SHEHU SALE RIJAU v. JA’AFARU ILIYASU & ORS (2019)

SHEHU SALE RIJAU v. JA’AFARU ILIYASU & ORS

(2019)LCN/13063(CA)

(2019) LPELR-48254(CA)

RATIO

JURISDICTION: JURISDICTION IS DETERMINED WITHOUT RECOURSE TO THE STATEMENT OF DEFENCE OR COUNTER AFFIDAVIT OF THE ADVERSE PARTY

It is well settled that the jurisdiction of the Court is determine without recourse to the statement of defence or counter affidavit of the adverse party or parties as the case may be. See the cases of;
ADEYEMI VS. OPEYORI 1976 6-10 SC 31.
INAKOJU VS. ADELEKE 2007 4 NWLR PT. 1020 PG 427.PER ABDU ABOKI, J.C.A.

WHAT THE TRAIL COURT MUST CONSIDER IN ORDER TO DETERMINE CAUSE OF ACTION AND LIMITATION PERIOD
It is my view that, the trial Court is under a duty to consider only the reliefs on the originating summons and affidavit in support filed by the 1st Respondent for the purpose of determining both the cause of action and limitation period. See ALHAJI MADI MOHAMMED ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS 2007 ALL FWLR PT. 362 1855.PER ABDU ABOKI, J.C.A.

JUSTICE

ABDU ABOKI justice of The Court of Appeal of Nigeria

PETER OLABISI IGE justice of The Court of Appeal of Nigeria

MOHAMMED BABA IDRIS justice of The Court of Appeal of Nigeria

Between

SHEHU SALE RIJAU – Appellant(s)

AND

1. JA’AFARU ILIYASU
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the Judgment of the Federal High Court, sitting at Minna, delivered on the 14th February, 2019 by Hon. justice Aminu Baffa Aliyu in Suit No. FCT/MN/CS/02/19.

The Brief summary of the fact of this case that lead to this appeal was that, by an originating summons filed on the 26th day of October, 2018 the 1st Respondent as Plaintiff at the trial Court seeks the determination of the questions as can be found at pages 1 to 2 of the record of appeal. In anticipation of favorable answers, the 1st Respondent also seeks the reliefs as can be found at pages 2 to 4 of the record of appeal.

The summons is supported by an affidavit of 26 paragraphs and exhibits attached. 1st Respondent’s case is that he is a member of the 2nd Respondent in this appeal. In preparatory to the 2019 general elections, he indicated interest in contesting for the office of member representing Magama/Rijau constituency at the House of Representatives on the platform of the 2nd Respondent.

He subsequently purchased the expression of interest and nomination forms

from the 2nd Respondent, which he completed and return to it. Three other person in addition to the 1st Respondent indicated interest in contesting for the same office. The direct primary election was conducted by the 2nd Respondent on the 3rd of October, 2018, at the end of the primary election the 2nd Respondent emerged as the winner.

The 1st Respondent alleged that the Appellant was not an aspirant in the 2nd Respondent’s primary election for the Federal House of Representatives in Magama/Rijau constituency. The Appellant was rather an aspirant in the 2nd Respondent’s primary for Senate.

The case of the Appellant, on the other hand as disclosed by his counter affidavit was that he was an aspirant at the 2nd Respondent’s primary election for the office of the member House of Representative representing, Magama/Rijau federal constituency. He alleged that at the end of the primary election he was declared winner having polled 13,384 votes to defeat the 1st Respondent who scored 1,963 votes. The 2nd Respondent forwarded the name of the Appellant to the 2nd Respondent, as the candidate to represent the 2nd

Respondent for the office of member representing Magama/Rijau Federal constituency at the 2019 general election.

Consequence upon that action of the 2nd Respondent of forwarding the name of the appellant to the 3rd Respondent as its candidate, the 1st Respondent approached the trial Court seeking for a determination of the questions as contained in the face of the originating summons.

The trial Court in its judgment hold that the 1st Respondent’s case succeeds and the reliefs contained in paragraphs 1-7 of the originating summons are granted.

