thus: I write to register my displeasure, dissociation and total rejection to the purported conduct of our great partys primary election for nomination of candidate into House of Representatives representing Akoko South East/South West Federal

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Constituency. That it is obvious from the said letter that 6th Respondent had been nominated on 5th October, 2018.

Reference was also made to Affidavit in Support of INEC 5th Respondents Notice of Preliminary objection at pages 184 to 185 of the record of appeal that confirmed the 1st Respondents primary election for Akoko South East/South West held on the 5th October, 2018.

Reference made also to paras. 16 and 17 of the 6th Respondents Statement of Defence (pages 94-98 of the record) and paras. 12 and 13 of his Written Statement on Oath (pages 102-106 of record) unchallenged that his name was submitted to 5th Respondent (INEC) on the 18th of October, 2018 and that the 5th Respondent published same on 25th day of October, 2018 in accordance with the provision of S. 31(1) and (3) of the Electoral Act, 2010 (as amended).

Referred further to the 6th Respondents INEC Form CF001 submitted to INEC filed by the Appellant and 5th Respondent respectively at pages 194, 202 and 222 of the record. That the lower part of same shows INEC stamp indicating its receipt on 18th October, 2018.

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Chief A. O. Ajana Esq. submitted that the trial Court was without jurisdiction by reason of the action being statute barred based on the argument proffered. He in conclusion urged the Court to resolve this issue in favour of the Respondents and uphold the decision of the trial Court that the suit was statute barred.

Responding on this issue one, the learned counsel to the 5th Respondent argued in the same pattern and tune with the argument of the 2nd, 3rd and 6th Respondents in their brief of argument. He lifted the submissions of the learned counsel to the 2nd, 3rd and 6th Respondent verbatim and seriatim by way of recapitulation.

In avoidance of repetition and making this judgment to sound monotonous, I consider the arguments as collaborative efforts of different parties for the purpose of achieving same or similar result either in favour or against.
In conclusion, A. F. Lawal Esq. urge this Court to resolve issue one (1) in favour of the Respondents.

RESOLUTION OF ISSUE ONE (1)
The decision that gave birth to this appeal was delivered on the 21st of June, 2019 by Hon. Justice A. Dogo of the Federal High Court, Akure Judicial Division. The appeal was filed

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at the Registry of the trial Court on the 1st day of July, 2019 within time, and the record of appeal was compiled and transmitted to the Registry of the Court of Appeal, Akure Division on the 30th June, 2019 also within time.

Two Notices of Appeal of the same content are contained in the record of appeal at pages 598-603 and 606 610 respectively. Both contain six grounds of appeal with supporting particulars but none contain the reliefs sought from the Court of Appeal.

In order to refresh our minds, there is the need to recapture the ISSUE under reference as couched by the Appellant in paragraph 3.1 of the Appellants Amended Brief of Argument, thus:
Whether the learned trial Judge was right when he held that the Appellants suit was statute barred.
(distilled from Grounds 1 and 2)

In consideration of this ISSUE ONE, I painstakingly perused the Record of Appeal as transmitted to this Court with particular interest to the judgment of the trial Court appealed against contained at pages 562- 597 of the Record of Appeal.

By the afforestated ISSUE ONE, the Appellant is dissatisfied with the decision of the

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learned trial Judge in holding that Suit No. FHC/AK/CS/2018 is statute barred.

The community reading of the parties briefs of argument disclose that all the parties in this appeal are ad idem that in order to determine whether the Plaintiff and now Appellants suit is statute barred or not, the Court is to look at the Writ of Summons and Statement of Claim to ascertain when the cause of action arose and when the Plaintiff/Appellants suit was filed.
Looking at the Writ of Summons and Statement of Claim, it is not in dispute that the 1st Respondent fixed the 5th October, 2018 for the conduct of its primary election into the Akoko South East/South West Federal Constituency for the 2019 General Election. The disputed area is the non-holding of the said primary on the stated date of 5th October, 2018 and on this the Appellant and all the Respondents are in parallel positions.
The Appellants position is that the 1st Respondent (All Progressive Congress APC) called a meeting of all stakeholders on the 10th December, 2018 wherein the 6th Respondent (Mr. Adeogun) was handpicked or anointed as the candidate

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of the 1st Respondent for the 2019 General Election into Akoko South East/Akoko South West Federal Constituency contrary to the provision of the Electoral Act and the constitution of the 1st Respondent. He claimed that the cause of action arose on the 10th December, 2018 when he became aware of the 1st Respondents action of handpicking or anointing the 6th Respondent as its candidate. All the Respondents argued against that perception and unanimously contended that the cause of action arose on 5th October, 2018, the date fixed by the 1st Respondent for the conduct of the said primary election.
Parties are all in unity as to the date of 24th December, 2018 when the Appellant commenced this action by his Writ of Summons filed along with the statement of claim.
I have carefully examined the Writ of Summons and the statement of claim endorsed on the 24th December, 2018 and referred to the provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017, thus:
Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than

