PEOPLES DEMOCRATIC PARTY v. HON. NED MUNIR NWOKO & ORS (2012)

PEOPLES DEMOCRATIC PARTY v. HON. NED MUNIR NWOKO & ORS

(2012)LCN/5115(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of May, 2019

CA/A/319/2019

RATIO

PRACTICE AND PROCEDURE: WHETHER AN ORIGINATING SUMMON PROCEDURE WILL LIE WHERE THE ISSUES ARE IN DISPUTE OR ARE CONTENTIOUS

It is generally known that Originating Summons is used basically in non-contentious matters.
In the case of PAM VS. MOHAMMED (2008) 16 NWLR PART 1112 PAGE 1, it was held: “Where the issues are in dispute or are contentious, an originating summon procedure will not lie. In such a situation, the party must initiate the action by a writ of summons, a procedure which accommodates pleadings of facts. An action could be brought by originating summons where the sole or principal question in issue is or likely to be one of construction of a statute, or of any deed, will, contract, or other document or some other questions of law.” PER. MOHAMMED BABA IDRIS, J.C.A.

THE POSITION OF THE LAW ON THE CAUSE OF ACTION IN A SUIT.

In determining when the cause of action of the 1st Respondent 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 PART 965 PAGE 546, it was held: “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 case of OGBIMI VS. OLOLO (1993) 7 NWLR PART 304 PAGE 128 at 136, it was held that: “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 PART 127 PAGE 369 AT 382 – 383; “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 recent Court of Appeal case of OBIKA VS. OBIKA (2018) LPELR – 43965, it was defined as “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.

THE UNDERLYING PRINCIPLE IN THE INTERPRETATION OF STATUTE

The underlying principle in the interpretation of statute is that the meaning of the statute or legislation must be collected from the plain and unambiguous expressions or words used therein rather than from any notions which may be entertained as to what is just and expedient. The literal construction must be followed unless this would lead to absurdity. See LAWAL VS. G.B. OLLIVANT (1972) 3 SC 124. In the case of ONASHILE VS. IDOWU (1961) ALL NLR 313, it was held that: It is the duty of the judge to construe the words of a statute and give those words their appropriate meaning and effect.” Finally, in the case of GARBA VS. FCSC (1988) 1 NWLR PART 71 PAGE 449, it was held: “the words in a statute are primarily used in their ordinary grammatical meaning or common or popular sense and generally as used as they would have been ordinarily understood.” PER. MOHAMMED BABA IDRIS, J.C.A.

THE ATTITUDE OF THE COURT TOWARDS AN ACADEMIC ISSUE

In the Supreme Court case of PLATEAU STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR PART 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 recently decided Supreme Court case of AKEREDOLU VS. ABRAHAM (2018) 10 NWLR PART 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 PART 1628 PAGE 485 AT 496, it was held per Rhodes-Vivour, .JSC that: “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.” PER. MOHAMMED BABA IDRIS, J.C.A.

Justice

ADAMU JAURO 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

Justice

PEOPLES DEMOCRATIC PARTY (PDP)Appellant(s)

AND

1. HON. NED MUNIR NWOKO
2. INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC)
3. SENATOR PETER NWAOBOSHIRespondent(s)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Originating Summons filed on the 11th of December, 2018 before the Federal High Court, sitting in Abuja, the 1st Respondent who was Plaintiff at the trial Court sought for the determination of the following questions and sought the reliefs set out hereunder:
a) Whether the 1st Defendant, Independent National Electoral Commission (INEC) who supervised and monitored the Primary Election of the 2nd Defendant and knows that the Plaintiff won the majority of valid and lawful votes cast at the Primary Election of the 2nd Defendant can lawfully accept, display and/or publish the name of the 3rd Defendant as the candidate of the 2nd Defendant for the Delta North Senatorial District Election, when the 3rd Defendant lost the election.
b) Whether by the mandatory provisions of the Electoral Act 2010 (as amended), the 1st Defendant (INEC) is not bound to publish only the name of the Plaintiff who won the Primary Election of the 2nd Defendant in respect of the Delta North Senatorial District in respect of the 2019 General Election.
c) Whether the continued display of

the name of the 3rd Defendant by the 1st Defendant as the candidate of the 2nd Defendant for the Delta North Senatorial District in respect of the 2019 General Elections instead of the name of the Plaintiff does not constitute a violation of the Constitution of the Federal Republic of Nigeria, the Electoral Act, the Guidelines of the 2nd Defendant and the vested right of the Plaintiff as the valid candidate for the said election.
RELIEFS SOUGHT
1. A declaration that the Plaintiff having contested and won the Primary Election of the 2nd Defendant (PDP) in respect of the Delta North Senatorial District for the 2019 General Election is the only person whose name should be published as the candidate of the 2nd Defendant (PDP) in respect of the Delta North Senatorial District,
2. A declaration that the action of the 1st Defendant in displaying and/or publishing the 3rd Defendant who contested and lost the Primary Election of the Defendant in respect of the Delta North Senatorial District is unconstitutional, null, void and of no effect in law.
3. An order directing the 1st Defendant to immediately publish the name of the Plaintiff who won the

Primary Election of the 2nd Defendant (PDP) in respect of the Senatorial Election slated for 2019 as the authentic candidate of the 2nd Defendant for Delta North Senatorial Election.
4. An Order of perpetual injunction restraining the 3rd Defendant from parading himself as the PDP candidate for the Delta North Senatorial Election scheduled to hold in 2019.

It was the 1st Respondent’s case at the trial Court that he was an aspirant for the Delta North Senatorial District. Having been screened and cleared by the Appellant, he and other aspirants contested for the Delta North Senatorial District Primary Election held on the 2nd of October, 2018. According to the 1st Respondent, he scored the highest number of valid votes cast at the said primary election but the Appellant’s Electoral Committee failed to comply with the Guidelines for the primary election as it prevented duly elected delegates from having access to delegate tags and gave them to persons other than the accredited delegates for the purpose of helping the 3rd Respondent win the primary election fraudulently.

The 1st Respondent had stated that after the election and counting of votes,

it was clear that he scored the highest votes but the 3rd Respondent and his hired thugs caused chaos, thus, leading to the recording of false results. Furthermore, it was argued that even the Appellant did not have accurate records of what happened during the primary election and two different results with different serial numbers were produced by the Appellant. It was then stated that it was obvious that the Appellant was trying to favour the 3rd Respondent and have him declared as winner.

The 1st Respondent, determined to be declared the winner of the election which he claimed to have won, filed an Appeal to the Appeal Panel of the Appellant. However, the appeal could not be heard because he filed it out of the 24 hours period provided for in the Guidelines and Regulations of the Appellant.

Pressed for results, he instituted an action before the High Court of the Federal Capital Territory sitting in Abuja, seeking for an order to restrain the 2nd Respondent ‘from publishing the name of the 3rd Respondent. However, the suit was struck out for want of territorial jurisdiction.

The 1st Respondent then approached the Federal High Court sitting in

Abuja, seeking for the above mentioned reliefs. The Appellant, as 2nd Defendant stated that the primary election was supervised by the 2nd Respondent INEC and there was no violence neither did the 3rd Respondent bring in thugs to cause a stampede. Also, it was argued that the suit was filed 69 days after the time stipulated under Section 285 (9) of the Constitution of the Federal Republic of Nigeria (1999) as amended (4th Alteration). Thus, the entire suit was statute barred.

The judgment of the trial Court was delivered by Honourable Justice A.R. Mohammad on the 3rd of April, 2019 where he held that the suit was not statute barred and he granted the third and fourth reliefs sought by the 1st Respondent.

Unhappy with decision of the trial Court, the Appellant filed a Notice of Appeal filed on the 15th of April, 2019, comprising of ten grounds of appeal.

The Appellant’s Brief of argument was filed on the 23rd of April, 2019, settled by Emmanuel Enoidem Esq., and Six issues for determination were distilled:
1. Whether this suit is not statute barred having been brought 73days after the act complained of which took place on 02-10-2018, contrary

to Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). (Distilled from grounds 1 and 2).
2. Whether this suit as filed is cognizable under Originating Summons procedure. (Distilled from Grounds 5 and 6).
3. Whether the learned trial judge was right to have granted reliefs Nos 3 & 4 bothering on publication of the 1st Respondent’s name by the 2nd Respondent when the issue of who was the winner of the primary election on 2/10/2018 was still outstanding and unresolved (Distilled from Ground 10).
4. Whether in the light and circumstances of this suit, the 1st Respondent has put sufficient evidence before the trial Court to be entitled to the reliefs granted (Distilled from Grounds 3 and 4).
5. Whether the learned trial judge was right to grant to the 1st Respondent reliefs Nos 3 & 4 as ancillary reliefs after refusing the main reliefs Nos 1 & 2 on the ground that “the election into the Constitution in issue had already been held.”
6. Whether in the light and circumstances of this suit, the 3rd Respondent can be held not to be party to which the order exparte made by the trial Court will

affect. (Distilled from Ground 9).

On issue one, the Appellant’s counsel has argued that the issue of jurisdiction is very fundamental and it is the blood that gives life to a Court to determine a case. It is the learned counsel for the Appellant’s argument that the primary election which is the subject matter of the suit took place on the 2nd of October, 2019 and the suit was filed on the 11th of December, 2018 which is clearly 69 days after the cause of action had accrued.

It was argued that based on Section 285 (14) of the 1999 CERN (as amended) 4th Alteration, the issue before this Honourable Court is a pre-election matter and based on Section 285 (9) of the 1999 CFRN (as amended) 4th Alteration, it must be filed within 14 days that the cause of action accrued.

It is the argument of Appellant’s counsel that in calculating the 14 days period, the date of the primary election must be counted. By this, the suit ought to have been filed by the 15th of October, 2018. Thus, the filing of this suit on the 11th of December, 2018 has rendered it stature barred, dead on arrival and incompetent. The Appellant counsel relied on the

following cases ANPP VS. GONI (2012) 7 NWLR PART 1298 PAGES 147 AT 182-183 PARAS E – A; AKANDE VS. INEC & ORS (2011) LPELR 3680 amongst others.

The Appellant’s counsel has argued that the reasoning of the trial judge is wrong when he stated that since the 1st Respondent had initially filed the suit before the FCT High Court but same was withdrawn and struck out because of the issue of territorial jurisdiction, the earlier suit filed can be resuscitated and the time spent at the wrong Court cannot be counted, citing the case of SIFAX (NIG.) LTD VS. MIGFO (NIG.) LTD (2018) 9 NWLR PART 1623 PAGES 182 183 PARAS G-B.

It was argued by Appellant’s counsel that the Learned trial judge misapplied the law and facts of the case because the cases he relied on were not statute barred on the dates filed, that even the suit that was withdrawn FCT/HC/CV/3086/18 was filed out of time and was withdrawn and struck out by the Court for being statute barred and for want of territorial jurisdiction as the preliminary objection filed by the Appellant succeeded. Thus, it is impossible to use a dead suit to save another dead suit.

