SA’ADATU MADAWAKI BELLO v. ALL PROGRESSIVES CONGRESS & ORS
(2019)LCN/13210(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/60/2019
RATIO
STATUTE BAR: THE CONSEQUENCE OF AN ACTION BEING STATUTE BAR
Where an action is statute barred, a Plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action had lapsed. See EMIATOR V. NIGERIAN ARMY (1999) 12 NWLR (Part 179) 258. Since the Cross Appellant’s action was instituted outside the time allowed by Section 285 (9) of the 1999 Constitution (as amended) the lower Court had no jurisdiction to entertain it. See TOYIN V. P.D.P & 3 ORS Unreported SC 308/2018 Delivered on 18th January, 2019.PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
SA’DATU MADAWAKI BELLO Appellant(s)
AND
1. ALL PROGRESSIVES CONGRESS
2. ABDULRAUF ABDULKADIR MODIBBO
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This is a Cross Appeal against the Judgment delivered on the 6th March, 2019 by A. M. Anka J at the Federal High Court, Yola Division. At the lower Court the Cross Appellant was the Plaintiff. The 1st 2nd and 3rd Cross Respondents were the Defendants. At the lower Court, the Cross Appellant sought for the determination of nine questions and fourteen reliefs. I reproduce hereunder the first question for determination as well as the first relief sought by the Appellant at the lower Court. Question 1:
Whether the 1st Respondent?s Primary election conducted for Girei/Yola North/Yola South Federal Constituency on the 7th day of October, 2018 is in compliance with the provisions of Section 87 (4) (c) (i) and (ii) of the Electoral Act. 2010 (as amended) to warrant the 1st Respondent submitting the name of the 2nd Respondent to the 3rd Respondent as its candidate for the 2019 General Election into Girei/Yola North/Yola South Federal Constituency of Adamawa State.
Relief 1:
A declaration that the 1st Respondent?s primary election conducted for
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Girei/Yola North/Yola South Federal Constituency on the 7th day of October, 2018 is NOT in compliance with the provisions of Section 87(4)(c)(i) and (ii) of the Electoral Act, 2010 (as amended) to warrant the 1st Respondent submitting the name of the 2nd Respondent to the 3rd Respondent as its candidate for the 2019 General Election into Girei/Yola North/Yola South Federal Constituency of Adamawa State.?
The originating summons was taken out by the Cross Appellant was consolidated with three other suits namely FHC/YL/4/19, FHC/YL/5/19 and FHC/YL/7/19 which were all against the same defendants through different plaintiffs. After hearing and considering the preliminary objections of all the Cross Respondents to the jurisdiction of the lower Court to entertain the suit mainly predicated on the limitation of action provision that it was commenced outside the time allowed by Section 285 (9) to the 4th Alteration of the 1999 Constitution.
Dissatisfied with the finding of the lower Court that the action was statute barred, the Cross Appellant filed this Appeal by a Notice of Cross Appeal filed on 18th March, 2019 containing
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three grounds. From the three grounds the Cross Appellant formulated two issues for determination:
i. Whether having regard to the facts and circumstances of this case, most especially the inconclusive nature of the primaries election of the 2nd cross-Respondent for Yola North/Yola South/Girei Federal Constituency held on the 7th October, 2018, the learned trial Judge did not err when he held that the suit instituted by the Cross-Appellant herein was statute barred and consequently struck out same (Distilled from Grounds 1 and 2 of the Notice of Appeal)
ii. Whether taking into consideration the provisions of Section 87 (9) of the Electoral Act (2010) and the fact that no candidate emerged for the Yola North/Yola South/ Girei Federal Constituency as at 7th October 2018, the trial Judge did not err when in applying Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 restricted himself only to the event of 7th October, 2018. (Distilled from ground 3 of the Notice of Appeal)
The 1st Cross Respondent also submitted two issues for determination:-
1. Whether given the entire circumstances of this case in
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relation to the very nature of pre-election matter particularly under S. 87 of the Electoral Act, 2010 as amended, the Lower Court?s decision to dismiss the suit on the promise that it is statute barred is correct and sustainable? (Grounds 1 & 2 of the Notice of Appeal).
2. Whether considering the facts in support of the originating summons, the questions for adjudication and the reliefs sought, the trial Judge was correct to have held that the cause of action of the Cross Appellant arose on the 7th of October, 2018? (Ground 3 of the Notice of Appeal).