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14 days from the date of the occurrence of the event, decision or action complained of in the suit. Undoubtedly, the instant case is a pre-election matter within the meaning of S.285(9) (supra) and therefore bound by the mandatory provision for the commencement of the action within 14 days from the date of occurrence of the event complained of in the suit. The question that requires an answer is whether the accrued date of the cause of action is 5th October, 2018 fixed and announced for the primary election or 10th December, for the Reconciliatory meeting.
He who asserts must prove that those facts exist. See Section 131(1) and (2) of the Evidence Act, 2011 (as amended).
I have already stated in this judgment that the date of 5th October, 2018 fixed by the 1st Respondent for the holding of the said primary election is not in dispute, as such requires no proof. Now the contested date is 10th December, 2018 claimed the Appellant by his assertion. The burden of proof is on him in accordance with the provision of S. 136(1) of the Evidence Act, 2011.
There is nothing to show that the contested date of 10th December, 2018 was pleaded

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in the statement of claim neither contain in the Writ of Summons. Instead the Appellant made effort to introduce the issue of the said date when PW5 at page 489 of the Record of Appeal answered in the affirmative during cross-examination that the meeting of 10th December, 2018 was to plead with Aspirants to stop protesting the party not picking them as her candidates.
Throughout the length and breadth of the record of appeal either by way of pleadings and/or evidence there is nothing in proof of the claimed date of 10th December, 2018 as the date of cause of action in this suit.
On the issue of the alleged non-conduct of the primary election as fixed on the 5th October, 2018 by the 1st Respondent, the Appellant as PW1 in the course of cross-examination at pages 455 and 458 of the record of appeal admitted that his grievance of non-conduct of primary election started either on 4th or 5th and resulted in the institution of this action filed on 24th December, 2018.
Notwithstanding the date of grievance, Appellant chose to write a petition on the 9th October, 2018 to the 2nd Respondent in lieu of commencing an action by way of suit to

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ventilate his cause of action of the alleged non-conduct of the primary election on the scheduled date of 5th October, 2018.
Appellant slept over his right of action for too long between the 5th October, 2018 when he became aware of the alleged failure to hold the primary election and 24th December, 2018 when he woke up from his deliberate slumber. Regrettably, he had only 14 days by virtue of S. 285(9) (supra) which is fixed like the Rock of Gibraltar. See the case of MARWA & ORS V. NYAKO & ORS (SUPRA) where it was held as follows: that if what is to be done within the time so fixed, it lapses the Court is thereby robbed of the jurisdiction to continue to entertain the matter.
See also ANPP V. GONI (2012) 7 NWLR (PT. 1298) 147 @ 182; PDP V. CPC (2011) 17 NWLR (PT. 1277) 485 @ 508 and OMISORE V. AREGBESOLA & ORS (SUPRA) wherein the Supreme Court gave a rationale for the rigidity of such provision when it held that:
This must be so because the time lines therein are sacrosanct due to the peculiar matters which are time bound.
What more? It is trite law that in pre-election matters or

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matters under Section 87(9) of the Electoral Act, 2010 (as amended, 2015) an aggrieved Aspirant is not bound to first resort to the internal dispute resolution mechanism of his Political Party before approaching the Court to seek remedy. This is because S. 87(9) (supra) is not subject to the Constitution and Electoral Guidelines of any political party. See the cases of PDP V. NGUROJE & ORS (2012) LPELR 20859 (CA) 67-73, PARAS. A-C and APC & ORS V. KARFI & ORS (2015) LPELR 41857 (CA) 33-34, PARAS. D-C.
It is trite law that negotiation between parties does not prevent time from running for purposes of limitation of time for filing an action. See L.G.S.C. EKITI STATE V. BAMISAYE (2016) 8 NWLR (PT. 1514) 373 @ 380 PARAS. B-D. and SENATOR AYOGU EZE & ORS V. BARR. GEORGE OGARA & ANOR (2019) LPELR 47131 (CA) 28-33 PARA. D.
I wonder why the same Appellant who claimed that the primary election of the 1st Respondent never took place on the scheduled date of 5th October, 2018 somersaulted to seek for Relief 9 of paragraph 26 of the statement of claim filed alongside the Writ of Summons on the 24th day of December, 2018. That is for:

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An order directing APC to forward the Plaintiffs name to the 5th Defendant as the party flag bearer for the House of Representatives candidate for Akoko South East/South West Federal Constituency.
This relief 9 (supra) is in violation of S. 285(13) of 1999 CFRN (Fourth Alteration No. 21) Act, 2017 which provides thus:
An Election Tribunal or Court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election.
The said relief 9 of paragraph 26 of the statement of claim is tantamount to an act of talking from both sides of the mouth. In other words, an act of blowing hot and cold at the same time. This is a Court of Justice and Equity which will not allow a pick and choose disposition to set a bad precedent.
By virtue of S. 285(9) (supra) and from the clear facts of this case, it has no bearing and its already dead on arrival which robbed the jurisdiction of the trial Court to entertain the matter. See ALL PROGRESSIVE GRAND ALLIANCE V. DR. OKEY CHIDOLUE & ORS (2019) LPELR 47160 (CA) 12-14, PARAS. B-D.