Dissatisfied with the said judgment of the trial Court, the Appellant who was the 3rd Defendant at the trial Court appeal to this Court vides his notice of appeal dated and filed 14/2/2019 and later filed another notice of appeal on the 27/2/2019. The notice of appeal filed on 14/2/2019 can be found at pages 953-956 of the record of appeal, while the notice of appeal filed on 27/2/2019 which contained 9 grounds of appeal is contained in the supplementary record of appeal. The Appellant brief of argument is predicated on the notice of appeal filed on 27/2/2019. The notice of appeal filed on

14/2/2019 is therefore deemed abandoned and it is hereby struck out.

The record of appeal was compiled and transmitted to the Court on 27/2/2019. The briefs of argument were subsequently filed and exchanged by the parties in accordance with the rules of Court. The Appellant’s brief of argument is dated 18th March, 2019 and filed on the same date. The Appellant also filed Appellant’s Reply Brief dated 26/3/2019 on 27/3/2019.

The 1st Respondent’s Brief of Argument on the other hand, is dated and filed on the 26th March, 2019. The 1st Respondent also incorporated a notice of preliminary objection to the hearing of the appeal in his brief of argument.
The 2nd Respondent’s brief of argument dated 11/3/2019 was filed on 20/3/2019.

On 28th March, 2019, the appeal was heard before the Court. The 1st Respondent’s counsel move adopted his submission on the preliminary objection and urged the Court to dismiss the appeal. The Appellant on their part urged the Court to dismiss the preliminary objection. Also the Appellant’s Counsel adopted the Appellant’s brief of argument as well as the Reply Brief. He urged the Court to allow

the appeal and set aside the judgment of the lower Court. The 1st Respondent’s Counsel on its part adopted the 1st Respondent’s brief of argument and urged the Court to dismiss the appeal for lacking in merit and affirm the decision of the trial Court. While the 2nd Respondent’s counsel adopted the 2nd Respondent’s brief of argument and concedes to the appeal.

The Appellant from his 9 grounds of appeal distilled three issues for determination as follows:
1. Whether in view of the pleadings in the Originating Summons filed by the 2nd Respondent on the 26th of October, 2018, particularly the conflict with respect to the Primary Election allegedly conducted by the 2nd Respondent on two (2) different dates; the 2nd and 3rd October, 2018, the learned trial Court ought not to have struck out the Originating Summons for failure to disclose a cause of action and also for being incompetent, having been filed later than 14 days from either of the conflicting dates of the alleged conduct of the Primary Election, in contravention of Section 285(9) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration No. 21) Act 2017? Grounds 6, 7 and 8.<br< p=””>

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2. Whether the learned trial Judge properly evaluated the evidence adduced before the Court to justify the conclusion that the Appellant (3rd Defendant) did not participate in the Primary Election conducted by the 2nd Respondent (1st Defendant) for Magama/Rijau Federal Constituency of Niger State as to warrant the grant of the Declaratory reliefs sought by the 2nd Respondent (Plaintiff) in the Originating Summons? Grounds 2, 3, 4, 5 and 9.
3. Whether having regard to the conflicting nature of the Affidavits of the Parties, on the material question of the authenticity of the result of the Primary Election for Magama/Rijau Federal Constituency of Niger State inter alia, which was clearly identified by the trial Court on pages 940 to 942 of Volume 1 of the Record of Appeal, the trial Judge ought not to have directed parties to file pleadings rather than assume jurisdiction and determine the 2nd Respondent’s claims on the Originating Summons procedure? Ground 1.

The 1st Respondent’s counsel on its part adopted the three issues as distilled by the Appellant’s counsel. While, the 2nd Respondent’s counsel distilled a lone issue for determination as

follows;
1. Whether having regard to the facts, circumstances and evidence before it, the learned trial judge was right in holding that the 2nd Respondent had proved his claims and is entitled to the reliefs?

I will determine this appeal on the basis of the three issues raised in the Appellant’s brief of argument.

In the determination of this appeal, I will first consider the preliminary objection raised by the 1st Respondent.
The grounds of the preliminary objection are as follows;
1. The Appellant ought to file his brief of argument within 10 days from the date of the service of the record of appeal.
2. The Appellant was served with the record of appeal on the 28th of February, 2019.
3. The Appellant filed his brief of argument on the 18th of March, 2019 about 18 days after the service of the record of appeal in this case.
4. The Appellant’s brief of argument was filed out of time and is therefore a nullity.
5. The appeal ought to be struck out.