Also, it was argued that the

learned trial judge was wrong when he stated that the case of the 1st Respondent (then Plaintiff) was not against the primary election but against the continued display of the 3rd Respondent as the candidate by the 2nd Respondent (INEC). This is because the display of the 3rd Respondent would not have happened if there was no question surrounding the primary election.

This Court was urged to hold that the issue in the Court below was about who won the primary election and not about the continuous publication of the name of the 3rd Respondent.

On issue two, the Appellant’s counsel submitted that the filing and hearing of the suit under Originating Summons procedure was incompetent because originating summons are reserved for issues that do not involve great controversy that can only be resolved by pleadings. Reference was made to OBASANYA VS. BABAFEMI (2000) 15 NWLR PART 689 PAGE 1; DIN VS.A.G FEDERATION (1986) 2 NWLR PART 17 PAGE 471; KEYAMO VS. LAGOS STATE HOUSE OF ASSEMBLY (2002) 18 NWLR PART 799 PAGES 605.

It is the argument of Appellant’s counsel that this case ought to have been commenced by way of writ of summons because it is settled

law that when there is an allegation of crime made in a civil suit, it must be proved beyond reasonable doubt.

Also, the trial Court had ordered for the ballot papers used during the primary election to be deposited in the Registry of the Court. Then the 1st Respondent had also brought an application, seeking to count the said ballot papers. All these controversies cannot be resolved by Originating summons.
GOVERNMENT OF KANO STATE VS. EFCC (2015) LPELR 25958.

Finally, it was submitted that the controversies in this suit cannot be resolved by affidavit evidence and the failure of the trial judge to order the transfer of the case to the general cause list where pleadings would have been exchanged has led to in Justice.

On issue 3, the Appellant’s counsel argued that the learned trial judge was wrong to have granted reliefs 3 and 4 which bordered on the publication of the 3rd Respondent without first resolving who actually won the primary election which is what reliefs one and two were anchored on.

Also, the Appellant’s counsel has argued that the judgment of the Court, granting reliefs 3 and 4 was made 40 days after the general elections

for the Senate seat. By this, the learned judge had no powers to grant reliefs 3 and 4 because the election had held and in the case of HON. PRINCE NICHOLAS UKACHUKWU VS. HON. BARR. NNAMDI EZIKE & ORS (2014) LPELR 22488, it was held that a party cannot ask the Court to declare him as the nominated candidate of a political party for an election that had been held. This position is also confirmed by the provisions of Section 285 (13) of the 1999 CFRN (as amended) 4th Alteration which provides:
“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 the stages of the election.”

Finally, it was submitted that the learned trial judge had no right to direct that the name of the 1st Respondent be published as the candidate for an election that has passed or stop the 3rd Respondent who won the election, from parading himself or occupying the office. Reliance was placed on CPC & ANOR VS. HON. EMMANUEL OMBUGADU & ANOR (2013) LPELR 21007.

On issue four, it was argued by Appellant’s counsel that the case of the 1st Respondent at the trial Court was

declaratory and thus, he ought to succeed on the strength of his case and not on the weaknesses of the opposing parties.
Reference was made to NDUUL VS.WAYO (2018) LPELR 45151.

It was argued that the 1st Respondent throughout at the trial Court claimed that he won the primary election that held on the 2nd of October, 2018 but never gave a figure to the votes he scored. Thus, he cannot bring an action under Section 87 (9) of Electoral Act 2010 (as amended). Reference was made to KAYODE VS. APC & ORS (2014) LPELR 23092.

Also, that the 1st Respondent failed to prove the allegation that the 3rd Respondent and his thugs and agents caused unrest during the primary election. This is an allegation of crime which he failed to prove beyond reasonable doubt. The case of PDP VS. SANI & ORS (2015) LPELR 40370 was cited.

It was also argued that the 1st Respondent had directly and indirectly admitted that the 3rd Respondent was the winner of the election through the documents he had tendered such as Exhibit PDP2, PDP3, PDP5 and PDP13.

Finally, the Appellant’s counsel urged this Court to set aside the judgment of the lower

Court for want of evidence in support.

On issue five, the Appellant’s counsel has argued that the 1st Respondent’s case was essentially for declaratory reliefs especially reliefs Nos 1 and 2. It was further stated that Reliefs Nos. 3 and 4 being ancillary reliefs can only be granted upon the success of the declaratory reliefs in Nos 1 and 2 which were the main claims.

The publication of the name of the 3rd Respondent only happened as a result of the primary election where it was held that he emerged winner. Reliefs 3 and 4 cannot be granted without first resolving the issue of who emerged winner of the primary election. Throughout the trial, the 1st Respondent failed to prove that he won the primary election.

Finally, it was submitted that the grant of the reliefs 3 and 4 were an academic exercise as it would serve no useful purpose as the 1st Respondent cannot become a candidate in an election that has since been concluded.

On issue six, it was the argument of learned Appellant’s counsel that even though the suit was commenced by Originating Summons, the learned trial judge made an order directing that the ballot papers be deposited at

the registry of Court. This is very novel and strange to proceedings commenced by way of Originating Summons.

At the trial Court, the 3rd Respondent filed a motion seeking for the setting aside of the said motion exparte but the trial judge held that the motion ex parte had no effect on the 3rd Respondent. Thus, it was argued that the 3rd Respondent was the winner of the primary election and the order would definitely affect him. Also, the lifespan of the exparte is 14 days and parties affected may apply to the Court to vary the order or have it discharged. This was brought to the attention of the trial Court but he failed to take cognizance of it.

It was finally submitted by Appellant counsel that the trial Court having known that the order has lapsed ought to have suo motu set aside the order or uphold the prayer of the 3rd Respondent in respect of it. This Court was urged to allow the appeal.

The 1st Respondent filed his Brief of argument on the 20th of May, 2019 and it was settled by Adeola Adedipe Esq. The 1st Respondent adopted all the issues for determination raised by the Appellant. They are reproduced hereunder as follows:

1. Whether this suit is not statute barred having been brought 69 days after the act complained of which took place on 02/10/2018 contrary to Section 285(9) of the of the 1999 CFRN (as amended) 4th Alteration Act No.27 2017 (Grounds 1 and 2).
2. Whether this suit as filed is cognizable under Originating Summons procedure. (Distilled from Grounds 5 and 6).
3. Whether the learned trial judge was right to have granted reliefs Nos 3 & 4 bothering on publication of the 1st Respondent’s name by the 2nd Respondent when the issue of who was the winner of the primary election on 2/10/2018 was still outstanding and unresolved. (Distilled from Ground 10).
4. Whether in the light and circumstances of this suit, the 1st Respondent has put sufficient evidence before the trial Court to be entitled to the reliefs granted. (Distilled from Grounds 3 and 4).
5. Whether the learned trial judge was right to grant to the 1st Respondent reliefs Nos 3 & 4 as ancillary reliefs after refusing the main reliefs Nos 1 & 2 on the ground that “the election into the Constitution in issue had already been held.”
6. Whether in the light and circumstances of this

suit, the 3rd Respondent can be held not to be party to which the order exparted made by the trial Court will affect. (Distilled from Ground 9).

On issue one, the 1st Respondent’s counsel has argued that the Appellant was wrong when it stated that his case strictly revolved on the complaint against the primary election of 2nd October, 2018 and based on this, the suit ought to have been initiated within 14 days from the 2nd of October, 2018.

It is the 1st Respondent’s counsel’s argument that the cause of action arose by the continuous publication by the 2nd Respondent of the 3rd Respondent and the law is well settled that where the wrong or damage is of a continuing nature, time does not begin to run until the continuing damage ceases and the time will only be computed from the cessation of the continuing damage. Thus, the cause of action accrues and automatically renews itself when and until there is a cessation of the continuing damage or injury. Reference was made to GWEDE VS. INEC (2014) 16 NWLR PART 1438. Thus, the injury caused by the 2nd Respondent to the 1st Respondent did not abate at anytime because it was a continued one.

It was further argued that the suit of the 1st Respondent was not caught up by Section 285 (9) of the 1999 CFRN (as amended) 4th Alteration because the suit that gave rise to this appeal was instituted on the 11th of December, 2018. The 2nd Respondent still made publication on the 17th January, 2019. This amounts to the fact that a fresh injury was perpetrated by the 2nd Respondent against the doctrine of lis pendens and an extant order of Court restraining it from so doing. Thus, the suit cannot be said to be statute barred. Reliance was placed on ADDAX PET. DEV. (NIG.)LTD VS. EMEF INTERNATIONAL OPERATIONS (2012) ALL FWLR PART 621 PAGES 1585.

It was further argued that it is the name of the 1st Respondent that ought to have been published by the 2nd Respondent and not the name of the 3rd Respondent who did not win the primary election. It is on this ground the 1st Respondent sought for an order of Court for the production of the ballot papers and depositing of same in the Court’s registry so as to preserve the res. It is the argument of 1st Respondent counsel that time could not have begun to run against the 1st Respondent, until INEC purged itself of the wrong

publication, which is a continued injury. Reference was made to EGBE VS. ADEFARASIN (1987) 1 NWLR PART 47 PAGE 20.

Also, it was argued that the 1st Respondent could only have sued when the 3rd Respondent’s name was wrongly published by the 2nd Respondent or at a time when the 3rd Respondent could have been made a Defendant. Also, that in computing the date of when the cause of action accrued, it is the date of substitution that must be looked at and not the date of the primaries. The unreported decision in APPEAL NO: SC.222/2019 – ALL PROGRESSIVE CONGRESS & ANOR VS. ENGR. ALIYU SULEIMAN LERE & ANOR was cited.

The 1st Respondent admitted that at the end of the primary elections, the 3rd Defendant was announced winner. These made the 1st Respondent file a complaint at the appeal panel of the 2nd Respondent but they failed to look into the appeal because it was not filed within time. This decision was not communicated to the 1st Respondent until the 7th or 9th of October, 2018. It was submitted that time ought to begin to run from these two dates.

The 1st Respondent instituted the suit at the FCT High Court on the

19th of October, 2018 until the issue of territorial jurisdiction was raised and the matter was withdrawn and struck out. Thus, the suit was filed within the 14 days stipulated by the law.

