USMAN ABUBAKAR TUGGAR v. ADAMU MUHAMMAD BULKACHUWA & ORS (2019)

USMAN ABUBAKAR TUGGAR v. ADAMU MUHAMMAD BULKACHUWA & ORS

(2019)LCN/13482(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2019

CA/A/388/2019

RATIO

CAUSE OF ACTION: DEFINITION

A cause of action is an entire set of facts or circumstances giving rise to an enforceable right recognizable by law. It is the factual situation on which the Plaintiff relies upon to support the remedy he seeks from Court. A cause of action arises when all the facts necessary to give the claimant a right of action have occurred. The law is settled that, it is the cause of action, as determined by the Plaintiff’s Originating Processes and Statement of Claim or depositions in the affidavit, as the case may be, that is relevant for the determination of whether a suit is statute barred See Tukur v. Gongola State (1989) 4 NWLR (Pt. 766) 272, Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 119 at 155, Umanah v. Attah (2007) All FWLR (Pt. 346) 402 at 434.PER TINUADE AKOMOLAFE-WILSON, J.C.A.

WHEN AN ACTION IS STATUTE BARRED
In Asaboro v. Pan Ocean Oil Corp. Nig. Limited (2017) 7 NWLR (Pt. 1563) at p 42, Peter Odili JSC explained succinctly thus:
“To determine whether an action is statute barred, the Court examines the originating process, statement of claim, together with the evidence on record where that has taken place, to know when the wrong in question occurred and compare it with the dates the originating processes were filed.”
In order to determine when the cause of action arises or accrues therefore, the Courts will look at the Plaintiff’s pleadings to examine when the wrong complained took place and compare it with when the date the action was filed. The period of limitation will begin to run from the date the cause of action arose or accrued. An action is statute barred if it is instituted after the period prescribed by the statute within which such an action can be commenced or filed. No Court has jurisdiction to entertain an action that is found to be statute barred- Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1, Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1 at pages 11 – 12, Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649, Congress for Progressive Change v. Yuguda (2012) All FWLR (Pt. 651) 1466 at 1471.PER TINUADE AKOMOLAFE-WILSON, J.C.A.

JUSTICES

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria

Between

USMAN ABUBAKAR TUGGAR Appellant(s)

AND

1. ADAMU MUHAMMAD BULKACHUWA
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court Abuja delivered by Hon. Justice I. L. Ojukwu on 1st April, 2019 in suit No. FHC/ABJ/CS/1240/2018 wherein the trial Court upheld the objection of the Respondents that the Appellant’s suit, a pre-election matter, was statute-barred having not been filed within fourteen days after the accrual of action, as prescribed by Section 285 (9) of the 1999 Constitution as amended. Aggrieved by this decision, the Appellant filed this appeal.

The Appellant’s claim in the Court below, as captured from his processes is that he won the primary election of the 2nd Respondent and became the validly nominated candidate of the 2nd Respondent to represent it at the Bauchi North Senatorial District in the 2019 general elections. In spite of winning the Primary Election, the Appellant only became aware that his name was removed as the validly nominated Senatorial Candidate on the 19th October, 2018 and that the 2nd Respondent failed to submit his name to the 3rd Respondent, as its validly nominated candidate.

In response, the 1st and 2nd Respondents filed a Counter Affidavit and Written Addresses stating that the 1st Respondent won the election and his name was rightfully submitted to the 3rd Respondent. The 1st and 2nd Respondents also filed Preliminary Objections to the Appellant’s suit on grounds that the Appellant’s cause of action is statute barred because according to them the Suit was filed outside the 14 day time limit.

On hearing the substantive suit and the preliminary objections, the Court below sustained the preliminary objections and held that the Appellant’s claim is statute barred, and dismissed the suit.