Arguing the preliminary objection, learned counsel for the 1st Respondent submitted that the power of this Court

to entertain an appeal from election matters is anchored on the provisions of Section 243 and 285 of the 1999 constitution of Nigeria.

He argued that the appeal of the Appellant was filed within 14 days pursuant to Section 285 (11) of the 1999 Constitution 4th Alteration Act, 2017. He contended that the only rules regulating procedure of this Court in election and pre-election appeals filed pursuant to Section 243 and 285 of the Constitution is the election Tribunal and Court Practice Direction, 2011, and the rules applies to all appeals brought to this Court in pre election matters. He referred the Court to Paragraph 10 of the Election Tribunal and Court Practice Direction, 2011 to show that the Appellant is under a duty to file his brief of argument within 10 days from the date of service of the record of proceedings on him.

He argued that in this appeal, the record of proceedings was served on the Appellant on 28/2/2019, while the Appellant’s brief of argument was filed on 18/3/2019. He submitted that a brief of argument filed outside the provisions of the practice direction is a nullity. He referred the Court to the case of PDP VS INEC (2014) 17

NWLR PT.1437 PG 525.

He contended that the brief filed by the Appellant in this appeal is a nullity and urged the Court to strike out same, affortiori the appeal.

In response to the preliminary objection, learned counsel for the Appellant submitted that the practice direction relied on by the 1st Respondent does not applies to this case.

He contended that it is the Court of Appeal Rules 2016 that regulates the time for filing of briefs in an appeal arising from the decisions on pre-election matters. He maintained that the Appellant’s brief of argument was filed within time allowed by Order 19 Rule 2 of the Court of Appeal Rules, 2016 and therefore not incompetent.

He submitted that the case of PDP VS INEC SUPRA cited by the 1st Respondent is inapplicable to the present appeal. He urged the Court to dismiss the preliminary objection.

I have carefully perused the Tribunal and Court practice directions, 2011 relied upon by the 1st Respondent, it is my view that the said practice direction applies to an election petition Tribunal and this Court, either sitting as a Tribunal or when hearing an appeal from the election petition

Tribunal. The practice direction specifically provides thus; The practice direction is applied and observed in the election Tribunals and in the Court of appeal when sitting as a Tribunal or when hearing as appeal from the Tribunal.
As rightly contended by the Appellant’s counsel, it is Order 19 Rule 2 of the rules of this Court that applies to this appeal.
Order 19 Rule 1 and 2 of the rules of this Court provides thus;
“1. This order shall apply to all appeals coming from any Court or Tribunal from which an appeal lies to this Court.
2. “The Appellant shall within forty-five days of the receipt of the record of appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in the appeal.”

In view of the above, there is no merit in the 1st Respondent’s preliminary objection and it is hereby dismissed.

ISSUE ONE
Whether in view of the pleadings in the Originating Summons filed by the 2nd Respondent on the 26th of October, 2018, particularly the conflict with respect to the Primary Election allegedly conducted by the 2nd Respondent on two (2) different dates; the 2nd and 3rd October,

2018, the learned trial Court ought not to have struck out the Originating Summons for failure to disclose a cause of action and also for being incompetent, having been filed later than 14 days from either of the conflicting dates of the alleged conduct of the Primary Election, in contravention of Section 285 (9) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration No. 21) Act 2017?

Learned counsel for the Appellant submitted that the 1st Respondent as Plaintiff, initiated the action which gave rise to this appeal by way of originating summons filed on 26th October, 2018. The originating summons sought to challenge the emergence of the Appellant as the winner of the primary election conducted by the 2nd Respondent on the 4th October, 2018 for the election of its candidate for the office of member representing Magama/Rijau Federal Constituency of Niger State.

He maintained that the question of jurisdiction is a threshold issue which can be raised at any time even for the first time on appeal, because any proceedings conducted without jurisdiction is a nullity. Also in determining

the question of jurisdiction, the relevant document for consideration is the originating process.

He argued that in this case, it is the originating summons filed on 26th October, 2018 that must be considered to determine whether any cause of action had been disclosed by the 1st Respondent, and or any action was commenced within 14 days from the date of the alleged action complained about in the originating summons. He referred the Court to the cases of;
DOPAH & ORS VS. REG’D TRUSTEES OF UMCN (2016) LPELR-26055 CA;
ISAH VS INEC & 3 ORS 2014 1-2 SC PT. IV PG 101 AT 160.
B.B. APUGO & SONS VS O.H.M.B (2016) 13 NWLR PT.1529 PG 206 AT 240.