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Having held that the jurisdiction of the trial Court has been ousted by the provision of S. 285(9) of (4th Alteration) CFRN, 1999 all other issues raised in this appeal have become an academic exercise and of no moment. This is in line with the decision inSENATOR A. EZE V. BARR. GEORGE OGARA (SUPRA).
Flowing from the above enunciation, the trial Court was right by its holding that the suit was Statute Barred. The appeal is bereft of merit and hereby dismissed.
No costs awarded.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the leading judgment in this appeal as articulated by my learned brother Ridwan Maiwada Abdullahi, JCA that the appeal be dismissed.

I align with the trend of thought and the grounds upon which they are founded in their entirety for the conclusion reached.

The Appellant, herein, by his writ summons and statement of claim dated and filed on the 24 -12- 2018 had made sundry averments and claimed the sundry reliefs stated in the statement of claim.

In the paragraph 9 thereof, he had claimed as follows:
An order directing APC to forward the plaintiff

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name to the 5th Defendant as the party flag bearer for the House of Representatives candidates for Akoko South East/Akoko South West Federal Constituency in Ondo State.
a. Accordingly to the party Rules and Regulation as stipulated in the party constitution, 2014, as amended, Article 20 (v) since the party gave the Returning Senate Ticket Candidate automatically to Akoko South West
b. According to already zoning arrangement a gentle man arrangement and understanding made between the affected two Local Governments Akoko South East and Akoko South West of 8 Years each. Akoko South East 1999 to 2007 Akoko South West 2007- 2015 Akoko South East 2015- 2018.

From the pleadings aforesaid, it is crystal clear that the Appellants real grouse and reason for claiming that there was no primary election in violation of the party guidelines of his party and INEC Regulations and Rules is because of the non adherence to the gentlemans arrangement and understating between the two Local Government Areas of Akoko South West and South East in the sharing of the Tenures of candidates for the said Election into the House of

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Representatives.
Even if this were a justiciable issue and a legal right, (which is not), is it not preposterous, contradictory and curious that the Appellant would urge in his relief for an order on his party Directing APC his party to forward his name to the 5th Defendant, now 5th Respondent (INEC) as the partys candidate for Akoko South East/Akoko South West Federal constituency in Ondo State. Does that not rather suggest that the order was based on the result of a primary Election where in the Appellant had won and thus nominated?
It is either that there was an election and nomination of the Appellant made and a refusal to forward his name as required by law had taken place or that it was a strange/bizarre request for an un-earned order of Court.
Be that as it may, since the trial Court did not strike out the suit for non disclosure of an actionable cause of action, based on the writ and statement of claim nor did it consider whether the reliefs sought were speculative as they were essentially based on quiaitement scenarios, that is, anticipatory because I fear and would have to act in anticipation and upon

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assumption of possibilities, I shall however, endeavour to consider the merit of the Appeal. From the Appellants Amended Brief of Argument, the issue one on whether the action was statute barred by virtue of Section 285(9) of the 4th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 as Amended, which obligates that pre election matters shall be filed within a period of 14 days from the date of the event, action or decision complained about, settles and answers itself in the negative against the Appellant to the effect that he had been in default.
The 10th December, 2018, said by the Appellant to be the date of the cause of action because it was on that date that the 1st Respondent presented and announced as well as handpicked the 6th Respondent as its candidate for the disputed election. That the Appellant knew that the 1st Respondent would not hold any primary election for the disputed election. That it was at that point that the cause of action arose. That it was at that point that a right of action arose. cannot be correct.
Indeed, the 5th October 2018, was fixed for the primary election as averred and

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as stated by the Appellant in evidence. He had testified that arrangements in materials and men had been made and was nonetheless aborted.
Strangely, he had also testified that the election was also to be on the 4th October and it was from that date that it was postponed to the 5th of October 2018! Which he said was aborted or not to be.
Granted that the cause of action arose on 10th December, 2018, it will be within the mandatorily stipulated 14 days period within which to bring the action.
Computing 14 days within means that the date of the event and the last date limited are reckoned with and are inclusive of the days relevant. Between 10th and 24th of December would not have been more than 14 days within the extremes calculated for the purpose of computation of time.
However, this window is not opened to the Appellant because the alleged handpicking of the Appellant on that date was not shown to be at an event slated as the primary of the 1st Respondent for that purpose; as it is only an act, decision or event recognized by the Electoral Act for the purpose of the nomination of a partys candidate that shall be reckoned as an

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event under the law from which a cause of action can arise.
There was therefore no justiciable cause of action under the Electoral Act, 2010 as Amended from the alleged event of 10th December, 2018. In Emiator v. Nigeria Army (1999) 12 NWLR (pt 631) 362 at 269- 370 rightly cited by the Appellants learned counsel at page 9 paragraph 4.81 of the Appellants Brief of Argument thus:
In law, a cause of action is the entire set of facts or circumstances giving rise to an enforceable claim. It also includes all those things necessary to give right of action and every fact which is material to be proved to entitle the plaintiff to succeed.
The 10th December, 2018 purported meeting was not shown to be an exercise or event for the conduct of a primary election and with INEC official thereat as observer in attendance for that purpose as enjoined law, to confer it that legitimacy and legality in law as a meeting or Assembly for a Primary Election.
Even if it was a collegiate system of voting it had to be proved that at such purported exercise, there was a violation or non conduct thereof.