Dissatisfied, the Appellant filed a Notice of Appeal dated April 30, 2019, containing three Grounds of Appeal.
Parties filed their respective briefs of argument. In the Appellant’s brief, filed on the 17th of May, 2019, two issues were submitted for determination namely;
1. Considering when the appellant became aware of his exclusion as the validly nominated Senatorial Candidate of the 2nd Respondent, whether the 14 day time limit to file a suit had expired such as to entitle the Court Below to hold that the cause of action of the Appellant

was time barred?
2. The Court Below having failed to consider and determine the suit on the merits and grant the reliefs sought therein despite all the materials placed before it enabling it in that behalf, on the ground that the suit is statute barred, after deciding the preliminary objection; whether this Honourable Court is not, in the circumstance, enabled to invoke its powers under Section 15 of the Court of Appeal Act 2014, to hear and determine the suit on its merits.

The 1st and 2nd Respondents each distilled two similar issues in con, though differently couched; in their respective briefs of argument. The 3rd Respondent distilled a sole issue, similar to Appellant’s issue one. The Appellant also filed Appellant’s Reply on point of law to each of the Respondent’s brief of argument. The 1st and 3rd Respondents each raised preliminary objections in their briefs of argument to challenge the competence of ground 3 and the issue 2 distilled from the ground. Both the 1st and 2nd Respondents contend that the issue formulated from ground 3 of the Notice of Appeal has no relationship with the ground of appeal and therefore incompetent. The 3rd

Respondent added that Ground 3 does not challenge the ratio of the decision of the trial Court while the ground itself is vague, argumentative, incomprehensible and general in terms and discloses no reasonable ground of appeal.

It is apt to commence with these objections before delving into the merit of this appeal.
Ground 3 of the Notice of appeal reads:-
“The Court Below erred in law when on the ground that the Suit is statute barred after deciding the preliminary Objection failed to consider and determine the Suit on the merits and grant the reliefs sought therein despite all the materials placed before it enabling it in that behalf, and thereby came to a wrong decision which has occasioned grave miscarriage of justice.”
PARTICULARS OF ERROR
1. The Court below, with respect, clearly misconceived the cause of action of the Appellant and came to the decision that the suit is statute barred after deciding the 1st and 2nd Respondents’ Notice of preliminary objections.
2. The Court Below failed to consider and determine the Suit on the merits and grant the reliefs sought therein despite all the materials placed before it

enabling it in that behalf
3. It is a common practice now, to hear motions/objections raised against the hearing of a suit, together with the substantive matter, where time is of essence to determine the substantive matter, and the Court Below failed to do.
4. The action is time bound and this Honourable Court is empowered to deal with the appeal, as if a rehearing, in exercise of the general powers of the Court of Appeal pursuant to Section 16 of the Court of Appeal Act.

I have considered the disputed ground of appeal and the submission of the learned senior counsel for the 1st Respondent S. I. Ameh, SAN and O. O. Olowolafe Esq for the 3rd Respondent. In the first place, I agree with the submission of the learned counsel for the Appellant, Babatunde Ogungbamila Esq. that the procedure adopted by the 1st and 3rd Respondents in raising their objections is wrong. It is trite that a preliminary objection can only be filed where a party questions the competence of an appeal in its entirety in order to terminate the appeal in limine. An attack on one or more grounds of appeal, still leaving other ground(s) of appeal that can sustain the appeal does

not come within the realm or purview of preliminary objection. These preliminary objections embedded in the 1st and 3rd Respondents’ briefs of argument respectively are therefore hereby discountenanced. See Muhammed V. Military Administration Plateau State (2001) 16 NWLR (Pt. 740) 524, NDIC v. Oranu (2001) 18 NWLR (Pt. 744) 183, Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600, Obosi v. NIPOS (2013) LPELR ? 21397 (CA), Ihedioha v. Okorocha (2015) LPELR ? 25645 (CA).

However, assuming I am wrong on my pronouncement on the procedure adopted to raise the preliminary objections, I have therefore considered their merits and find the objections untenable.

Ground 3 of the Notice of Appeal as couched is comprehensible enough. It is a complaint against the judgment of the lower Court for failure to consider the merits of the case contending that it occasioned a miscarriage of justice having regard to the fact that the Court below has lost jurisdiction to entertain the matter again, having exhausted the 180 days prescribed by law; hence the invocation of Section 15 of the Court of Appeal Act.