The 2nd Cross Respondent formulated a lone issue for determination:-
?Whether in the entire circumstances of this suit the Court below was right in holding that the Cross Appellant?s qua Plaintiff?s case was statute barred (Grounds 1, 2 and 3).?
In arguing the Cross Appeal the Cross Appellant submitted that the 2nd Cross-Respondent?s primary election conducted for Yola North/Yola South/Girei Federal Constituency on the 7th day of October, 2018 was not and is not in compliance with the Provisions of Section 87 of the Electoral Act, provisions of
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Exhibit LAG7 and Exhibit LAG8 and cannot for any reason whatsoever; produce or nominate a Candidate for the Federal Constituency in issue to warrant the 1st Cross-Respondent to submit the name of the 2nd Cross-Respondent herein (Abdulra?uf Abdulkadir Modibbo) to the 3rd Cross-Respondent (INEC) as its Candidate.
That Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017, which the learned trial judge relied on to decide the preliminary objection provides, 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.
That from the above clear and unambiguous constitutional provision, the important question is when is the date of occurrence of the event, decision or action complained of? That the main action complained of in this Suit which is the submission of the name of the 2nd Cross-Respondent despite the inconclusive nature of the 1st Cross-Respondent?s Primaries took place on the 18th of
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October, 2018. That as could be gleaned from the contents of the Originating Summons and the Affidavit in Support as contained on the records, the case of the Cross-Appellant has always been that the cause of action arose after the National Working Committee?s meeting of 17th October, 2018 and the subsequent submission of the name of 2nd Cross Respondent as the candidate of the 1st Cross Respondent on the 18th October, 2018.
?That from the respective affidavits of parties at the trial, that the primary election of 7th October, 2018 did not produce any winner capable of being submitted for the purpose of being the candidate of the 1st Cross-Respondent herein for the 2019 General Election. It is also on records that the Cross-Appellant wrote a petition to the National Working Committee on the inconclusive nature of the said Primary Elections which Petition was never investigated at all. That while waiting for the outcome of the Petition, that the 1st Cross-Respondent (APC) submitted the name of the Appellant/Cross-Respondent to the 2nd Cross Respondent on the 18th of October, 2018. Thus, it was on the said 18th of October, 2018 wherein the name of
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the 2nd Cross-Respondent was submitted that the cause of action arose.
That the Cross Appellant acted pursuant to the 1st Cross-Respondent?s Constitution which empowers and aggrieved candidate to first exhaust internal remedy by petitioning the appeal Committee before resort to litigation. Without exhausting, before the 18th of October, 2018, the Cross-Appellant was still waiting and hoping that the issue will be resolved by the Appeal Committee. But by the said 18th of October, 2018, wherein it became clear that the Appeal Committee ignored his petition and submitted the name of a candidate from the inconclusive primaries, the cause of action arose and thus, became necessary for him to ventilate his grievances at the Court of law hence the Suit forming subject matter of this appeal.
That having regard to exhibits SMB8, SMB9, & SMB10, on pages 284-290 of the record, there was no conclusive primaries as at 7th October, 2018 capable of producing a candidate for the seat of House of Representatives for Yola North/Yola South/Girei Federal Constituency as such, the only time a candidate emerged was from the National Working Committee?s
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meeting of 17th October, 2018.
That the 1st Cross Respondent breached the Cross-Appellant?s right when it ignored his petition and proceed to submit the name of the 2nd Cross-Respondent on the 18th of October, 2018. Agreed the Primaries held on the 7th of October, 2018, but the question is whether by the Constitution of the 1st Cross Respondent, the Cross Appellant was clothed with the right to go to Court without first obtaining redress on his petition? Certainly no Reference was made to A.G. ADAMAWA V. AGF (2015) AFWLR (Part 797) 597.
That the learned trial Judge took a narrow appreciation as to what constitute a cause of action in determining the preliminary objection before him hence his erroneous arrival on the decision that the cause of action arose on the 7th of October, 2018 instead of 17th/18th of October, 2018. Reference was made to MULIMA & ANOR V. USMAN & 3 ORS (2014) 1-2 SC (PT.III) PG 126 @ 164-5.
?Now, cause of action has been defined by Court to mean a combination of facts and circumstances giving rise to the right to file a claim in Court for a remedy. It includes all things which are necessary to give a
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right of action and every material fact which has to be proved to entitle the Plaintiff to succeed.?
That looking at the affidavit evidence of the Cross-Appellant at the trial Court and the totality of the facts surrounding the Cross Appellant?s case, even though the primaries held on the 7th October, 2018, the cause of action upon which the Cross Appellant could sue arose on the 18th October, 2018 when the 1st Cross Respondent submitted the name of the 2nd Cross-Respondent as its candidate.