Learned counsel for the Appellant submitted that the date the primary election took place stated in the reliefs sought by the 1st Respondent is different from what he deposed to in the affidavit in support of the originating summons. He referred the Court also to the questions for determination and the reliefs sought by the 1st Respondent at pages 917 to 918 and 918-919 of the record of appeal respectively.

He maintained that the date stated

in the reliefs sought by the 1st Respondent is different from what he deposed to in the affidavit in support of the originating summons. He referred the Court to paragraphs 16 and 21 of the said affidavit at pages 7 and 8 of the record of appeal.

Also in the written address in support of the originating summons, the 1st Respondent in one breathe stated that the primary election was held on 2nd October, 2018 and in another breathe said it was held on the 3rd October, 2018.

Learned counsel for the Appellant argued that, it clearly shows there was a conflict on the material issue of the date of the conduct of the primary election in question. He referred the Court to the case of OLLEY VS TUNJI (2013) 10 NWLR PT. 1362 PG 275.

He contended that, any conflict between the facts in the questions for determination and the reliefs sought affects the competence of the Court not only to determine the issues formulated for determination but also to grant the reliefs sought upon resolution of the issues.

He maintained that having regard to the originating summons as constituted, the conflict in the dates of the alleged conduct of the primary election,

which is the crux of the 1st Respondent’s case at the trial Court, is so material as to rob the Court of the jurisdiction to entertain and determine the originating summons, because it was judicially impracticable for the trial Court to determine a question relating to the alleged conduct of the primaries held. He referred the Court to the case of MOMAH VS. VAB PETROLEUM INC. (2000) 4 NWLR PT. 654 PG 556 TO 557.

Learned counsel for Appellant submitted that since the trial Court could not have embark on a resolution of the conflict in the originating summons as to the date when the primaries election allegedly conducted by the 2nd Respondent took place, the competence of the suit under Section 285 (9) of the 1999 Constitution 4th Alteration Act, 2017, could only have to be determined taking into account either of the two dates stated by the 1st Respondent in his originating summons. In other words, the period of 14 days within which the 1st Respondent was to file his suit must be reckoned with from either 2nd or 3rd of October, 2018 when the originating summons was filed at the trial Court.

He argued that by simple arithmetical computation, there

are more than 14 days between the latest of the two dates i.e 3rd of October, 2018 and the 26th of October, 2018. He therefore urged the Court to hold that the 1st Respondent’s originating summons was filed in contravention of the provisions of Section 285 (9) of the 1999 Constitution 4th Alteration Act, 2017, it is incompetent and liable to be struck out.

He contended that the trial Court was wrong when it relied on the counter affidavit of the Defendant to the originating summons to hold that the suit was filed within the stipulated period of 14 days allowed by the law.

Learned counsel for the Appellant argued that nowhere in the originating summons did the 1st Respondent allege that the Appellant’s name was forwarded to the 1st Respondent, INEC on 18th October, 2018.

The trial Court was under a duty to stay with the originating processes for the purpose of determining both the cause of action and limitation period. He referred the Court to the cases of;
DOPAH & ORS VS. REG’D TRUSTEES OF UMCN SUPRA B.B. APUGO & SONS VS O.H.M.B SUPRA.

On whole, he urged the Court to resolve this issue in favour of the Appellant and strike out

the originating summons as being incompetent and for failure to disclose a cause of action by reason of the conflict between the dates of the conduct of the primary election.

In response, learned counsel for the 1st Respondent submitted that, in proceedings commenced by originating summons, the respective affidavits of parties form the factual basis upon which the Court considers the case and issues presented for determination. He referred the Court to the cases of;
OFORDUM VS. N.A 2015 1 NWLR PT. 1439 145 AT 181, N.I.C VS. AMINU 2012 8 NWLR PT. 1302 330 AT 360.