On issue two, it was argued that it seems that the Appellant had abdicated the bounden duty placed on it by virtue of Section 116 of the Evidence Act 2011 as amended to show that that there are irreconcilable depositions on crucial and material facts. This according to the 1st Respondent was not shown by the Appellant. The exparte order made by the learned trial judge, ordering that the certified true copies of the ballot papers be made available and deposited in the Court’s registry was to enable him make substantial Justice. The refusal of the Appellant to deposit same made the trial judge invoke Section 167 (d) of the Evidence Act 2010 as amended having admitted that the ballot papers were in its possession. However, when the said ballot papers were produced before the trial Court, they were duly certified and the trial Court was right in relying on it to reach a verdict. Reference was made to MOZIE VS. MBAMALU (2006) 15 NWLR PART

1003 PAGE 466.

The 1st Respondent made reference to Exhibit F1- F4 which contain certified true copies of the ballot papers. The Appellant has merely denied the emanation of the said ballot papers and has refused to tender the actual one it claims exist.

The 1st Respondent has argued that the case at the trial Court qualified to be commenced by Originating Summons.

The 1st Respondent argued issue three, four and five together, stating that the assertion made by the Appellant that the case of the 1st Respondent was declaratory in nature was erroneous and misleading. It was submitted that the case at the trial Court were both declaratory and executory orders.

The trial judge had on page 886 Volume II of the Record of Appeal stated that:
“From the face of Exhibits F1-F4 series, this Court is not in doubt that they were certified true copies of the ballot papers and that they emanated from the office of the 2nd Defendant. In order to refute or effectively deny the genuineness or otherwise of Exhibit F1 series – F4 series, the 2nd Defendant who conducted the primary election in issue and who is in custody of the ballot papers which it

alleged were the ones used during the primary election ought to have exhibited the ballot papers it claimed was used in the conduct of the primary election in issue. I find the mere denial of the 2nd Defendant rather barren and untenable in the face of Exhibits F1 series- F4 series.”

It was argued that the above quoted judgment of the trial Court had not been appealed against by the Appellant and thus, it remains valid and subsisting and the Appellate Court is bound to act on it. That the Appellant merely denied the authenticity of the ballot papers produced by the 1st Respondent and made no effort to supply documentary evidence in support.

It was also argued that the assertion of the Appellant’s counsel that the trial judge was wrong to have granted reliefs three and four, knowing fully well that they are consequential orders flowing from Reliefs one and two, is totally erroneous and misleading. It is the submission of 1st Respondent’s counsel that the four reliefs sought before the trial Court were not interdependent. Thus, the failure of a relief cannot in anyway prevent the grant of the others. That it is clear that the reason for the refusal of

the trial Court to grant relief one and two was that the elections had already been conducted and therefore un-grantable and it is the trite principle of law that the Court will not do anything in vain to give an order that cannot be enforced. Reliance was placed on ADEOGUN VS. FASHOGBON (2008) 17 NWLR PART 1115 PAGE 149 AT PAGE 193.

On issue six, the 1st Respondent has argued that the Appellant had no locus standi to raise the issue of the exparte order made in respect of the depositing of the ballot papers at the trial Court’s registry on appeal having neither challenged the application at the trial Court not being a party against whom the finding was made. The 1st Respondent urged this Court to reject all the submission made by the Appellant under this issue.

Finally, this Court was urged to dismiss the appeal in its entirety and affirm the judgment of the trial Court.

The Appellant filed a Reply Brief dated the 21st of May, 2019 settled by Emmanuel Moses Enoidem Esq. It was argued in response by Appellant’s counsel that the 1st Respondent never won the primary election and he avoided mentioning the total number of votes cast in his favour at

the said election. Thus, he cannot be heard challenging the publication of the 3rd Respondent’s name as the candidate by the 2nd Respondent.

Also, in response to the position maintained by 1st Respondent that his cause of action is premised on the continuous publication of the name of the 3rd Respondent by the 2nd Respondent, it was argued by Appellant’s counsel that there can be no issue of publication without the issue of who won the primary election being resolved first. Reliance was placed on GWEDE VS. INEC & ANOR (2014) LPELR 23763.

Also, it was argued that the issue of continuous injury which is applicable to tortuous matters as argued by the 1st Respondent’s counsel cannot be applicable to pre election matters. In the latter, it is the exact date the cause of action accrued that will be considered and not subsequent and repeated acts complained of. Reference was made to KUMO VS.BARAMBU (2019) LPELR – 47069.

This Court was urged to allow the appeal and set aside the judgment of the lower Court.

The 1st Respondent filed a Notice of Preliminary Objection, praying for the following orders:
1. An order to strike out the

Appellant’s Notice of appeal (all the grounds of appeal, including the supporting particulars thereto) filed on the 15th of April, 2019 for being imprecise, vague, nebulous, general in terms and in violation of Order 7 Rules 2(3) & 4 of the Court of Appeal Rules 2016.
2. An order to strike out all the paragraphs purporting to support Ground 2 of the Notice of Appeal for non-compliance with Order 7 Rule 2(2) of the Court of Appeal Rules 2016, including the substantive Ground 2 which does not derive from the judgment, and Issue one which purports to derive from it.
3. An order to strike out Ground 5 of the Notice of Appeal, including issue 2 which purports to derive from it, the said ground which is barred by virtue of Section 285(4) of the 1999 Constitution (4th Alteration).
4. An order to strike out Ground 6 in the Notice of appeal, including issue 2 which purports to derive from it, the said ground which is not only speculative and fictitious, but does not emanate from the judgment of the trial Federal High Court.
5. An order to strike out Ground 4 & 8 of the Appellant’s Notice of Appeal (filed on 15th April, 2019) including issues

4 and 5 which respectively purport to derive from them, the said grounds which are fresh issues that have been raised without the leave of Court.
6. An order to strike out Ground 9 of the Appellant’s Notice of Appeal (filed on 15th April, 2019) including issue 6 which derives from it, the said ground which is incoherent, nebulous, vague, imprecise and in violation of Order 7 Rules 2(3) & (4) of the Court of Appeal Rules 2016,
7. And for such order or other orders the Honourable Court may deem fit to make in the circumstance.

On relief one, the 1st Respondent had argued that the Appellant in its Notice of Appeal had made use of the words “Plaintiff”, “3rd Defendant” instead of the “1st Respondent”, 3rd Respondent”. Thus, making the Notice of Appeal too confusing and difficult to understand. On this basis, it was argued that the Notice of appeal was invalid, making the entire appeal incompetent and liable to be struck out. Reliance was placed on FBN PLC & ORS VS.ALHAJI SALAMANU MAIWADA & ORS (2012) LPELR – 9713.

On relief 2, it was argued that this Court should strike out issue one for determination in the Appellant’s Brief of

Argument because it emanated from Ground 2 of the Notice of Appeal which is not premised on the judgment of the lower Court, stating that the issue of whether or not the suit first filed before the High Court of the FCT with Suit No. FCT/HC/CV/3086/2018 was filed out of the time stipulated under Section 285 (9) of the 1999 CFRN as amended (4th Alteration) was never canvassed at the trial Court. The said ground 2 according to the 1st Respondent counsel is defective because it is not supported by competent particulars. The case of FRANCIS SHANU & ANOR VS. AFRIBANK NIG. PLC (2002) 2 NWLR PART 795 PAGE 185 AT 216 was referred to.

On relief three, it was argued that ground 5 of the Notice of Appeal must be struck out because it is barred by virtue of Section 285(9) of the 1999 CFRN as amended (4th Alteration).

On relief four, it was argued that ground 5 of the Notice of Appeal was incompetent because it was not raised within the 14 days period stipulated by the Constitution. It was argued that since the exparte order was delivered on the 18th of December, 2018, the Appellant should have appealed the order within that period. Having

failed to do so, they have lost their right to appeal it. Reference was made to ELABANJO VS. DAWODU (2006)6 7 SC 24.

It was also argued by 1st Respondent’s counsel that ground 6 of the Notice of Appeal did not emanate from the judgment of the trial Court and the details are false and confusing. It was argued that the issue of Section 167 (d) of the Evidence Act 2011 as amended was invoked only against the Appellant and not the respondents at the trial Court. Thus, this ground 6 is full of lies and speculations.

On relief five, it was argued that ground 4 and 8 of the Notice of Appeal with issues four and five for determination which were purportedly distilled from it should be struck out because they raised fresh issues for which leave of Court ought to be sought and obtained. The fresh issues are that the Appellant argued that the 1st Respondent never stated the number of votes he had during the primary election and also, that the reliefs sought at the trial Court were not enforceable. This Court was urged to strike out the said ground. Reliance was placed on OSENI VS. BAJULU (2009) 18 NWLR PART 1172 PAGE 162.

The Appellant, in response to the Notice of Preliminary Objection filed by the 1st Respondent has argued that the entire Notice of appeal is not invalid and incompetent as argued by 1st Respondent’s counsel because the said preliminary objection attacked only six grounds out of the ten grounds of appeal contained in the Notice of appeal. Thus, it is the law that even one competent ground of appeal is enough to sustain an appeal. The case of OTTI & ORS VS. OGAR & ORS (2017) LPELR 41986 was cited. Thus, relief one sought in the Notice of Preliminary Objection must be struck out.

On the relief six of the Notice of Preliminary Objection, the Appellant’s counsel has argued that the Ground nine of the Notice of Appeal emanated from page 883 of Volume II of the Record of Appeal. The Appellant’s counsel has also argued that the 1st Respondent is just raising unnecessary issues which are minor errors and technicalities.

It was also argued that Ground two of the Notice of Appeal emanated from the judgment of the trial Court, pointing to the relevant portions of the judgment. Also, Appellant’s counsel argued that no fresh issue was

raised in the Notice of Appeal as all arguments and issues raised had been canvassed at the trial Court and formed part of the judgment.

In totality, the Appellant urged this Court to dismiss the Notice of Preliminary Objection.

The 1st Respondent filed a Reply on Points of Law to the Appellant’s response to his Preliminary Objection on the 22nd May, 2019. The 1st Respondent’s counsel has argued that the Reply brief filed by the Appellant’s counsel is a repetition of all that has already been argued and urged this Court to strike out all the re-arguments in the Reply brief.

Also, it was argued by the 1st Respondent’s counsel that since the Appellant’s counsel had admitted that there were typographical errors and mistakes in his Notice of Appeal, the Court should strike out the offending grounds.

Also, it was argued by 1st Respondent’s counsel that the Appellant has not shown anywhere in the record of appeal where Suit No. FCT/HC/CV/3086/2018 was declared statute barred as purported in the Appellant’s particulars. Thus, making it amount to presumptions and inferences which is not allowed in our jurisprudence.

The 1st Respondent’s

counsel has argued and insisted that Ground four raised a fresh issue for which leave ought to be sought and obtained. This Court was urged to sustain the 1st Respondent’s objection and strike out grounds four and eight in the Notice of Appeal, including issues 4 and 5 distilled there from.

Finally, this Court was urged to sustain the grounds in the preliminary objection and strike out or dismiss the appeal in limine.

Having reviewed the submissions of learned counsel on the main appeal and the preliminary objection, I will in line in decided authorities proceed first to determine the objection before, if need be, the substantive appeal.