Learned Counsel to the 2nd Respondent submitted that once an action is brought outside the time prescribed by law or statute, in this case Section 285 (9) of the 1999 Constitution, Fourth Alteration Act, that action cannot be sustained as the Plaintiff would have lost her/his right of action. That the 1st Cross-Respondent primary election to elect a candidate to represent her in the General Election of the 3rd Cross-Respondent for the Yola North/Yola South, Girei Federal Constituency of Adamawa State in the National Assembly took place on the 7th October, 2018 as shown at paragraphs 18 and 20 of the affidavit in support of the Originating Summons,
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page 14 of the record of appeal and particularly the petition as attached thereto.
That as at 7th October, 2018, the Cross-Appellant was fully in the know that the 1st Cross Respondent through his assertion in his affidavit evidence at paragraph 15 therefore which is contained at page 14 of the printed records had allegedly violated its guidelines for nomination of candidates for 2019 general election which evidently has proved the commencement of cause of action on that date. Paragraph 15 of the affidavit of the Cross-Appellant reads thus:
15. All efforts to see the Election Committee see reasons to carry out accreditation in line with the 1st Respondents? guidelines for nomination of candidates for 2019 General Election went to no avail as the Committee was bent on using the list of accredited Delegates for already concluded Senatorial primaries in Adamawa State.?
The above statement of fact, which is clear, unambiguous and straight forward is clearly an admission of a grouse by the Cross-Appellant against the conduct or procedure adopted by the Cross-Appellant Election Committee on the 7th October, 2018 to which a clear and
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undisputable cause of action had arisen, but because the Cross Appellant desires to escape the limitation of action under S.285(9) of the 1999 Constitution, Fourth Alteration Act, she decided to shift grounds albeit unsuccessfully, to the 17th and 18th of October, 2018.
The 3rd Respondent submitted that the decision of the lower Court that the suit is statute barred is unassailable, the cause of action having arisen on 7th October, 2018.
DETERMINATION OF THE APPEAL
Learned Counsel for the Cross Appellant submitted that even though the primary election held on 7th October, 2018 the cause of action arose on 18th October, 2018. With due respect to learned counsel, the cause of action originated from the date on which the incident that gave rise to the cause of action occurred. That incident was undoubtedly the primary election held on 7th October, 2018. The name of the 2nd Cross Respondent was submitted as a consequence of the primary election. On the face of the originating summons therefore particularly relief 1 and the affidavit in support of the originating summons, it is not difficult to find that the incident which gave rise to the cause
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of action was the primary election held on 7th October, 2018 and not the 18th of October when the name was submitted to INEC.
The lower Court was therefore on firm ground when it held that the action was statute barred. 7th October, 2018 to 29th October, 2018 when the Cross Appellant instituted the action was outside the 14 days allowed by Section 285 (9) of the 1999 Constitution (as amended).
?Where an action is statute barred, a Plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action had lapsed. See EMIATOR V. NIGERIAN ARMY (1999) 12 NWLR (Part 179) 258. Since the Cross Appellant?s action was instituted outside the time allowed by Section 285 (9) of the 1999 Constitution (as amended) the lower Court had no jurisdiction to entertain it. See TOYIN V. P.D.P & 3 ORS Unreported SC 308/2018 Delivered on 18th January, 2019.
In the final analysis, the issues presented by learned counsel to the Cross Appellant and argued together are resolved against the Cross Appellant and in favour of the Respondents.
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Accordingly, the Cross Appeal is dismissed. The Judgment of the lower court dismissing the suit for being statute barred is hereby affirmed. Parties should bear their costs of the Appeal.
CHIDI NWAOMA UWA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
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Appearances:
Y. D. Dangana, Esq. with him, Idris M. Talle, Esq.For Appellant(s)
Sule Shu’aibu, Esq. for the 1st Cross
Respondent.
S. Atung, Esq. for the 2nd Cross Respondent.
Ishaku Bala, Esq. for the 3rd Cross Respondent
For Respondent(s)
Appearances
Y. D. Dangana, Esq. with him, Idris M. Talle, Esq.For Appellant
AND
Sule Shu’aibu, Esq. for the 1st Cross
Respondent.
S. Atung, Esq. for the 2nd Cross Respondent.
Ishaku Bala, Esq. for the 3rd Cross RespondentFor Respondent