He argued that a careful perusal of the 3 affidavits filed by the 1st Respondent to support his case at the trial Court will reveal that he had consistently stated that the 2nd Respondent’s primary election took place on the 3rd of October, 2019. He referred the Court to paragraph 16 and 21 of the affidavit in support of the originating summons at pages 7 and 8 of the record of appeal. Additionally, a careful look at the questions for determination, particularly question 2 and 3 at pages 2 of the record of appeal will reveal that the date of the

conduct of the primary election was the 3rd October, 2018. The only reference to the 2nd October, 2018 was in prayers 2 and 4 of the originating summons at page 3 of the record.

He submitted that the inconsistency of the date contained in the affidavits filed and the questions for determination is a clerical error on the part of the 1st Respondent’s counsel, which will not affect the validity of the process, cause of action and affortiori, the jurisdiction of the Court. He referred the Court to the case of KAKIH VS. PDP (2014) 15 NWLR PT. 1430 PG 374 AT 403.

He maintained that a cause of action is not disclosed by the date upon which an event is said to have happened. He referred the Court to the cases of; B.E.D.C PLC VS. ESEALUKA 2015 2 NWLR PT. 1444 PG 411 AT 435; JUKOK INT. LTD VS. DIAMOND BANK PLC 2016 6 NWLR PT. 1507 PG 55 AT 93.

Learned counsel for the 1st Respondent contended that the factual situation that gave rise to the Plaintiff’s action is the fact that having contested and won the primary election, the 2nd Respondent refused to forward his name to the 2nd Respondent in line with Section 87 (4) (c ) (ii) of the Electoral Act, 2010.

Therefore, the disclosure of a course of action does not lie in the date the event occurred but the complete happening of the event.

He argued that, the 1st Respondent’s 3 affidavits filed did disclose a reasonable cause of action and the trial Court was right to proceed to hear the originating summons. He referred the Court to the case of OMISORE VS. AREGBESOLA 2015 15 NWLR PT.1482 205 AT 255.

Learned counsel contended that the cases of OLLEY VS TUNJI (SUPRA) & MOMAH VS VAB PETROLEUM (SUPRA) relied upon by the Appellant has no application to the facts of this case. He urged the Court to discountenance the reliance on those authorities.

On the whole, he submitted that the error in stating the date of the conduct of the primary election in prayers 2 and 4 are mere clerical errors, which could have been amended by the Court.

On the Appellant’s submission that counting from the date of the conduct of the primary election, this action was statute barred, in the sense that it was not filed within 14 days from the date of the conduct of the party’s primary election, learned counsel for the 1st Respondent

submitted that the provision of Section 285 (9) of the Constitution 4th Alteration Act is very clear and unambiguous. He referred the Court to the case of IKECHUKWU VS NWOYE 2015 3 NWLR PT. 1446 PG 367 AT 402.

He argued that the actual words used in Section 285 (9) of the Constitution (Supra) are not “from the date of the primary election”, rather the words used are “from the date of the occurrence of the event, decision or action complained of.” Therefore, the proper approach is for the Court to determine from the Plaintiff’s claim what event or action is he complaining about, and time will start to run from that date. He referred the Court to the case of KASIM VS. NNPC (2013) 10 NWLR (PT.13610) 46 AT 66.

Learned counsel for the 1st Respondent submitted that, it is the failure by the 2nd Respondent to forward the name of the winner of its primary election to the 2nd Respondent that triggered this action. Therefore, that the wrongful act complained of by the 1st Respondent was not the conduct of the primary election.

He conceded that the 1st Respondent did not in his originating processes disclose the date when the

name of the Appellant was forwarded to the 2nd Respondent. However, in such situations, the Courts are entitled to utilize any evidence that establishes such date from the record. He referred the Court to the cases of;
OLORA VS. ADEGBITE 2013 1 NWLR PT. 1334 40 AT 56-57.
LADO VS. CPC 2011 18 NWLR PT. 1279 AT 724.

He maintained that in the instant case, the 2nd Respondent in paragraph 10 of its counter affidavit and the Appellant at paragraph 10 of his counter affidavit averred that on 18th day of October, 2018 submitted the name of the 3rd Defendant to the 2nd Defendant as its candidate. Therefore, counting from 18 October, 2018 14 days will lapse on 31 October, 2018. Learned counsel argued that since this action was filed on 26/10/2018, it was filed within the time specified by Section 285 (9) of the Constitution. He referred the Court to the holding of the trial Court at page 932 of the record and contended that the trial Court was right.
He urged the Court to dismiss this appeal.