PRELIMINARY OBJECTION
I have read the Notice of Preliminary Objection filed by the 1st Respondent and for what it is worth, I will proceed to resolve same. The 1st Respondent has sought for six reliefs, urging this Court to dismiss the entire Notice of Appeal as being invalid and incompetent.
However, this will be impossible because from the face of the reliefs sought, it is obvious that the 1st Respondent is challenging only six out of the 10 (ten) grounds of appeal. So, even if this Court grants the

reliefs sought, four grounds of appeal will still survive. Thus, the Notice of Appeal cannot be said to be invalid in its entirety. Based on this, relief one sought by the 1st Respondent cannot be granted and it is hereby refused.

On relief two, I have looked at ground two of the Notice of Appeal on the issue of whether or not the Suit No. FCT/HC/CV/3086/2018 was filed out of the 14 days period. I do not agree with the argument of 1st Respondent’s counsel that it was indeed the Appellant’s counsel that was drawing inferences that the said suit was filed out of the time as stipulated under Section 285 (9) of the 1999 CFRN as amended (4th Alteration) and not the learned trial judge. It is my finding that the cause of action accrued on the 2nd of October, 2018 when the primary election took place and the said suit was filed on the 19th of October, 2018. By simple arithmetic, it is clear that it was filed out of time. I will elaborate more on this in my judgment on the main appeal, if need be. Moreover, it is clear from the record of appeal that the learned trial judge had in assuming jurisdiction referred to the suit in FCT/HC/CV/3086/2018. This relief is

also refused.

On reliefs three and four, it is my finding that Ground five of the Notice of Appeal which the 1st Respondent has argued is incompetent because the issue of appealing the ex parte order ought to have been done within the 14 days period stipulated by Section 285 (14) of the 1999 CFRN as amended (4th Alteration) is misconceived. The exparte order made on the 18th of December, 2018 is not being appealed against here. The Appellant simply said that the order made was unknown to actions commenced by way of Originating Summons. It is generally known that Originating Summons is used basically in non-contentious matters.
In the case of PAM VS. MOHAMMED (2008) 16 NWLR PART 1112 PAGE 1, it was held:
“Where the issues are in dispute or are contentious, an originating summon procedure will not lie. In such a situation, the party must initiate the action by a writ of summons, a procedure which accommodates pleadings of facts. An action could be brought by originating summons where the sole or principal question in issue is or likely to be one of construction of a statute, or of any deed, will, contract, or other document or some other questions of law.”

Reference being made to the said exparte order was to buttress the point raised by the Appellant on the issue of the proper originating process that should have been used. The Exparte order was not being appealed against. These reliefs are also refused.

On relief five, I have looked at grounds four and eight of the Notice of appeal and they do not in any way amount to raising fresh issues. These are all issues canvassed at the trial Court. To refresh the mind of the 1st Respondent’s counsel on what amounts to a fresh issue, I will refer to the case of DIRECT ON PC LTD VS. SOF TECHNOLOGIES LTD (2011) LPELR 4042, where it was held that:
“for avoidance of doubt, a fresh issue or point of law is a new point of law which was not raised by any of the parties at the trial court.”

Can the issue as to whether the 1st Respondent declared the number of votes he got at the primary election amount to raising a fresh issue? Definitely not, it is a fact that can be observed by simply perusing the documents filed by the 1st Respondent. This relief is also hereby refused.

On relief six, on the issues of the discrepancies as to nomenclature,

these are just misnomers, errors that are not fundamental at all. I will not allow the 1st Respondent to focus on technicalities. In the Supreme Court case of LAGGA VS. SARHUNA (2008) LPELR 1740, it was held per Muhammad, JSC that:
“No Court should rely on mere technicalities to shut out an intending appellant. That is the practice.”
Also, in the case of VITACHEM (NIG) LTD VS. DSM SINOCHEM PHARMACEUTICALS INDI PRIVATE LTD (2017) LPELR – 43200, it was held that:
“Gone are the days where counsel can use technicalities to halt or stall a matter. The Courts have consistently held that the attitude of the Courts should be towards substantial Justice without undue adherence to technicalities.”

Having looked into all the issues raised in the preliminary objection filed by the 1st Respondent, I do not find any merit whatsoever in it. To me, it is a ploy to waste the time of this Court as the Notice of Appeal is competent. The Notice of Preliminary Objection is hereby dismissed.

THE MAIN APPEAL
After a thorough study of the briefs of argument filed by the Appellant and 1st Respondent respectively, I will proceed to

resolve the issues raised. I hereby adopt the issues for determination raised by the Appellant. They are:
1. Whether this suit is not statute barred having been brought 73days after the act complained of which took place on 02-10-2018, contrary to Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. Whether this suit as filed is cognizable under Originating Summons procedure.
3. Whether in the light and circumstances of this suit, the 1st Respondent has put sufficient evidence before the trial Court to be entitled to the reliefs granted.
4. Whether the learned trial judge was right to have granted reliefs Nos 3 & 4 bothering on publication of the 1st Respondent’s name by the id Respondent when the issue of who was the winner of the primary election on 2/10/2018 was still outstanding and unresolved.
5. Whether the learned trial judge was right to grant to the 1st Respondent reliefs Nos 3 & 4 as ancillary reliefs after refusing the main reliefs Nos 1 & 2 on the ground that “the election into the constitution in issue had already been held.”
6. Whether in the light

and circumstances of this suit, the 3rd Respondent can be held not to be party to which the order exparte made by the trial court will affect.

ISSUE ONE
(1) Whether this suit is not statute barred having been brought 73days after the act complained of which took place on 02-10-2018, contrary to Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

I have read the records of appeal, particularly the Originating Summons, the affidavit in support and I have looked at all the exhibits attached thereto. The case of the 1st Respondent before the trial Court was simple and straight-forward. He was simply asking for the determination of questions arising from the failure of the Appellant to forward his name to the 2nd Respondent even though he was not declared the winner of the primary election of the Delta North Senatorial District Election and was challenging the 2nd Respondent for publishing the name of the 3rd Respondent who was declared winner of the primary elections.

In determining when the cause of action of the 1st Respondent 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 PART 965 PAGE 546, it was held:
“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 case of OGBIMI VS. OLOLO (1993) 7 NWLR PART 304 PAGE 128 at 136, it was held that:
“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 PART 127 PAGE 369 AT 382 – 383;
“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 recent Court of Appeal case of OBIKA VS. OBIKA (2018) LPELR – 43965, it was defined as
“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.”

Enough said, the question that must be answered is; when did the cause of action arise in this instant suit?

This is a pre-election matter and

thus, strict adherence must be made to the provisions of Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No.21) Act 2017. Its provision is crystal clear and unambiguous and it states thus:
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
The Appellant’s counsel has in its brief of argument argued that the cause of action complained of by the 1st Respondent arose on the 2nd of October, 2018 which is the day the primary elections took place. Thus, the filing of the originating summons on the 11th of December, 2018 by the 1st Respondent made the suit statute barred. It was also argued that even the first Suit instituted at the High Court of the Federal Capital Territory, Abuja with Suit No. FCT/HC/CV/3086/2018 was filed out of the 14 days period. This is because it was filed on the 19th of October, 2018, making it 4 days out of the time stipulated.
The 1st Respondent had in paragraphs 13 of his affidavit in support deposed to the

fact that:
“13. After the election and counting of the votes, it was obvious that I had scored the majority of the votes cast, but the 3rd Defendant and his hired thugs and agents caused a problem which led to a stampede and the results were duly written with votes that were not cast were awarded.”
The 1st Respondent went further to state in paragraph 14 that the result of the primary election was a sham and a fraud.
Also, he deposed in paragraph 15 to the fact that Exhibits C and D attached to his affidavit in support clearly showed discrepancies as to the number of delegates and signatories that participated in the primary election. Thus, regarding the entire primary election as a fraud.
The 1st Respondent however stated in paragraph 16 of his affidavit in support of the Origination Summons that during the counting of the votes to the hearing of all present, he won the election. Furthermore, in paragraph 18, he deposed that “it is obvious that INEC and the 2nd and 3rd Defendants acted in concert to deny me my victory, which I clearly won.”
In paragraph 19,20,21 and 22 of his Affidavit in Support,

the 1st Respondent further stated thus:
“19. That I have been informed by my learned counsel, Ahmed Raji, SAN at his chambers at No.10 Santana Close, Wuse 2, Abuja on 10/12/2018 at 1.42pm and I verily believe him that:
a) The best way to ascertain the truth of the result and establish my victory conclusively is for the ballot papers used in the election to be produced before this Honourable Court and counted in the course of proceedings.
b) The documents emanating from the 2nd Defendant show serious state of confusion which can only by a resort to the ballot papers used in the said election so that the truth can be arrived at.
20. That although I made a protest to the 2nd Defendant to the knowledge of the 1st Defendant, the 2nd Defendants’ purported Appeals Panel failed to look at the complaint after it avoided its duty came out with a funny report that the petition did not reach them within 24 hours and so did not want to address the wrong done to me.
21. That I immediately made my position known to the 1st Defendant that I would not accept whatever that was done in violation of law.
22. That when my protest to the 1st Defendant

appeared to be falling on deaf ears, I had to rush to the High Court of the Federal Capital Territory to get an order to restrain the 1st Defendant from displaying the name of the 3rd Defendant as the candidate of the 2nd Defendant.
23. Despite the order of the Court, the 1st Defendant has continued to display the purported particulars of the 3rd Defendant when the world knows that the 3rd Defendant never won the Primary Election of the 2nd Defendant for the Delta North Senatorial District.”
From the above reproduced paragraphs of the affidavit in support of the Originating Summons, one question that comes to mind is that; what exactly was the 1st Respondent complaining of at the trial Court?
A close look at the said paragraphs will show that the 1st Respondent was aggrieved at the conduct of the primary election which he referred to as being a “sham” and “a fraud”. The 1st Respondent emphatically stated that the 3rd Respondent brought thugs and agents to prevent the genuine results of the primary election being declared. He even admitted that he filed an Appeal before the Appeal Panel of the Appellant, seeking that they “address the wrong done

to me.” And also, he made his position known to the 2nd Respondent INEC, refusing to accept “whatever that was done in violation of law.”
It is my finding that the act vehemently complained about by the 1st Respondent as displayed in his affidavit in support of the originating processes is the primary elections which took place on the 2nd of October, 2018. This is further shown by Exhibit C1 which is the Appellant’s Result of the Senatorial Primary Election wherein it was stated that the 3rd Respondent scored 506 votes and the 1st Respondent had 453 votes. Based on this said report, he filed an appeal before the Appeal Panel of the Appellant who issued a Report marked as Exhibit E1 wherein it was stated that:
“At the end of the Senatorial District Primary election on 2nd October, 2018 and as at 11.59pm on 3rd October, 2018, the Appeal Panel received no petition from any of the aspirants. However, it should be noted that at about 1pm on 4th October, 2018, a petition was forwarded by Hon. Ned Nwoko against the declaration of Senator Peter Nwaobashi as winner of the Delta North Senatorial District.”
The arguments of the 1st Respondent’s counsel