It is a direct complaint against the whole decision of the Court for the omission to do what it ought to have done in the circumstance of this case. It is a ground of appeal within the meaning of a “ground of appeal” as defined by the Supreme Court, per Onnoghen JSC in the cited case of Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357 to mean “…the totality of the reasons why the decision complained of is considered wrong by the party appealing or the appellant or the aggrieved party.” It is a ground of appeal well founded in law. It is competent. The objections are hereby dismissed.

Let me now determine the merits of this appeal. I will however briefly state the facts of the case for quick comprehension of the issues in the appeal.

On October 3, 2018, the 2nd Respondent conducted direct primaries to elect and select its candidates for Bauchi North Senatorial District to represent it in the 2019 general elections. According to the Appellant, he won 6 out of the 7 Local Governments with a score of 71,308 votes, whilst the 1st Respondent had a score of 16,680 votes and he, the Appellant was declared the winner. Later on 4th October, 2018, he heard

rumours that the 1st Respondent was to be declared as the winner of the election by the 2nd Respondent. He made some inquires from National Chairman of the party, Adam Oshiomole. Having not been satisfied with the response and attitude of the Chairman, on 9th of October, 2018, he wrote a petition, Exhibit OAL4 to the Chairman of the 2nd Respondent. Based on the rumours that both himself (Appellant) and the 1st Respondent were given nomination forms, he also instructed his solicitors to ascertain what decision the 2nd Respondent may have taken, which report he received from his solicitors, Exhibit DAL4, on 19th October, 2018 confirming that the name of the 1st Respondent was submitted by the 2nd Respondent to the 3rd Respondent as its Senatorial candidate for the Bauchi North Senatorial District. As a result of this discovery, on the 30th of October, 2018, he filed the action leading to this appeal.

The Respondents on the other side, stated that at the end of the primary elections the Chairman of the Electoral Committee constituted by the 2nd Respondent’s National Working Committee (NWC) headed by Professor Ahmed Mohammed, who alone is mandated by Article

14(g) of the 2nd Respondent’s Guidelines to declare the aspirant polling the majority lawful votes as the winner, declared the 1st Respondent as winner of the primary election with 56,784 votes, while the Appellant scored 12,280 votes as the runner-up. The contention of the Respondents, which was upheld by the Court below, is that the Appellant, having been armed with the information, in Exhibit OAL4 since the 9th of October, 2019, that the 1st Respondent was declared the winner, his suit filed on the 30th of October, 2018 about 22 days after the cause of action arose is statute barred.

Now, having stated briefly the facts leading to this appeal, I am of the view that the issues distilled for determination of this appeal by the Appellant, though verbously inelegant, meet the real issues for determination in this appeal. I hereby adopt them. They are:-
“1. Considering when the Appellant became aware of his exclusion as the validly nominated senatorial candidate of the 2nd Respondent, whether the 14 day time limit to file a suit had expired such as to entitle the Court Below to hold that the cause of action of the Appellant was time barred? (Distilled

from Grounds 1 and 2)
2. The Court Below having failed to consider and determine the suit on the merits and grant the reliefs sought therein despite all the materials placed before it enabling it in that behalf, on the ground that the Suit is statute barred, after deciding the preliminary objection; whether this Honourable Court is not, in the circumstances, enabled to invoke its powers under Section 15 of the Court of Appeal Act 2014, to hear and determine the suit on its merits (distilled from ground 3)”.

The strong contention of the Appellant on issue one is that the learned trial Judge failed to properly evaluate the totality of the facts adduced in this case as presented by the Affidavit and documents in support of the originating summons. Rather the Court only focused on Exhibit OAL4, without taking into consideration, the undenied facts showing the series of events that followed Exhibit OAL4 to reach the decision that the cause of action arose on 9th of October, 2018 when he wrote Exhibit OAL4 instead of October, 19, 2018 “the date the Appellant only became aware of his exclusion as candidate of the 2nd Respondent” therefore the action filed on

30th of October, 2018 was filed within the 14 days time limit. On evaluation of evidence, he relied on these authorities: – WOHEREM V. EMEREUWA (2004) 13 NWLR (PT. 890) 398, IBEKWE v. I. S. E. M. B. (2009) 5 NWLR (PT. 1134) 234; SHELL B.P. PETROLEUM DEV. CO V. ONOSANYA (1976) 6 SC 89; AJAYI VS MILITARY ADMIN. ONDO STATE (1997) 5 NWLR (PT.504) 237; 7UP BOTTLING CO VS ABIOLA (2001) 29 WRN 98 AT 116.