It is pertinent to note that Elections related matters are sui generis. They are unlike ordinary civil proceedings

without a time bar. See: HASSAN V. ALIYU (2010) ALL FWLR (PT. 539) 1007 AT 1046.
Section 285 (9) of the 1999 CFRN (4th Alteration Act 2017) 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.”
The Appellant argued that the cause of action complained by the 1st Respondent arose on the date when the primary election of Magama/Rijau took place. While, the 1st Respondent on the other hand contended that, it is the failure by the 2nd Respondent to forward his name to the 3rd Respondent that triggered this action.
I have earlier said that, this action was begun by originating summons, thus it is the reliefs on the originating summons, affidavit in support that recourse must be had in order to discover the date of the accrual of cause of action in this appeal, as it is he who seeks to invoke the adjudicatory powers of the Court to determine his complaint. See the case of; A.G. FEDERATION VS. GUARDIAN NEWS PAPERS LTD (1999) 9 NWLR (PT.618) PG. 187.

The trial Court in its judgment at pages 931 of the record held thus;
“The Plaintiff’s originating summons was dated and filed on the 26th October, 2018 and it reveals the Plaintiff’s claim as contained therein. The Plaintiff in paragraphs 16 and 21 of his affidavit in support of his originating summons deposed that the primary election took place on the 3rd October, 2018. However, the critical issue which the Court must answer at this juncture is what exactly is the event, decision or action complained of by the Plaintiff? It is clear that the Plaintiff is not complaining about the primary election and event that took place on the 3rd October, 2018. The Plaintiff has stated over and over that the election took place on the Id October, 2018.
It is clear that what the Plaintiff is complaining of is the submission of the name of the 3rd Defendant by the 1st Defendant to the 2nd Defendant as the winner of the 1st Defendant’s primary election and nominee of the 1st Defendant for the position for Magama/Rijau federal constituency.”
(Underline mine for emphasis)
It is well settled that the jurisdiction

of the Court is determine without recourse to the statement of defence or counter affidavit of the adverse party or parties as the case may be. See the cases of;
ADEYEMI VS. OPEYORI 1976 6-10 SC 31.
INAKOJU VS. ADELEKE 2007 4 NWLR PT. 1020 PG 427.
It is my view that, the trial Court is under a duty to consider only the reliefs on the originating summons and affidavit in support filed by the 1st Respondent for the purpose of determining both the cause of action and limitation period. See ALHAJI MADI MOHAMMED ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS 2007 ALL FWLR PT. 362 1855. In the instant case, there is nowhere in the originating summons where the 1st Respondent alleged that the Appellant’s name was forwarded to the 3rd Respondent on 18th October, 2018. The 1st Respondent himself concedes to this fact at page 14 paragraph 6.15 of his brief of argument. Hence, it is my view that the trial Court fails in its duty, when it consider the 1st and 3rd Defendants’ counter affidavits in determining the cause of action for the purpose of

limitation period.
In this case, the 1st Respondent averred in his affidavit in support of the originating summons that the primary election was conducted by the 2nd Respondent on 3rd October, 2018 and the report of the 2018 Niger state House of Representatives primary election attached to the originating summons is also dated 10/10/2018.
Section 285 (9) Supra to my mind provides for diverse situations. There must be an occurrence of an event or action that affects the person complaining before it could be said that a cause of action has accrued to the person complaining. That, the submission/forwarding of the name of the aspirant with highest number votes at the end of the party’s primary election in my view, is also part of the primary election. In other words, if the suit is complaining about the submission of the appellant’s name as the winner of the primary election, then obviously it is complaining about the primary election which he was said to have won. In the instant case, the 1st Respondent has shown that his party forwarded the name of the appellant instead of his name.
This Court in the case of DAVID UMAR VS. ALL PROGRESSIVES CONGRESS (APC) & 2 ORS Appeal No. CA/A/126/2019