that the cause of action arose during the publication of the name of 3rd Respondent by the 2nd Respondent and a fresh cause of action arose each time there was another publication is ridiculous and unheard of. The issue of the publication of the name of the 3rd Respondent as the candidate of the Appellant is a natural consequence of the fact that he emerged and was declared winner of the primary election. The 1st Respondent cannot be heard challenging the publication when he has decided to keep mute or failed to ensure the issue of who actually won the primaries is resolved. If the 1st Respondent has decided within himself not to be bothered about who won the primary election, he has no right to be bothered about or to challenge who is published as the candidate by the 2nd Respondent. The publication is contingent on who emerged winner of the primary election. The ratio decidendi in the celebrated case of MACFOY VS. UAC (1961) 3 NWLR PART 405 AT 1409 which states that:
“You cannot put something on nothing and expect it to stand, it must fall” is the situation here.
It is my finding that the 1st Respondent admitted in paragraph 22 of the

affidavit in support of the Originating summons that he instituted an action at the High Court of the Federal Capital Territory in Suit No. FCT/CV/3086/2018 seeking for an order to restrain the 2nd Respondent from displaying the name of the 3rd Respondent as the candidate of the 2nd Defendant. The said order was annexed and marked as Exhibit F.
A quick perusal at the Exhibit F will show the reliefs the 1st Respondent was seeking before the Court. The summary of the 5 reliefs sought was to restrain the 2nd Respondent from acting on the result of the primary election, restrain the 2nd Respondent from recognizing and publishing the 3rd Respondent as the winner of the primary election. What was the 1st Respondent’s grievance in this suit? It is clearly the primary election and who was declared winner.
I will totally disregard the submission of the 1st Respondent counsel that the cause of action accrued when the 2nd Respondent published the name of the 3rd Respondent and each time such publication was made, a fresh cause of action arose and even that a fresh action arose as at the 17th of January, 2019 when the matter at the trial Court had already been

instituted.
I agree absolutely with the argument of Appellant counsel in its reply brief that the phrases “continuous injury” is applicable in tortuous actions and not in actions wherein time is stipulated and must be strictly adhered to like pre-election and election matters. I also totally agree with the decision in the case of KUMO VS. BARAMBU & ORS (2019) LPELR 47069 (CA) cited by the Appellant case where it was held that:
“The relevant limitation of action provision in the instant case is Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended by the fourth Alteration No 21 Act of 2017). It reads 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.” It is not in dispute that action of the nature filed by the 1st Respondent in the lower Court is a pre election matter and it comes within the classes of cases covered by the above provision. It is settled law that the period of time prescribed by a statute of limitation begins to run the

moment a cause of action accrues to the person entitled to it. Thus, when dealing with a limitation statute, it is of utmost importance to ascertain the exact date of accrual of a cause of action. A cause of action consists of every fact which would be necessary for a claimant to prove, if tranversed, in order to support his right to judgment. It is the bundle or aggregate of facts which the law recognizes as giving the claimant a substantive right to make a claim for the relief or remedy being sought..”
From the above cited case, one thing is clear: the date the cause of action can be said to have arisen in pre-election matters must be exact, clear and undisputable. It cannot be changing and be refreshed by each act an aspirant finds offensive.
On the issue raised by the Appellant in paragraph 2.14 sub-paragraph (v) that the Suit No. FCT/HC/CV/3086/18 was not withdrawn per se for being filed in the wrong Court but because it was statute barred, I have looked at the reliefs sought in the said suit. As earlier decided and resolved by me, this is a pre election matter wherein the 1st Respondent at the trial Court was basically challenging the primary

elections. The primary election took place on the 2nd of October, 2018 and the suit No- FCT/HC/CV/3086/18 was filed on the 19th of October, 2018. Thus, it was filed about 4 days out of time.
The provisions of Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No,21) Act 2017 is clear and straightforward and it states thus:
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14days from the date of the occurrence of the event, decision or action complained of in the suit.”
The 1st Respondent has argued that the said Suit No. FCT/HC/CV/3086/18 was not statute barred as he had filed an appeal before the Appeal Panel of the Appellant and he got the report of the Appeal Panel refusing to hear his appeal on the 7th of October, 2019 and thus, time will start counting from then.
This argument of the 1st Respondent is unknown to law. The question to be asked is; when did he get to know that he was not declared winner of the primary election? It was on the 2nd of October, 2018. From the reliefs sought, the complaint of the 1st Respondent is

the primary election and the natural consequence of the publication of the 3rd Respondent’s name. The 1st Respondent was not challenging the decision of the Appeal Panel. The 14 days period started to count against the 1st Respondent on the 2nd of October, 2018 when the cause of action arose.
It is my finding that the cause of action arose on the 2nd of October, 2018 notwithstanding any further act complained of by the 1st Respondent. The issue of who won the primary election is the basic cause of action and all other acts complained of are extraneous issues that can only be used to fatten up the case of the 1st Respondent for trial.It is trite law that actions commenced by originating summons are decided on affidavit evidence alone. See BALONWU VS. OBI (2007) 5 NWLR PART 1028 PAGE 488. Thus, in determining the issue of jurisdiction and cause of action in this suit, only the affidavit in support of the Originating Summons will be considered. 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 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 PART 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 1st Respondent on this issue cannot take the place of the evidence conveyed by the affidavit in support of the Originating summons.
From the affidavit in support of the Originating Summons, the report of the Appeal Panel is not the cause of action in this suit but the primary election which held on the 2nd of October, 2018. Therefore, the filing of the Suit No. FCT/HC/CV/3086/18 before the High Court of the Federal Capital Territory on the 19th of October, 2018 was statute barred, for being filed after the 14 days period stipulated by Section 285 (9) of the Constitution of the Federal Republic of Nigeria (1999) 4th Alteration.
Needless to say that the striking out of the said suit on the 10th of December, 2018 and the subsequent re-filing of

the suit with Suit No. FHC/ABJ/CS/1524/18 on the 11th of December, 2018 did not in any way revive the lifeless situation of the matter. The findings of the trial judge on pages 877-880 where he cited the case of SIFAX (NIG) LTD VS. MIGFO (WIG) LTD (2018) 9 NWLR PART 1623 where it was held that the earlier suit filed by the 1st Respondent cannot be dead but is alive and it can be resuscitated when the suit was re-filed at the trial Court with requisite jurisdiction to entertain the suit and time spent at the wrong Court cannot be counted and he based his conclusion on this, is ridiculous and misconceived. Once a suit is statute barred, there is no cure for its deficiency.
The earlier suit already deemed statute barred cannot be resuscitated with the filing of the latter suit. It is my finding that the suit giving rise to the instant appeal is statute barred.

The 1st Respondent has also argued that his complaint is against the substitution and publication of his name with that of the 3rd Respondent. He has argued that with each fresh publication, a new cause of action accrued. He further argued that the 2nd Respondent is prohibited from changing or

substituting the name of the person who won the primary election from a person who did not win. The question that readily comes to mind is: What is substitution and who can validly complain of being substituted?
I will hereby resolve same by referring to the Supreme Court case of UGWU VS. ARARUME (2007) 12 NWLR PART 1048 PAGE 365, where Onnoghen, JSC, defined the word “Substitution” thus:
“On the other hand, substitution is defined at page 1471 of the said Black’s law Dictionary thus; – 1. A designation of a person or thing to take the place of another or thing. 2. The process by which one person or thing takes the place of another person or thing.”
The underlying principle in the interpretation of statute is that the meaning of the statute or legislation must be collected from the plain and unambiguous expressions or words used therein rather than from any notions which may be entertained as to what is just and expedient. The literal construction must be followed unless this would lead to absurdity. See LAWAL VS. G.B. OLLIVANT (1972) 3 SC 124.
In the case of ONASHILE VS. IDOWU (1961) ALL NLR 313, it was held that:
It is the duty of the

judge to construe the words of a statute and give those words their appropriate meaning and effect.”
Finally, in the case of GARBA VS. FCSC (1988) 1 NWLR PART 71 PAGE 449, it was held:
“the words in a statute are primarily used in their ordinary grammatical meaning or common or popular sense and generally as used as they would have been ordinarily understood.”
In the instant appeal, the 1st Respondent has said that his name was substituted with that of the 3rd Respondent because he was the winner of the said primary election. However, the 1st Respondent has failed woefully in proving that he won the primary elections. He admitted in his affidavit in support that he filed an appeal before the Appeal Panel of the Appellant, challenging the outcome of the primaries but the Appeal Panel did not hear the said appeal. As it stood at that time, the issue of who won the primary election was still unresolved as far as the 1st Respondent was concerned. To determine whether there was a substitution, these questions must be answered: Who won the said primary election? Who had the highest votes and was declared the winner of the primary election? Whose name

was submitted to the commission? Whose name ought to have been submitted?
From the affidavit evidence, the 3rd Respondent won the election and by law, his name ought to have been submitted to the Commission and it was indeed his name that was submitted to the 2nd Respondent. There was no substitution or replacement of name whatsoever. The 3rd Respondent never “took the place” of the 1st Respondent when his name was submitted to the 2nd Respondent.

In totality, I find merit in the first issue for determination raised by the Appellant. This issue is hereby resolved in favour of the Appellant. The issue being a jurisdictional matter has determined the appeal.
Delving into the other issues raised in the appeal will be regarded as an academic exercise.
In the Supreme Court case of PLATEAU STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR PART 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 recently decided Supreme Court case of AKEREDOLU VS. ABRAHAM (2018) 10 NWLR PART 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 PART 1628 PAGE 485 AT 496, it was held per Rhodes-Vivour, .JSC that:
“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.”

The Appeal is allowed. The judgment of the trial Court dated the 3rd of April, 2019 is hereby set aside and the case at the trial Court is hereby struck out. There is no order as to cost.

ADAMU JAURO, J.C.A.: I was afforded a copy of the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA. I am in full agreement with the reasoning and conclusion contained therein to the effect, that the appeal is meritorious and should be allowed.

I adopt the said judgment as

mine, in allowing the appeal and abide by all consequential orders made.
Appeal Allowed.

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 parties herein do not agree on the date the cause of the action in Suit No. FHC/ABJ/CS/1524/18 accrued and consequently do not agree on whether the suit was filed outside the 14 days prescribed by S.285(9) of the Constitution of the Federal Republic of Nigeria 1999 as amended by the 4th Alteration.