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Is it not appalling and to make heavy weather about the observation of the learned trial judge that it was an after thought when the Appellant as plaintiff insisted that the cause of action arose on the 10th December, 2018? Why did Appellant (or Appellants counsel) not contend that the cause of action arose on the 4th October 2018 when he said being the fixed date of the Primary Election, but it was not held?
He explained or volunteered the possible reasons for a postponement to the 5th October 2019 and yet did not believe that it held.
Clearly, he is estopped by his categorical admission in cross examination at the trial when he stated at page 458 of the record thus:
Q-so it is correct to say that you (sic) grievance of non conduct of Primary Election started either on 4th or 5th.
Aiyes,
Q: So it is correct to say that on that date if there was conduct of Primary Election you are restricted to your ward.
A: – No. There was no restriction of movement. And as an aspirant, I can go to other wards to see what is happing (sic).”
Clearly, the event that was the cause of the grievance was the alleged non holding

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of election on either the 4th or 5th October, 2018. The action ought be brought within 14 days from any of those two dates. If also aggrieved on the 10th December, 2018, it was a chain and continuation of the state of grievance that had not abated, may be exacerbated; but in law, the cause of action had already matured, and congealed into fruition!
The action was clearly instituted outside the ordained period allowed by law.
In the circumstance, it was statute barred and the trial Federal High Court never had the jurisdiction to entertain the suit which only duty was to strike it out, as he rightly did in his judgment.

What is more, the hotchpot of suit seeking an order forwarding the Appellants name to the 5th Defendant/5th Respondent as APCs candidate even without a primary election would amount to urging the Court to turn to a father Christmas dishing out remedies where none was proved as an entitlement.

It is patently clear from the evidence of the Plaintiffs/Appellants witnesses on Record that they did not help the Appellants case with their hearsay testimonies of the non holding

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of the primary election as alleged. They testified, based on the hearsay narration of what the agents told them. See PW2 on page 460 of the record. PW3 did not know all the INEC officials and therefore could not tell whether they were there during the conduct of primary election. PW2 could not read paragraph 2 of his statement on oath inspite admitting in cross examination that he deposed to same and inspite affirming that he read it before signing it. Even if the Act progressives Congress indicated was an error in typography or spelling, it was plain that witness knew nothing about the petition. PW4 was a supervisory Agent who relied on what an agent told him and that explains the inability to mention the wards by name to tally with their numbered identity given by him in his statement on oath adopted.

PW4 at page 4711 admitted that he was at the venue of the Primary Election on 5th October, 2018 but it did not hold and that the venue he meant was ward 2 where he belonged, and yet there are 26 wards in the constituency. That they were at ward 2 throughout.

This clearly, shows that there was primary election fixed for 5th October, 2018

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and the Appellant knew of it and his witnesses did not know the NWC or Electoral Members.

PW5 was also dissatisfied and aggrieved by the non conduct of the election on 5th October, 2018. He, in cross examination is categorical that the meeting of 10th December, 2018 was to plead with Aspirants to stop protesting the party not picking them as her candidates. See page 489 of the record of appeal. This clearly shows that that meeting of 10th December, 2018 was not for the conduct of a primary election and could not be a cause of action in law, under the Electoral Act! The evidence of PW5, in this respect contradicts the Appellants; and since a party must be consistent in its case, see Ajide v. Kelani (1985) 2 NWLR, this incongruity and conflicting evidence is against the plaintiff and strengthens the respondents argument against the event of 18th December, 2018 not being a primary election but that rather it was the 5th October, 2018.
That election had already taken place, so there should be no protest. It was a placatory meeting.

PW5 in cross examination also said the party officials came, but their identity was not the issue, but

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election. All the 6th and 7th and 8th witnesses of PW5 testified to the same effect of not being in other wards other than theirs; a minimal or no burden on the Respondents to prove the conduct of the election on that date of 5th October, 2018.

Issue 2 of the Appellant on the admissibility of Exhibits D59 and D60 would nonetheless not escape the trite position of the law that he that asserts must prove, and that the rejection of Exhibits D59 and D60 would not have altered the position. Accordingly, the admission of inadmissible evidence in the circumstance, where expunged, as sought, would not have conferred credibility to Appellants case not proved and which was after all instituted out of time, no miscarriage of justice would have been occasioned by the admission of Exhibits D59 and D60, therefore.
It is trite that, to ask merely the question whether a Court is right or wrong in admitting an inadmissible evidence does not constitute competent issue for determination, as an issue for determination, must raise the point or question of fact and or law and seek the legal consequence thereof to the stance of the Court as challenged.