Unreported delivered on 8th April, 2019 PER S.3. ADAH, JCA held thus;
“The lower Court in the instant case had the privilege of going through the length and breadth of the claim of the 1st Respondent. His claim is that he won the primary election conducted on 2nd October, 2018 and that it was not the appellant that won the party primary election conducted for the Niger east senatorial district. That it was the name of the appellant who he alleged did not win the primary election that was submitted to INEC by their political party. It is therefore sure and certain that the cause of action was primarily the party primary election which (sic) held on 5th of October, 2018 or as the 1st Respondent himself claimed, 2nd of October, 2018. The issue of submission of name to the INEC on 18th October, 2018 is ancillary to the main issue which is the primary election conducted by the 2nd Respondent. The authority for this is Section 87 of the Electoral Act, 2010 (as amended). The law reads as follows:
87. (1) A political party seeking to nominate candidates for elections under this Act shall

hold primaries for aspirants to all elective positions.
(2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries.
(3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.
(4) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below:
(a)…….
(b)…..
(c) In the case of nominations to the position of a Senatorial candidate, House of Representatives and State House of Assembly a political party shall, where they intend to sponsor candidates:
(I) Hold special congresses in the Senatorial District, Federal Constituency and the State assembly constituency respectively, with delegates voting for each of the<br< p=””>

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aspirants in designated centers on specified dates.
(ii) The aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Independent National Electoral Commission as the candidate of the party.
The issue of forwarding or submitting a candidate’s name to INEC is a function of a successful primary election. So the cause of action is the primary election.”
(Underline mine for emphasis)
From the circumstances of this case, I have no doubt that 1st respondent’s cause of action accrued on 3rd October, 2018 when the primary election was conducted and 2nd respondent’s primary election’s electoral committee forward the name of the appellant after the party’s primary election.
The 1st Respondent also contended that he had no complaint against the conduct of the primary election. However, both the Appellant and the 2nd Respondent showed by evidence that they won the primary election. The trial Court in its judgment held thus;
“…The plaintiff attached Exhibit 7 to the originating summons, Exhibit 3D and 1

to the plaintiff’s further affidavit in response to the 1st-3rd defendant’s counteraffidavit to the originating summons and further affidavit of statement of fact in respect of document allege to be issued by one Baba Ali. Exhibit 7, 3D and 1 are one and the same document, only that they are exhibited in different affidavits by the plaintiff.
Exhibits 7, 3D and 1 showed that the aspirant’s and the number of votes obtained (sic) by each of them at the primary election conducted for the Magama/Rijau federal constituency. The plaintiff was shown to have obtained 4, 777 votes at the end of the primary election which according to Exhibits 7,3D and 1 is the highest votes obtained, from the said exhibits, the 3rd defendant is not shown to have participated in the primary election ………The 1st defendant has exhibited annexure B,C and D in his counter affidavit to the originating summons. Exhibit B is the result of Magama/Rijau local government area Exhibit C is the result of Riau local government area while Exhibit D is the summary result of MagamaiRijau federal constituency. Exhibit D shows that the 3rd defendant

scored the highest number of votes 13, 384……….The 3rd defendant on the other hand has also exhibited Exhibits C, D and E to his counter affidavit to the originating summons. The exhibits exhibited by the 3rd defendant are one and the same with the exhibits of the 1st defendant. The 1st defendant in his counter affidavits has denied that Baba Ali was not the returning officer for Magama local government area but one Hauwa.
The 1st defendant in his further counter affidavit has denied that the deponent of the further affidavit of statement of fact in respect of document allege to be issued by one (Baba Ali) was the returning officer in respect of the primary election of Magama local government area and that he was not the person who acted as the returning officer of Riau local government area but one Hauwa Musa Magwa for the election conducted on the 4th October, 2018.
The deponent of the further affidavit of statement of facts has essentially deny being the returning officer of Magama local government area for the primary election, he said that he was the

returning officer of Riau local government area.
With respect to the learned counsel to the 1st defendant, it is my humble view that it does not lie in the mouth of the 1st defendant who is the deponent in the 1st defendant further counter affidavit to say that Babe Ali who signed Exhibit C is not the same and one with Baba Ali, the deponent in the plaintiff’s further affidavit of statement of facts. Exhibit C emanates from the 1st defendant and it is only the officer of the 1st defendant that can deny or say that the person who signed Exhibit C is not the same person who is the deponent in the plaintiff’s further affidavit of statement of facts. In the circumstances of this case, it is only the 1st defendant who can supply the missing link. I therefore hold that the deponent in the plaintiff’s further affidavit of statement of facts and the signatory to Exhibit C are one and the same in the absence of any denial by the national chairman, national secretary or any principal officer of the 1st defendant.
From the foregoing, I find that Exhibit 7 is credible and the court will act on it …..”
(Underline mine for emphasis)