From the arguments of both sides, three dates have popped up as the dates the cause of action accrued. The first date is 2-10-2018, the date the appellant herein held its primary election of its candidate for the general election of Senator representing Delta North Senatorial District. The second date is 7th or 9th October 2018, when the Electoral Appeal Panel conveyed its decision to the National Working Committee of the 3rd respondent by its report dated 5-10-2018. The third date is 17-1-2019, the date the 2nd respondent was to

publish the list of candidates for the impending general election. Learned SAN for the 1st respondent also argued that the continuous display by the 3rd respondent herein of the name of the appellant as its candidate for the election from October 2018 was a continuing cause of action.

After the Appeal Panel decision, the 1st respondent herein on 19-10-2018, filed Suit No. FCT/HC/CV/3086/2018 at the Federal Capital Territory (FCT) High Court against the appellant, 2nd and 3rd respondents herein as defendants. The writ of summons and statement of claim and witness statement on oath in the said suit No. FCT/HC/CV/3086/2018 are attached to and exhibited as Exhibit PDP7 with the counter affidavit in opposition to the Originating Summons deposed to and filed on behalf of 3rd respondent herein in Suit No. FHC/ABJ/CS/1524/2018.

The said writ of summons and statement of claim are reproduced in pages 104 – 116 of the record of this appeal. The reliefs claimed for in the writ and statement of claim are as follows-
“a. A DECLARATION that the Plaintiff is the rightful winner of the PDP 2018 Delta North Senatorial primary election conducted on the 2nd

of October 2018 by virtue of majority of lawful votes cast.
b. AN ORDER directing the 1st Defendant to forward the name of the Plaintiff to the 3rd Defendant as the candidate of the 1st Defendant for Delta North Senatorial District.
c. In the event that the name of any person other than the Plaintiff is forwarded to the 3rd Defendant before the determination of the suit, an Order of the Court nullifying such exercise and directing the 1st Defendant to forward the name of the Plaintiff to the 3rd Defendant as the candidate of the 1st Defendant for Delta North Senatorial District.
d. AN ORDER of injunction restraining the 2nd Defendant either by himself, agents, cronies, privies, servants and/or supporters from parading and/or holding himself out as the winner of the PEW 2018 Delta North Senatorial primary election conducted on the 2nd of October, 2018.
ALTERNATIVELY, in the event that the name of the 2nd Defendant is forwarded to the 3rd Defendant as the candidate of the 1st Defendant before the determination of this suit:
e. A DECLARATION that the Plaintiff is the rightful winner of the PDP 2018 Delta North Senatorial primary

election conducted on the 2nd of October 2018 by virtue of majority of lawful votes cast.
f. A DECLARATION that the Plaintiff is the rightful candidate of the 1st Defendant for the 2019 Delta North Senatorial District Election.
g. AN ORDER of Court nullifying any certificate of Return issued to the 2nd Defendant by the 3rd Defendant.
h. AN ORDER of Court directing the 3rd Defendants to issue certificate of Return to the Plaintiff being the rightful candidate of the 1st Defendant.”
Paragraphs 5 to 10 of the statement of claim in that suit aver that-
5. The Plaintiff avers that unfortunately, the said primary election conducted by the 1st Defendant was marred by colossal compromise and connivance although the plaintiff had earlier protested against some glaring compromise and connivance on the part of the Electoral Committee in the process, which compromise and connivance include but not limited to the following.
a. The list of elected delegates was not published at least 48 hours before the commencement of the purported primary election as required by the 1st Defendant’s Party Guidelines even when the Plaintiff

requested for same.
b. In gross violation of the 1st Defendant’s Guidelines which prohibits the canvassing of votes in an election within 300 metres of the polling units, the Deputy Speaker of the Delta State House of Assembly, Rt. Hon. Friday Ossai Osanebi was seen openly campaigning vigorously for the 2nd Defendant on the election ground in an intimidating manner which greatly swayed votes to the 2nd Defendant even when he was asked to stop by the 3rd Defendant official Mrs. Nwando.
c. The chairman of the 1st Defendant in the Senatorial District Mr. Moses Iduh in connivance with 2nd Defendant’s supporters threatened and coerced the elected delegates to vote in favour of the 2nd Defendant or face consequences.
d. The Chairman of Oshimili South Local Government, Mr. Dada Okonji openly threatened delegates from the Local Government that they will be visited with punitive measures and severe repercussions if they failed to vote for their preferred candidate in the person of the 2nd Defendant.
e. Five (5) of the Ward Chairmen were compelled by Mr. Dada Okonji to vote against their conscience and later came to apologized to

the Plaintiff that they were forced to do so for fear of their lives on account of the threat from Mr. Dada Okonji.
f. The committee duly set up by the 1st Defendant did not observe the said Guidelines, but instead prevented duly elected delegate from having access to delegate tags and gave same to persons other than the delegates in the conduct of the primary election with a view to favouring their preferred candidate in the person of the 2nd Defendant.
g. In a view to subvert the election process and achieved a premeditated outcome,the Electoral Committee upon conclusion of the accreditation refused to announce the total number of accredited delegates as required before commencement of voting.
h. After persistence from the agents and supporters, the Electoral Committee announced the total number of accredited delegates as 1,380 (One Thousand Three Hundred and Eighty).
That no accredited delegate was absent during the election but curiously, the figure that was announced by the Electoral Committee was 1175 (One Thousand One Hundred and Seventy-Five including void vote instead of 1,380 (One Thousand,

Three Hundred and Eighty).
j. The total number of votes including void votes was 1,380 (One Thousand, Three Hundred and Eighty) but the Electoral Committee after the dubious manipulation hurriedly announced 1175 (One Thousand One Hundred and Seventy Five and as part of the manipulative contrivance failed, refused and neglected to count or take into account a total number of 186 (One Hundred and Eighty Six) votes which votes were cast in favour of the Plaintiff and which would have swayed the result in favour of the Plaintiff. The Plaintiff shall at the hearing rely on the ballot papers and same is hereby pleaded.
k. The 19 (Nineteen) votes declared to be void votes were all in favour of the Plaintiff arising from wrong spelling of the Plaintiff’s name. Instead of NED, some delegates wrote NID and NAD. Similarly, instead of Prince Nwoko some wrote Prince Nwokolo. The spelling mistakes were inconsequential as they did not mislead anyone as to who the vote was cast and not sufficient to render the votes void yet the Electoral Committee instead on counting them as void votes to the detriment of the Plaintiff.
I. During the time of counting and sorting

of votes, it was discovered that some of the ballot papers that carried the votes of the 2nd Defendant were written with one particular handwriting.
m. The agents of the Plaintiff protested the refusal of the Electoral Committee to count the 186 votes and demanded that same be counted but the Committee ignored the same protest.
n. The result sheet that purportedly declared, the 2nd Defendant winner of the election was not signed by the Agent of the Plaintiff. The result shall be founded upon at the trial.
o. In gross violation of the provisions of the Guidelines, most of the delegates who voted for the 2nd Defendant did not cast their vote on the table provided for the purpose as they came in with already written ballot papers.
p. A large number of the votes cast for the plaintiff were rejected by the Electoral Committee on the strange reason that they had spelling errors while those cast for the 2nd Defendant with similar errors were counted in favour of the 2nd Defendant.
q. The delegate tags which were supposed to be in custody of the Electoral officials and given to delegates upon accreditation were kept in the bedroom of the

supporters of the 2nd Defendant from where they gave same to the imported delegates who illegally voted in favour of the purported winner of the election. The pictures showing the delegate list on the bed shall be founded upon at the trial.
r. There was massive over-voting in favour of the purported winner of the primary election as hired and imported delegates were allowed to take over the entire scenario whilst unlawfully casting their illegal votes in favour of the purported winner (2nd Defendant) while some of the duly elected delegates could not get their accreditation tag as same was given to the imported delegates who voted in favour of the 2nd Defendant.
s. To conceal the said irregularities, the Electoral Committee constituted by the 1st Defendant to conduct the said primary refused to let the plaintiff’s agents see the recorded result of the election as they simply ascribed the highest number of votes purportedly cast to the 2nd Defendant.
6. In the result declared by the Electoral Committee, the difference between the purported winner and the Plaintiff is 53 votes and if the 186 (One Hundred and

Eighty-Six) votes which votes were cast in favour of the Plaintiff but not counted by the Electoral Committee as well as the 19 (Nineteen) votes declared to be void votes which were all in favour of the Plaintiff are taken into account, the Plaintiff is clearly the winner of the primary with a total of 658 (Six Hundred and Fifty Eight) votes instead of the 453 (Four Hundred and Fifty Three) votes unilaterally ascribed to the Plaintiff by the Electoral Committee.
7. In the face of the obvious compromise from the Electoral Committee in favour of the purported winner, the Plaintiff wrote a petition to the Senatorial District Electoral Appeal Committee on the 3rd of October 2018 but the said Appeal Committee hid away from the Plaintiff thereby making it practically impossible for the Plaintiff to submit the petition within the period of 24 hours after the election.
8. The plaintiff through his Solicitor cause a formal complaint to be lodged at the National Secretariat of the 1st Defendant complaining about the conduct of the Appeal Committed. The complaint submitted on the 4th of October 2018 shall be founded upon at

the trial and same is hereby pleaded.
9. The 3rd Defendant that monitored the exercise issued a report wherein it clearly stated that all efforts by the 3rd Defendant to obtain the Delegates list, Contestants list, Party Guidelines, Party Electoral Committee proved abortive as the Electoral Committee in a bid to declare a Result favourable to the 2nd Defendant refuse to allow the officials of the 3rd Defendant access to same. The report of the 3rd Defendant shall be founded upon at the trial and same is hereby pleaded.
10. In spite the foregoing, the 1st and 3rd Defendant have concluded arrangement following sustained pressure mounted on them (1st and 3rd) by the 2nd Defendant, to validate the purported primary election and accord recognition to the 2nd Defendant as the winner of the said purported 2018 PDP Delta North Senatorial Primary purportedly conducted on the 2nd of October 2018 by reason of which the plaintiff is dissatisfied and greatly aggrieved.

On 10-12-2018, the 1st respondent herein, withdrew the said suit without giving reasons and it was struck out by the Federal Capital Territory High Court.