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The admission of Exhibits D59 and D60 had not occasioned any miscarriage of justice.
Issue 2 is resolved in favour of the Respondents.

ISSUE 3
Whether the learned trial judge was right when he held that the appellant did not discharge the onus on him and as such did not prove his case and this has occasioned a miscarriage of justice: Section 136 of the Evidence Act, places the burden of proof on the plaintiff that asserts. See Progressive Action Congress v. INEC (2009) (pt 478), 271 Rule 12.
The Appellant turned the law on its head by arguing that he that asserted the negative had the burden of proof; he glossed over the oscillating burden of proof that tilts the burden on the asserter of the negative only after the claimant that asserts had led the satisfactory proof upon which he would succeed if no evidence in rebuttal came.
The plaintiff/Appellant is not relieved of the legal imperative of the burden to prove his case or assertion as made, as it is he who would lose if no evidence is led from either sides. Chemiron International Ltd v. Stabilini Visienali Ltd (2018) 17 NWLR (pt 1647) 62 @ 79; Andrew v. INEC (2018) 9 NWLR (pt 1625) 507 @

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551- 553; Section, 132 Evidence Act.
The strange argument that the respondent has the burden of proving his denial of the truth of the claim (which obligation to prove had not been discharged) is to contend that one may raise a claim by asserting for instance that X denied him the right to be a candidate without proving how and to expect X, who denies same to prove that he did not deny Y the claimed participation! Who will lose, if no evidence was led by either side is, certainly, Y and not X. The burden of proof is therefore on Y. Anything to the contrary is legal heresy in Nigeria and violates Section 131 and 132 Evidence Act.
The case of Ugwu v. Ararume (2007) 12 NWLR (pt 1048, 367, 511 par. A – F, inapplicably touted by the Appellants learned counsel, adds to the exercise of turning the law on its head, as the case is authority for the denial of a ticket to an aspirant who had been nominated by his party already; which by the ipsi dixit of the Appellant herein, he was not, though wanted to be so anointed having contributed much to the party and also in expected strict compliance to a gentlemens

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agreement on the presentation of candidates.
Not done, the Appellants submitted at page 15, paragraphs 6. 5- 6. 52 thus:
The Appellant as the plaintiff before the trial Court asserted that his contention in view of the evidence before the trial Court was that primary election of the 1st respondent did not hold as scheduled. Obviously, the case of the appellant at the trial Court was that primary election did not hold while the case of the respondents was that primary election took place. Therefore, the general position of the law that the plaintiff has the evidential burden to prove his case and that he who asserts a fact must prove the fact: would not suffice in this case: in that: in any proceeding, the party who asserts the negative is not under any obligation to prove anything in other words, inasmuch as the case of the appellant is predicated on the fact that the 1st respondent failed, refused or neglected to hold its primary election for the disputed position as stipulated and the said assertion is a negative one; the appellant is not obligated to prove anything other than the assertion made. I refer your lordship to the

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case of Ejiniyi v. Adio (1993) 7 NWLR (pt 305, at 330) where it was held thus:
A man cannot be expected to prove a negative assertion. The latin saying sums up the matter as follows: Ei incumesit probation, qui dicit, non qui negat: cum per nature in factum negates probito nullas sit- meaning- the proof lies upon him who affirms, not upon him who denies since by the nature of things he who denies a fact cannot produce any proof.
The implication of this: therefore, is that the burden of proof in any proceeding is not static thus, the appellant who has the initial burden, but having stated the negative; ipso facto: has the burden of proof shifted to the respondent who asserted the positive or affirmative position that primary election did hold. I refer your lordship to the case of: E. D. Tsokwa & Sons Company Ltd v. Union Bank of Nigeria Ltd (1996) 12SCNJ 445.
The assertion of the negative does not amount to proof and its satisfaction; the assertion of a negative does not shift any burden to the adversary; the adversarys evidence, even if unbelievable, does not aid the claimants unproved

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assertion. He had no evidential burden of proving a denial. Burden does not therefore oscillate to him. It remained static on Appellant, DW6 i.e 6th Respondent, who testified alongside DW7 that voting was by head count and not by balloting was said by the Appellants learned counsel to have testified in this wise in contradiction to DW5 who said it was a direct primary and that members queued behind the picture of their preferred candidate. Where is the contradiction?

Is queuing behind a preferred candidate, (a direct primary) not the same as head count? Will counting not be done of those on queue?
See the submission as reproduced below from pages 17-19 of the Brief-:
Issue 3 is resolved in favour of the Respondents and against the Appellant.

ISSUE 4
Upon the appraisal of evidence by the trial judge, he was right as I can glean from the evidence on the record that the trial Federal High Court Judge who shared no duty with either party came to the appropriate conclusion that Appellant had not proved its case.
There can be no claim founded upon a negative averment. A denial can be no claim.