Learned counsel for the Appellant also relied on the case of Anambra State V. Okafor (1992) 2 NWLR (Pt 224) 396 at 419 paragraph A-C where the Supreme Court held thus:-
“In matters involving the exercise of statutory power, the functions of the Courts begin only when it is alleged that the power has not been exercised in accordance with the law. Once the person or authority or body on whom the statutory power is conferred has exercised its power under the statute, any citizen of Nigeria who feels has rights are infringed thereby can by virtue of Section (6(6) (b) of the Constitution of the Federal Republic of Nigeria 1979, challenge the exercise of the power.”

He emphasized that the cause of action for the purpose of computing time, arose on 19/10/18

when the Appellant discovered the fact that the 2nd Respondent did not submit his name to the 3rd Respondent.

The 1st, 2nd and 3rd Respondents, in their respective briefs of argument articulated a common point that the cause of action accrued on 9th of October, 2018, when the Appellant became aware that the 1st Respondent was declared the winner of the primary election, by virtue of his own document, Exhibit OAL4. It was further submitted pointedly, by the learned senior counsel for the 1st Respondent that the content of the Exhibit is an admission against interest on the part of the Appellant that the cause of action accrued before or on the 9th of October, 2019. The learned counsel for the 1st, 2nd and 3rd Respondents respectively cited authorities on the Principles of Limitation Law to support their contentions. These include Kasandubu v. Ultimate Petroleum Limited (2008) 7 NWLR (Pt. 1086) 274 at pages 297 ? 298, Ikine v. Edjerode (2001) 12 SC Part II 94, Industrial Training Fund v. NRC (2007) 3 NWLR (Pt 1020) 28 at page 62, Uwazuruonye v. Governor of Imo State & ors. (2012) LPELR ? 20604 (SC), AG Federation v. Abubakar (2007) 10 NWLR

(Pt. 1041) 1 at 139. The 1st and 2nd Respondents in addition called in aid the recent judgment of the Supreme Court in All Progressive Congress and Anor. V Engr. Suleman Aliyu Lere (unreported) SC 222 2019 and juxtaposed the facts therein with the instant case to show that unlike the cited case, by Exhibit OAL4, the Appellant knew that he was not declared winner nor issued with any certificate of return to be entitled that the cause of action arose on the 19th of October when he learnt of the submission of the 1st Respondent’s name rather than his own name.
In conclusion this Court was urged to affirm the judgment of the trial Court that the Appellant’s suit is statute barred.

There is no doubt that this matter is a pre-election matter. Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999, as amended by Fourth Alteration Act, No. 21 of 2017 prescribes:-
“Notwithstanding anything to the contrary in the constitution, every pre-election matters 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 purport of the provisions of

Section 285(9) of the 1999 Constitution as amended is clear. Any suit predicated on pre-election matter filed outside the prescribed period of 14 days from the date of occurrence of the event or decision of the suit complained of is statute barred.
The dispute in this appeal is predicated on when the cause of action arose so as to determine whether or not this action was statute barred having regards the provisions of Section 285 (9) of the Constitution of the Federal Republic of Nigeria, (as amended) by the Fourth Alteration Act, No. 21 of 2017.
A cause of action is an entire set of facts or circumstances giving rise to an enforceable right recognizable by law. It is the factual situation on which the Plaintiff relies upon to support the remedy he seeks from Court. A cause of action arises when all the facts necessary to give the claimant a right of action have occurred. The law is settled that, it is the cause of action, as determined by the Plaintiff’s Originating Processes and Statement of Claim or depositions in the affidavit, as the case may be, that is relevant for the determination of whether a suit is statute barred ?