On 11-12-2018, the 1st respondent

commenced this Suit No. FHC/ABJ/CS/1524/2018 in the Federal High Court claiming for-
1. A DECLARATION that the Plaintiff having contested and won the Primary Election of the 2nd Defendant (PDP) in respect of the Delta North Senatorial District for the 2019 General Election is the only person whose name should be published as the candidate of the 2nd Defendant (PDP) in respect of the Delta North Senatorial District
2. A DECLARATION that the action of the 1st Defendant in displaying and/or publishing the 3rd Defendant who contested and lost the Primary Election of the 2nd Defendant in respect of the Delta North Senatorial District is unconstitutional, null, void and of no effect in law.
3. AN ORDER directing the 1st Defendant to immediately publish the name of the Plaintiff who won the Primary Election of the 2nd Defendant (PDP) in respect of the Senatorial Election slated for 2019 as the authentic candidate of the 2nd Defendant for Delta North Senatorial Election.
4. AN ORDER of perpetual injunction restraining the 3rd Defendant from parading himself as the PDP candidate for the Delta North Senatorial Election scheduled to hold in 2019.”<br< p=””>

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The affidavit in support of the originating summons in paragraphs 11 to 27 deposed as follows-
11. The Electoral Committee set up by the 2nd Defendant abysmally failed to comply with the Guidelines for the primary election, but instead presented duly elected delegates from having access to delegate tags and gave same to persons other than the delegates, with a view to unduly favouring their preferred candidate in the person of the 3rd Defendant, against the hallowed principle of internal democracy enshrined in the 2nd Defendant’s Constitution, Guidelines and the Electoral Act.
12. In a desperate bid to subvert the primary electoral process and achieve a premeditated outcome thereof, the 2nd Defendant’s Electoral Committee upon conclusion of the accreditation of delegates, refused to announce the total number of accredited delegates as mandatorily required, before commencement of voting.
13. After the election and counting of the votes, it was obvious that I had scored the majority of the votes cast, but the 3rd Defendant and his hired thugs and agents caused a problem which led to a stampede and the results were duly written with votes that

were not cast were rewarded.
14. That in order to demonstrate that the result which was produced from the said Primary Election was a sham and a fraud. I herewith annex two (2) copies of two different results produced by the 2nd Defendant having different serial numbers and different entries in them. The said results are:
a. Serial No: 00129 Attached as Exhibit C
b. Serial No: 00029 Attached as Exhibit D
15. That from Exhibit C and D attached above, the following salient facts are obvious on the face of the Exhibits:
a. The number of accredited delegates are different on the two documents.
b. The number of void votes are different on the two documents.
C. The number of signatories is different on the two documents.
d. The names of the purported Electoral Officer and Returning Officer are interchanged on both documents.
e. There is no person known and called PAUL OSAGIE who contested the primary election.
16. That I know that from the facts stated and enumerated above, even the 2nd Defendant does not have an accurate record of what transpired during the Primary Election since

from the counting of ballots which was done to the hearing of all present, I won that election.
17. That I know the 1st Defendant only came to act out a script by purporting to write a report to favour the 3rd Defendant against the Plaintiff (My humble self) but the 1st Defendant admitted that;
“Up to the time of the submission of this report, all efforts to obtain the Delegates List, Contestants List, Party Guidelines, Party Electoral Committee, Party Constitution and Agenda proved abortive.”
18. That it is obvious that INEC and the 2nd and 3rd Defendants acted in concert to deny me my victory, which I clearly won.
19. That I have been informed by my learned counsel, Ahmed Raji, SAN at his Chambers at No. 10, Santana Close, Wuse Abuja on 10/12/2018 at 1:42pm and I verily believe him that:
a. The best way to ascertain the truth of the result and establish my victory conclusively is for the ballot papers used in the election to be produced before this Honourable Court and counted in the course of proceedings.
b. The documents emanating from the 2nd Defendant show serious state of confusion which can only be resolved by a resort to

the ballot papers used in the said election so that the truth can be arrived at.
20. That although I made a protest to the 2nd Defendant to the knowledge of the 1st Defendant, the 2nd Defendants’ purported Appeals Panel failed to look at the complaint after it avoided its duty came out with a funny report that the petition did not reach them within 24 hours and so did not want to address the wrong done to me. Exhibit E is the said report.
21. That I immediately made my position known to the 1st Defendant that I would not accept whatever that was done in violation of the law.
22. That when my protest to the 1st Defendant appeared to be falling on deaf ears, I had to rush to the High Court of the Federal Capital Territory to get an order to restrain the 1st Defendant from displaying the name of the 3rd Defendant as the candidate of the 2nd Defendant. Herewith annexed as Exhibit F is a copy of the order made by the FCT High Court in Suit No. FCT/1-1C/CV/3086/2018.
23. Despite that order of the Court, the 1st Defendant has continued to display the purported particulars of the 3rd Defendant when the world knows that the 3rd

Defendant never won the Primary Election of the 2nd Defendant for the Delta North Senatorial District.
24. That the action of the 1st Defendant in refusing to publish my name but instead, displaying the name and particulars of the 3rd Defendant has continued to inflict continuous injury on me as the rightful candidate of the 2nd Defendant for the Delta North Senatorial District of Delta State in the General Election scheduled for 2019.
25. That I know as a fact:
a. Only the winner of the Primary Election can have his particulars displayed and accepted as candidate for an election.
b. The final publication of candidates will be done sometime in January 2019 or thereabout and I have a right to have that final publication carrying my name and particulars.
c. The 3rd Defendant lost the Primary Election and he cannot have his name displayed and he cannot be published in the final list of candidates as the candidate of the 2nd Defendant in respect of the Delta North Senatorial District of Delta State.
26. That in consequence of the totality of the foregoing, particularly the 1st Defendant’s acceptance and continued recognition of

the 3rd Defendant as the winner of the purported primary election and 2nd Defendant’s candidate for the forthcoming 2019 general election in respect of Delta Korth Senatorial District, I have sought for and received legal advice from very senior learned Counsel who upon my instruction, has now commenced this action which has led to colossal expenses in professional fees.
27. That it is in the interest of Justice to grant the Reliefs sought as per the Substantive Suit.

The appellant and 3rd respondent herein argued at the trial that the cause of action accrued on 2-10-2018, when the primary elections held and the appellant herein was declared winner of that election. The 1st respondent herein contended at the trial that the cause of action accrued on 7th or 8th October, 2018, when the Electoral Appeal Panel of the appellant submitted its report dated 5-10-2018 to the NWC of the appellant or from 3rd October 2018 when the appellant started displaying respondent’s name as the winner of its primary election and its candidate for the said general election.

The trial Court determined the question whether the suite was statute barred, thusly- “On issue

(a) above, all the respective counsel are in agreement that the primary election in issue took place on 2/10/18. It is also not in dispute that the present suit was instituted on 11/12/18. Learned Counsel to all the Defendants have submitted that the Defendants have submitted that the Plaintiff is challenging the outcome of the 2nd Defendant’s primary election which took place on 2/10/2018 and that in consequence therefore, this action ought to have been commenced within 14 days from and including 2/10/18. That having failed to commence the action within the period prescribed, it is statute barred.
On the other hand, learned senior counsel for the Plaintiff has argued that the Plaintiff is not contesting the outcome of the primary election in issue but the wrongful submission of the 3rd Defendant’s name to the 1st Defendant by the 2nd Defendant as the candidate of the 2nd Defendant when the 3rd Defendant did not emerge the winner and the continuous publication of the 3rd Defendant’s name as the candidate of the 2nd Defendant in the 2019 general election for the constituency in issue.
I have gone through the originating processes (originating summons)

filed by the Plaintiff. The Plaintiff has deposed in paragraphs 22 and 23 of the affidavit in support of the originating summons as follows:
22. That when my protest to the 1st defendant appeared to be falling on deaf ears, I had to rush to the High Court of the Federal Capital Territory to get an order to restrain the 1st Defendant from displaying the name of the 3rd Defendant as the candidate of the 2nd defendant. Herewith annexed as Exhibit F is a copy of the order made by the FCT High Court in Suit No. FCT/CV/ 3086/ 2018.
23. Despite that order of the Court, the 1st Defendant has continued to display the purported particulars of the 3rd Defendant when the world knows that the 3rd Defendant never won the primary election of the 2nd Defendant for the Delta North Senatorial District.
The fact of the institution of the Plaintiff’s suit before the FCT High Court were admitted by the 2nd Defendant in paragraph 26 of it’s counter affidavit in opposition to the originating summons. The 2nd Defendant even went on the Exhibit PDP9 which clearly shows that the suit before the FCT High Court was withdrawn and struck out on 10/12/18.
This suit was

instituted on 11/12/18, a day after the withdrawal and striking out of the suit before the FCT High Court.
In View of the above uncontested facts, can this suit be held to be statute barred? The answer to the above question is readily available in the case of ADDAX PET. DEV. (NIG) LTD VS. EMEF INTERNATIONAL OPERATIONS (2012) ALL FWLR PART 621, 1585 wherein it was held that the earlier suit filed has revived the refilling and took effect from the date the action was filed in the High Court. Applying the above position of the law to the instant suit, the filing of the present suit on 11/12/18 has revived the earlier suit filed before the High Court of the FCT. See also the case of SIFAX (NIG) LTD VS. MIGFO (NIG) LTD (2018) 9 NWLR PART 1623, 138 at pages 182 183, paragraphs G-B paragraph E. where it was held as follows:-
“Striking out the Plaintiff’s/Appellant’s action does not finally determine the respective rights in the dispute placed before the trial Court for determination. In this situation, where the claims or rights of the parties have not been examined or looked into by the trial Court and appropriate findings made

thereon resulting in a determination, these claims or rights remain effectively pending and can be reviewed by any of the parties in any other Court of concurrent jurisdiction or even the same Court that handed down the striking out order for relisting under the appropriate Rules of the trial Court.”
In other words, where a suit is struck out, the Plaintiff has another opportunity to commence action after curing the deficiency, when resulted in the striking out of the suit- ALOR VS. NGENE (2007) 12 NWLR PART 1062, 163 at 179 SC.”
In page 185 paragraph E of the above case, it was further held as follows:-
“The earlier suit filed by the Respondent cannot be dead; it is alive and so it can be resuscitated, which was what Respondent achieved, when they filed this suit at the trial Court with the requisite jurisdiction to entertain this matter, and the time spent at the wrong Court cannot be counted; it was suspended.”
See also the unreported case of BAUCHI STATE JUDICIAL SERVICE COMMISSION & 2 ORS VS. EMMANUEL S. DANJUMA Appeal No. CA/3/222/2012 delivered on 28/5/15 at pages 24-25 thereof. I am therefore of the view that

this suit is not statute barred.”

It is glaring from the depositions in the 1st respondent’s affidavit in support of the originating summons that commenced the suit leading to this appeal that the suit was brought because the 1st respondent was not satisfied with the process and result of the primary election and disputed the results of the said primary election. So the suit was brought primarily to challenge the result of the said primary election. This position is more clearly brought out by his depositions in paragraphs 13, 14 and 19 of his said affidavit thusly-
13. After the election and counting of the votes, it was obvious that I had scored the majority of the votes cast, but the 3rd Defendant and his hired thugs and agents caused a problem which led to a stampede and the results were duly written with votes that were not cast were rewarded.
14. That in order to demonstrate that the result which was produced from the said Primary Election was a sham and a fraud. I herewith annex two (2) copies of two different results produced by the 2nd Defendant having different serial numbers and different entries in them<br< p=””>

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xxxxx
19. That I have been informed by my learned counsel, Ahmed Raji, SAN at his Chambers at No. 10, Santana Close, Wuse 2, Abuja on 10/1212018 at 1:42pm and I verily believe him that:
a. The best way to ascertain the truth of the result and establish my victory conclusively is for the ballot papers used in the election to be produced before this Honourable Court and counted in the course of proceedings.
b. The documents emanating from the 2nd Defendant show serious state of confusion which can only be resolved by a resort to the ballot papers used in the said election so that the truth can be arrived at.