From the above, it is my view that the issues determined by the trial Court includes, who had the highest number of votes cast in the primary election conducted by the 2nd respondent, and whether the name of the aspirant with the highest number of votes was submitted to the 3rd Respondent. Generally, several issues may be raised within one or more cause(s) of action, which are necessary for the determination of the whole case. See OILSERV LTD VS GLOBAL GAS & REFINING LTD (2014)9 NWLR PT. PG 200 AT 210.
If the suit is complaining about the submission of the appellant’s name as the winner of the primary election, then obviously is complaining about the primary election which the 1st Respondent was said to have won. In the instant case, the submission/forwarding of the name of the appellant who allegedly did not participate in the primary election and had the highest number of votes cast by the 2nd respondent to INEC is one of the issues decided by the lower Court. Thus, I do not agree that the cause of action did not arise from the date of the primary election as contended by the 1st Respondent.
The finding of the

trial Court in its judgment at pages 931 earlier reproduced in this judgment that, the cause of action arose on 18th October, 2018 in my view is speculative and has occasioned a miscarriage of justice, because the 1st Respondent himself conceded that he did not in his originating processes disclose the date when the name of the Appellant was forwarded to the 3rd Respondent. The law is settled that a Court of law, should not indulge in speculating on anything. See IKEMEFUNA & ORS VS. ILONDIOR & ORS. 2018 LPELR-44840.
A careful perusal of the provision of Section 285 (9) supra, it can be said that cause of action must arise in respect of the date of an event, the date a decision was made or the date an action was done. In this case, the primary election took place on 3rd October, 2018. It is not in dispute that the 1st Respondent’s action was filed at the trial Court on 26th October, 2018 on an event (primary election) which took place on 3rd October, 2018. That is over 21 days after the primary election.
It is pertinent to note that by virtue of the provisions of Section 285 (9) of the Constitution 4th Alteration Act, 2017, the cause of action

in every pre-election matter arises from date of the occurrence action complained of, not when the cause of action becomes complete. Therefore, the Failure of the 1st Respondent to file his suit not later than 14 days, as required by Section 285 (9) of the CFRN (4th Alteration Act 2017) is fatal to his case and ousted the trial Court of its jurisdiction to entertain the matter.
I am of the view that this action is statute barred for having been filed outside 14 days prescribed by Section 285 (9) aforesaid. The effect of the statute of limitation is that the right of the Plaintiff to commence an action has been extinguished by the law.

Having held that the jurisdiction of the trial Court had been ousted, all other issues raised in this appeal have become academic and of no moment.

This appeal is adjudged to be meritorious and it is hereby allowed. The judgment of the trial Court in suit No. FHC/MN/CS/02/2019 is hereby set aside as the trial Court had no jurisdiction whatsoever to entertain the 1st Respondent’s suit filed on 26th October, 2018.
There shall be no order as to costs.

PETER OLABISI IGE, J.C.A.: I agree.

MOHAMMED BABA IDRIS, J.C.A.: I have read the lead judgment of my learned brother, ABDU ABOKI, JCA. I agree with his reasoning and conclusion in allowing the appeal. I, too allow the appeal.

Appearances:

Y.C. Maikyau, SAN with him, T.R Agbanu, Nwabueze Obasi-Obi, T.A Rapu Morris C. Duru and Nuratu UmarFor Appellant(s)

A. M. Aliyu SAN with him, Dandison Akurume Chris Kalechi Udeoyibo, H.O Umar, Esq, Chioma Okereke and Khadijah Mustapha for 1st Respondent.
Babatunde John Ogale with him, Ghani Arobo, Julius Ishola, Ayo Shedrach, Royal Lucky aToluwani Alabi for 2nd Respondent.
3rd Respondent absent and unrepresented.For Respondent(s)

Appearances

Y.C. Maikyau, SAN with him, T.R Agbanu, Nwabueze Obasi-Obi, T.A Rapu Morris C. Duru and Nuratu UmarFor Appellant

AND