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The Respondents were not making a claim for any remedy based on Exhibits D59 – D60 and therefore, their admission or rejection would confer no benefit of establishing any claims as none was made by them.
Rather it is the Appellant that would show that he had, prima facie, made out a claim for which he was entitled to a relief and that the rejection of the Exhibits was a weakness in the defendants case which strengthened his case. This is so, as a claimant succeeds on the strength of his case and not on the weakness of his opponents case.

The denial of the fact of voting in the circumstance, amounts to the assertion that the mode of voting testified to was not a permissible legal mode of voting.

It might have been a different scenario if the complaint were that voting by head count or Direct Primary as against indirect voting was not the permissible or agreed mode of voting or balloting but was allegedly done and the indirect balloting not complied with or may be balloting not done if agreed on. To then say, for such non compliance, there was therefore no voting or election or balloting, it may make some sense. This was,

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however, not the complaint at the trial Court.
This Court cannot create or erect a cause of action and proceed to resolve same.
It will be sacrilegious so to do. I dare not. Whatsoever is contra bonos mores, and against the law, the judex shall abhor, prohibit and punish.

The Appellants learned counsel appears pricked that the evidence of some respondents witnesses that accreditation was done for the election; when according to him, there was no pleadings to that effect thus making the evidence inadmissible, misses the point that a plea that election took place is all encompassing and does not require the pleading of the evidence of the various steps to be taken in an election as it will amount to pleading evidence, Samson Ojiako & Anr v. Obiawuchi Ewuru & 2 Ors (1995) 12 SCNJ 79 on Evidence led on any matter not pleaded going to no issue and ought to be disregarded as relied upon in argument, is inapplicable and does not erode the fact of primary election testified to and supplussagely too by the fact on accreditation. There was no contradiction on the mode of election nor inconsistency in favour of the unproved claim.

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If the Appellant had been nominated at the primary election, which he denied that it held, I would, no doubt, have agreed with him when his learned counsel contended that he was aggrieved by the hand picking or presentation of another person, as a candidate; for that would have been like a substitution of a candidate wrongfully.

Here, there was said not to have been a primary election! Why then complain of a purported presentation or handpicking of another person at a non Electoral Exercise where presentation of same to INEC from that was not proved? Where was the evidence of the legal act of substitution of a candidate and the locus standi of a substituted party man?

Head or tail, the law and justice do not avail this appeal. This rather Political Question lies at the domestic forum of the political party and its members and aspirants.
The 6th Respondents name had been forwarded to INEC vide form CF001 and CF002 on 18th October, 2018 long before the 10th December, 2018 date alleged. The said testimony of DW6 was not rebutted.
The clarity of Section 285 (9) of the Constitution of the Federal Republic of Nigeria (as amended by the 4th Alteration) must be given effect to.

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The Court of trial was without jurisdiction to entertain any action. See Marwa & Ors v. Nyako & Ors (2012) 6 NWLR (pt 1296) 1999. The 1st and 4th Respondents learned counsel was right when he submitted that in the face of Exhibit D i.e INEC form CF001 and CF002 of 18th October, 2018, the plaintiff would have instituted his suit, but waited until 24 – 12 – 2018 even after Exhibit P5 his petition was lodged at the party office.
The 1st and 4th Respondents are right when they argued that the period of limitation is not prevented from running because of negotiation or settlement of dispute. The case of Agricultural and Rural Management Institute (ARMTI) v. Bayere (2003) FWLR (pt 153) page 649 @ 662 pars C – E cited is apt. The intention of the drafters of Section 285 (9) of the 4th Alteration Act No. 21 of 2017 is to ensure speedy prosecution of pre election matters and not to foot drag relying on negotiation and possible settlement.
There was nothing to build upon this action that was statute barred.

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See Nasir v. Civil Service Commission Kano State (2010) 6 NWLR (pt 1190) 253 at page 271 par. A
No exceptional circumstances, not even fraud would have availed in elongating the period constitutionally limited as the supreme law of the land makes that limitation Notwithstanding anything contained even in the Constitution—
It is only by a Constitutional Amendment that that provision can be elongated or shortened. A rock of Gibraltar in our electoral jurisprudence; so to say.
The peoples will for a specific or peculiar malady. The Tonic or elixir is prescribed for mandatory application by the judex.
Furthermore, the 1st and 4th Respondents counsel had rightly submitted that even if the suit was not statute barred, the relief was ungrantable as Appellant, by his ipsixit dixit, said he had not participated at any such election, which he said was not held. Section 285(13) of the Constitution (4th Alteration) as Amended, Provides that An election tribunal or court shall not declare any person a winner at any election in which such a person has not fully participated in all stages of the election.