So the primary and central issue in controversy in the suit is whether the result of the primary election of 2-10-2018 that declared the 3rd respondent the winner of the election and the candidate of the 3rd respondent for the general election of senator for Delta North District is not the correct result of the election and is a sham and that the 1st respondent and not 3rd respondent should have been declared the winner of that election. It is this question that the trial Court must decide so as to

determine whether the appellant was right to have displayed and published the name of the appellant as its candidate for the said general election. It is obvious that the cause for this action is the process and result of the primary election of 2-10-2018.
By virtue of S.285(9) of the 1999 Constitution as amended by the 4th Alteration, the suit brought to challenge the process and result of that primary election, must be brought within 14 days from the date of the occurrence of the event, which is 2-10-2018. Contrary to the above provision, this suit was filed on 11-12-2018, 71 days after 2-10-2018.
It is clear from the judgment of the trial Court, that it was influenced into deciding that this suit filed on 11-12-2018 was not statute barred by its view that this suit filed on 11-12-2018 is a revival of the earlier suit No. FCT/CV/3086/2018 filed by 1st respondent on 19-10-2018 at the Federal Capital Territory High Court and struck out by that Court and therefore relates or dates back to the date the earlier suit was filed.
This view of the trial Court is completely wrong for the following reasons. Firstly, assuming it is correct that it revives

and relates back to the date the earlier suit was filed, which is 19-10-2017, it would be statute barred because the earlier suit filed in the Federal Capital Territory High Court on 19-10-2017, was filed on the 18th day from the 2-10-2018, the date of the primary election. So that suit was abinitio statute barred. So relating this suit filed on 11-12-2018 to the date of filing the suit at Federal Capital Territory would not save it from being statute barred. Secondly, a subsequent suit commenced after the striking of an earlier suit for the same cause, cannot avoid being caught by a statute of Limitation by relying on the fact the striking out of the same suit brought earlier. The legal effect of an order striking out a suit is that the suit ceases to exist unless relisted by order of Court, in situations where a struck out suit can be relisted, the suit struck out could not have been relisted by the Federal Capital Territory High Court because it was statute barred and the said Court lacked the territorial jurisdiction to entertain it. The option open to the 1st respondent was to file a fresh suit.
Be that as it is, what is clear is that the suit was

withdrawn without reasons and was struck out. It ceased to exist. It is correct that the order of striking out is not a determination of the merit of the dispute in the case and therefore does not bar or foreclose the plaintiff therein from filing the same type of suit again as has been done in this case. But the subsequent suit filed cannot by any stretch of logic be deemed to have commenced from the date the suit struck out was filed for the purpose of saving it from being statue barred.
The trial Court wrongly applied the decision of this Court in Addax Pet. Dev. Nig. Ltd v. Emef International Operations (2012) All FWLR (Pt 621) 1585. This Court in that case did not decide that the subsequent suit would take effect from the date the earlier suit was filed. The part of the judgment of this Court in that case that dealt with this issue reads thusly- “The crucial issue to be resolved however is the effect of the striking out of the suit by the state High Court and the subsequent re-filing or the action in Federal high Court. Learned counsel for the Appellant has argued that the suit earlier filed in the High Court of Cross River State was only revived

when it was re-filed in the Federal High Court since the refilling took effect from the date the action was first filed in the High Court but learned counsel for the respondents are submitting to the contrary i.e. that since the case of action arose on 5/1/2005 and the suit was filed on 25/2/05 by the time it was struck out on 14/7/05, the action had become staute barred at the time it was filed in the Federal High Court on 14/7/05. If the matter had been transferred from the State High Court to the Federal High Court, it would have created no problem instead the suit was struck out and a fresh action had to be filed in the Federal High Court. Computation of time therefore started on 14/7/05 and not 25/2/05 when it was filed in the High Court. I agree with the submission made by Learned Counsel for the Appellant that since the appellant had sought leave to file and argue a fresh ground of appeal and the leave was granted leading to the amendment of the Notice which incorporated the fresh ground it is too late in the day for the Respondents to object to the arguments based on the fresh” ground of appeal raised or the issue arising from the said ground of

appeal.
The objection is therefore overruled. The answer to issue 1 in the appellant’s brief is that the life of suit FCC./CA/C5/60/2005 commenced on 14/7/2005 and not on 28/2/2005 when suit NO. HC/75/2005 was filed.
The provisions of S.285(9) of the 1999 Constitution are very clear. They do not suspend the running of the 14 days period from the date of the occurrence of the event for any reason.

Learned SAN for the 1st respondent has argued that the probable date of accrual of the cause of action is the 7th or 9th October 2018 when the Electoral Appeal Panel conveyed its decision to the National Woking Committee of appellant. Even if the 14 days period is reckoned from the said 7th or 9th October 2018, the suit filed on 11-12-2018 would still be statute barred as it was obviously filed outside 14 days from the 7th or 9th October 2018.
In Emenike V Ogah & Ors (CA/A/86/2019 of 28-3-2019) this Court restated this principle thusly- “Since the primary claim and issue cannot be entertained by the trial Court, having been brought to Court out of time contrary to S.285(9) of the 1999 Constitution, the trial Court lacked the jurisdiction to

determine the secondary claim or issue that deal with whether it is the 1st respondent’s name and not that of the appellant that should have been displayed and published as the 3rd respondent’s said candidate. It is trite law that it is the primary claim or issues in a suit that determines the jurisdiction of the Court to entertain it and not the secondary or ancillary issue. Since the primary issue here is statute barred and the trial Court therefore lacked the jurisdiction to determine it, then the trial Court lacked jurisdiction to determine the secondary issue arising from it, that cannot be resolved without resolving it. It is the primary issue and not the secondary or incidental issue that determines the jurisdiction of a Court. The primary issue must be within the jurisdiction of a Court before it can have the jurisdiction to deal with matters deriving therefrom. As this Court held in Igweh & Anor v Igweh & Ors (CA/A/685/2017 delivered on 6-2-2019) where a primary issue or dispute is outside the jurisdiction of a Court, the issues incidental or ancillary to it, which are within the jurisdiction of that Court would not confer it jurisdiction

to entertain the said underlying issue. See Nwafia v. Ububa (1966) NMLR 219 (ESC), Tukur V Gov’t of Gongola State (1989) LPELR – 3272 (SC), Tukur V The Gov’t of Taraba State (1997) LPELR – 3273 (SC) and Emeka V Okoroafor & Ors (SC).
It is clear from the judgment of the trial Court that it held the view that the reliefs claimed for by the 1st respondent in his originating summons were no longer grantable because the general election of Senator for Delta North District had already held. Learned Counsel for the appellant informed this Court while adopting his brief in open Court that the appellant won the election. Learned SAN for the 1st respondent did not dispute this fact.
The trial Court held that since the general election had already been conducted, it can only grant two consequential reliefs claimed for by the 1st respondent. The exact Justice of the said part of the judgement of the trial Court reads thusly- “In consequence of the above finding, I resolve the sole issue of whether or not, the plaintiff is entitled to the reliefs sought as formulated and argued by all the parties in this case and adopted by this Court in favour of the plaintiff.<br< p=””>

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In view of the fact that the election into the constituency in issue has already been conducted, this Court is of the humble view that it can only grant the consequential reliefs sought by the Plaintiff, which are reliefs 3 and 4 in the originating summons.
In consequence of the above, I hereby order as follows:-
1. AN ORDER is hereby made directing the 1st Defendant to immediately publish the name of the Plaintiff who won the Primary Election of the 2nd Defendant (PDP) in respect of the Senatorial Election slated for the 2019 as the authentic candidate of the 2nd Defendant for Delta North Senatorial Election.
2. AN ORDER is also made restraining the 3rd Defendant from parading himself as the PDP candidate for the Delta North Senatorial Election in the 2019 Election.”
It is glaring from the express terms of the reliefs granted by the trial Court that the orders are incapable of being carried out and are therefore futile and vain. The election having been conducted, it was no longer possible to publish the name of the 1st respondent as a candidate in the already concluded election. The appellant having contested and won the election, it

was no longer possible to restrain him from parading himself as appellant’s candidate in an election he had already contested and won as appellant’s candidate. It is trite law that an order cannot be made to restrain an event that has already taken place or to restrain an act already completed. See Ideozu & Ors V Ochoma & Ors (2006) 2SC (Pt. iii) 113.
It is trite law that a Court should not grant a relief that is not capable of enforcement. A Court like nature does not act in vain. The making of order that is obviously futile amounts to an academic exercise. A Court lacks the jurisdiction to engage in such exercise. See Imegwu V Okolocha & Ors (2013) LPELR-19886 (SC) and Global Transport Oceanico SA & Anor v. Free Enterprises Nig Ltd (2001) 2 Sc 154.
Therefore the two consequential reliefs granted by the trial Court are void and of no effect. In any case, it is an absurdity to refuse to grant the principal relief in a case on the ground that it can no longer be granted because of the holding of the general election and yet proceeds to grant relief that should be consequences of the grant of the principal relief. Consequential relief as

their name depicts are reliefs that are made in consequence of the grant of a main or principal relief. They cannot stand on their own. They are meaningless and of no use if the principal relief is not granted.

For the above reasons and the more detailed ones contained in the erudite lead judgment, I also allow this appeal.

Appearances:

E. Enoidem, Esq. with him, N. N. Asobinowu, Esq.For Appellant(s)

A. Raji, SAN with him, O. Nwokolo, Esq., C. Ojobor, Esq. and A. Adedipe, Esq. for the 1st Respondent.

A. Omejesin, Esq. for the 2nd Respondent.

A. Idigbe (SAN), V.J.O. Azinge (SAN), O. Olapelu (SAN) with him, G. Ogbomeh, Esq. and F. Nwugo, Esq. for the 3rd RespondentFor Respondent(s)

Appearances

E. Enoidem, Esq. with him, N. N. Asobinowu, Esq.For Appellant

AND

A. Raji, SAN with him, O. Nwokolo, Esq., C. Ojobor, Esq. and A. Adedipe, Esq. for the 1st Respondent.

A. Omejesin, Esq. for the 2nd Respondent.

A. Idigbe (SAN), V.J.O. Azinge (SAN), O. Olapelu (SAN) with him, G. Ogbomeh, Esq. and F. Nwugo, Esq. for the 3rd RespondentFor Respondent

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