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The trial Court could not in violation of the above provision grant the prayer directing the forwarding of Appellants name to INEC as prayed, as a winner of the Primary Election, as that would have amounted to declaring him elected at an election which he had disowned, thus granting a relief claimed but not proved and in which he said he had not participated.
The 1st and 4th Respondents and the 3rd, 5th and 6th Respondents counsel had each raised an unassailable opposition in law, to this appeal; in the same manner, the most fitting decisions in Ugwu v. Ararume (2007) ALL FWLR (pt 377) 909 – 910 pars E – G on legislative intent to be interpreted and enforced strictly and the immutability of time lag as decided in All Progressives Grand Alliance v. Dr Okey Chidolue & Ors (2019) LPELR 47160 (CA) pages 12 – 14 pars B – D, Senator Ayogun Eze & Ors v. Barrister George Ogara & Anr (2019) LPELR 47131 (CA) 28 – 33 par. D cited by 3rd, 5th and 6th Respondents counsel are apt.
The constitution is not subject to the Rules and constitution of any political party. The trial Court was, therefore, right when it relied on

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Section 285(9) Constitution (4th Alteration) and in applying Section 87(9) of the Electoral Act, 2010 and citing the cases of PDP v. Nguroje & Ors (2012) LPELR 20859 (CA) pages 67 – 73 paragraphs A-C, APC & Ors v. Karfi & Ors (2015) LPELR 41857 (CA) Pages 33 – 34 paragraphs D – C. As time does not cease to run because of the fact of negotiation between the parties. See also LG SC Ekiti State v. Bamisaye (2016) 8 NWLR (pt 1514) 373 @ 380 paragraphs B – D.

By and large, the learned counsel for the 3rd, 5th and 6th Respondents brought out in submission in the clarity of thought the fact, that Exhibits D59 – D60 were actually original copies of the Reports of the Election and the Results as tendered. They were, therefore, rightly admitted and did not violate the principle of not admitting tendered but marked rejected documents as earlier on thought.
Even the documentary evidence of ward results of wards 3, 6, 7, 8, 9 and 10 and all the listed documentary evidence admitted had established the fact of election.
Learned counsel was right in asking the question whether the rejection of a tendered version of a

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document by one party can prevent another party from tendering the original for his own case. I agree that it cannot be; and indeed,Wassah v. Kara LPELR (2014) relied upon by the Appellant is distinguishable as in that case it was an attempt by same party to retender same document.

Indeed, Ajana, Esq had exquisitely submitted on the abysmal failure to prove the non conduct of the primary election and relying on Kakih v. PDP; Chime v. Ezeah; Ayogu v. Nnamani all cited in the 3rd, 5th and 6th Respondents Brief of Argument by not calling at least a witness from each polling unit or ward. That this was not done, but rather, an attempt at forcing a political party to nominate him, which a Court cannot do. See Agadi v. PDP (2018) 15 NWLR (pt 1641) 33 – 34 aptly cited by Ajana, Esq.

Indeed, the learned counsels Brief of Argument is a study in comprehensive lexis, logic and apt appreciation and application of facts and evidence to the law relevant. See also Andre v. INEC (2018) 9 NWLR (pt 1625) 507 at 581 pars. F – G.

The submission that results of a purported election tendered were concocted, self generated and contrived was

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an allegation of fraud which ought to have been particularised and proved by evidence.

It was a Result tendered in answer to the negative averment, and therefore, the said negative averment which did not warrant a response had one which stood unrebutted.
Indeed, the 1st and 4th respondents and the 3rd, 5th and 6th Respondents issues are same and aptly stated and argued.
They have respectively answered the Appellants issues which are all resolved in favour of the two sets of Respondents.

On the whole, the action is statute barred; and even on the merit, it was unproved; see Chemiron International Ltd v. Stabili Visionoli Ltd (2018) 17 NWLR (pt 1647) 62 at 79 BC (SC); the trial Courts decision is correct and is affirmed.

I must, however, say, that the Appellants suit may be a clarion call for political parties to be firm, transparent and assertive and never be shifty on their agreed mode of choosing their candidates, and to be true in fidelity to the dates fixed and be sincere in political horse Trading/Agreements as Members must have the tolerance of abiding by the Rules and the ultimate interest of

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the Rule of law and love of their people and country uppermost in their hearts, as principled stand should be the guide.

That manifestoes, Rules and Regulations of political parties should indeed, effectuate the constitution, the Electoral Act, Rules etc to make the kettle and pot not sieseme twins and to give the lie to any contrary assertion or perception; is a patriotic call.

It is for the little thought above and the clarity of the views and conclusion of my learned brother, Ridwan Maiwada Abdullahi, JCAs in the lead, which I agree with, that I, too, shall dismiss this appeal.
However, having earlier found that the suit was statute barred and the trial Court no longer had jurisdiction, the suit No. FHC/AK/CK/100/2018 is struck out and the appeal is accordingly dismissed and the judgment of A. Dogo, J, delivered on 21 – 6 – 2019 is affirmed.

PATRICIA AJUMA MAHMOUD J.C.A.: 
I was part of the conference that led to the judgment of my learned brother, RIDWAN MAIWADA ABDULLAHI, JCA just delivered. I also read the said judgment in advance. For reasons given by him in the

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said judgment, I too agree that this appeal lacks merit and should be dismissed.

The Preliminary Objection as raised in the trial Court was to the effect that the action was statute barred and therefore ousted the jurisdiction of the trial Court. I adopt the conclusions of my learned brother in the lead judgment that having found that the action was statute barred, to proceed to determine the substantive issues raised amounts to an academic exercise which should not ordinarily be a past time for judicial indulgence. Be that as it may, I recognize that this is a pre-election matter. This Court is not the Court of last instance on this matter. I find it pertinent in the circumstances of this case to therefore comment even if briefly on the substantive appeal. This is because should the matter go further upstairs to the Supreme Court and the Court finds that our finding on the Preliminary Objection is unmaintainable in law, it would be able to determine this appeal on its merits.

From the issues submitted by all the parties, I find that the only live issue in this appeal is whether the petitioner/appellant proved his case on the balance of evidence. The crux of the petitioner’s/appellant’s claim is whether or not

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there was a primary election on the 5th Of October, 2018 by the 1st respondent to elect its candidate for the Akoko South-East/Akoko South-West Federal Constituency. To determine this important issue as arising for determination, it is important to identify and isolate who among the parties bears the burden of proof. Even though all the respondents are agreed that the burden of proof lies on the petitioner/appellant, this position is diametrically opposite to the position of the appellant. The established position of the law is that the burden of proof lies upon that party who affirms and not upon him who denies. This was the holding of this Court in the case of ONOSIGHO V GLOBACOM LTD & ANOR (2016) LPELR-40496 (CA) which relied and followed the decision of the Supreme Court in the case of ELIAS V OMO-BARE (1982) 5 SC. See also the more recent case of ILIYA & ANOR V LAMU & ANOR (2019) LPELR-47048 (CA). The Supreme Court expounded this principle further in the case of SAKATI V BAKO & ANOR (2015) 14 NWLR PT 1480, 531 where it held that the burden rests on the party who would fall if no evidence at all or no more evidence was led on either

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side. See also the more recent Supreme Court case of ANDREW V INEC (2018) 9 NWLR PT 1625, 507 AT 581 as cited by the learned counsel to 2nd, 3rd & 6th respondents. Based on these authorities and the thorough review of the records of the trial Court, I find that the learned trial judge was on unshakeable ground when he rightly held that the petitioner/appellant failed to prove his claim before him. This is because as he rightly found the totality of the evidence led by the petitioner/appellant was hearsay evidence. Each witness relied on what others told them that the primary election did not hold in the entire constituency. I uphold the submission of MR Ajana, learned counsel to the 2nd, 3rd and 6th Respondents in referring to the case of AYOGU V NNAMANI (2006) 8 NWLR, PT 981, 160 AT 187 PARAS B-D to the effect that the petitioner had a burden to call at least a registered voter from each of the polling booths in each of the wards in the respective Local Government Areas to show that he could not vote on the 05/10/2018 as there was no voting material or party election or committee members to preside over the voting or INEC officials to

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supervise the election as prescribed by party guidelines or the Electoral Act. This he failed to do. I find that this failure is fatal.
In other words, I hold that I find no compelling reason in this appeal to disturb the well-considered judgment of the lower trial tribunal. This position is fortified by the fact that not only has the petitioner/appellant failed to prove his case but that the reliefs sought by him are not justiciable.

From the totality of the pleadings and evidence led by the appellant, it is clear that the real crux of the appellant’s case is the failure/refusal of the 1st respondent i.e APC, to adhere to the gentleman’s agreement to zone the position to his zone and therefore sponsor him as a candidate of the party for the said election. This is not a cause of action within the combined provisions of Sections 87(9) of the Electoral Act as amended and 285(4)(a) of the 4th Alteration to the 1999 Constitution.
Indeed, on the authority of ADEBUSUYI V ODUYOYE & ORS (2004) 1 NWLR, PT 854, 406, this Court held that the Court does not have jurisdiction over the nomination/sponsorship of candidates of a political party.

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That that remains the internal affairs of the party. See also the more recent decision of the Supreme Court in PALI V ABDU & ORS (2019) LPELR 46342 (SC).
For these reasons and the more robust reasons given in the lead judgment, I too dismiss this appeal. I also make no order as to costs.

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Appearances:

O. O. Ayenakin with him, O. A. Dare-Daniel and O. A. Ajayi, Esq. For Appellant(s)

B. A. Aderosin with him, H. I. Akingbesote, Esq. for the 1st and 4th Respondents.

Chief A. O. Ajana with him, Afe Felix and Victor Nna, Esq. for the 2nd, 3rd and 6th Respondents.

A. F. Lawal with him, O. O. Adewole, Esq. for the 5th Respondent For Respondent(s)

 

Appearances

O. O. Ayenakin with him, O. A. Dare-Daniel and O. A. Ajayi, Esq. For Appellant

 

AND

B. A. Aderosin with him, H. I. Akingbesote, Esq. for the 1st and 4th Respondents.

Chief A. O. Ajana with him, Afe Felix and Victor Nna, Esq. for the 2nd, 3rd and 6th Respondents.

A. F. Lawal with him, O. O. Adewole, Esq. for the 5th Respondent For Respondent