See Tukur v. Gongola State (1989) 4 NWLR (Pt. 766) 272, Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 119 at 155, Umanah v. Attah (2007) All FWLR (Pt. 346) 402 at 434.
In Asaboro v. Pan Ocean Oil Corp. Nig. Limited (2017) 7 NWLR (Pt. 1563) ? at p 42, Peter ? Odili JSC explained succinctly thus:
“To determine whether an action is statute barred, the Court examines the originating process, statement of claim, together with the evidence on record where that has taken place, to know when the wrong in question occurred and compare it with the dates the originating processes were filed.”
In order to determine when the cause of action arises or accrues therefore, the Courts will look at the Plaintiff’s pleadings to examine when the wrong complained took place and compare it with when the date the action was filed. The period of limitation will begin to run from the date the cause of action arose or accrued. An action is statute barred if it is instituted after the period prescribed by the statute within which such an action can be commenced or filed. No Court has jurisdiction to entertain an action that is found to be statute barred- Egbe v. Adefarasin (1987) 1 NWLR

(Pt. 47) 1, Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1 at pages 11 – 12, Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649, Congress for Progressive Change v. Yuguda (2012) All FWLR (Pt. 651) 1466 at 1471.

Having stated the principles of law relevant to this appeal; it is now apt to examine the processes of the Appellant so as to determine what donated the cause of action and whether this suit was filed within the period prescribed by Section 285 (9) of the 1999 Constitution (as amended).
The reliefs sought at the Court below are follows:
1. A Declaration that having been duly nominated by 2nd Defendant in respect of the election held on October 3, 2018 that the Plaintiff’s name ought to have been submitted by the 2nd Defendant to the 3rd Defendant as the true and validly nominated candidate representing the 2nd Defendant in the contest for the Bauchi North Senatorial District in the 2019 general elections.
2. A Declaration that having lost the primary election held on October 3, 2018, the 1st Defendant was not duly nominated by the 2nd Defendant and his name ought not to have been submitted by the 2nd Defendant to the 3rd Defendant as the true and

validly nominated candidate representing the 2nd Defendant in the contest for the Bauchi North Senatorial District in the 2019 general elections.
3. A Declaration that the decision by the 2nd Defendant to remove and the subsequent act of the 2nd Defendant removing and substituting the Plaintiff’s name in place of the 1st Defendant and also the submission of the 1st Defendant’s mane to the 3rd Defendant as the true validly nominated candidate representing the 2nd Defendant in the contest for the Bauchi North Senatorial District in the 2019 general elections, contrary to due process enshrined in the combined reading of Section 87 (1), (2), (3), & (9) and 153 of the Electoral Act, 2010 (as amended); Article 20 (ii & III) of the 2nd Defendant’s Constitution; paragraphs 1, 17, 16, 19, 20 & 22 of 3rd Defendant’s regulation for the conduct of political party primaries and despite the Plaintiff scoring the highest votes at the primaries is an infringement of the plaintiff’s right to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the submission of the 1st Defendant as by the 2nd

Defendant to the 3rd defendant as the true and validly nominated candidate representing the 2nd defendant in the contest for the Bauchi North Senatorial District in the 2019 general elections consequential void and without effect.
4. A DECLARATION that having been duly nominated by the 2nd Defendant by virtue of the election held on October, 3, 2018 and having been confirmed as validly nominated by the 2nd Defendant pursuant to the representative of the 3rd Defendant’s summary of candidates nominated at the primaries that the 3rd defendant is bound to recognize the Plaintiff as the true and validly nominated candidate representing the 2nd Defendant in the contest for the Bauchi North Senatorial district in the 2019 general elections.
5. AN ORDER Setting aside the purported submission of the 1st Defendant by the 2nd defendant to the 3rd Defendant as the validly nominated candidate representing the 2nd Defendant in the contest for the Bauchi North Senatorial District in the 2019 general elections.
6. AN ORDER directing the 3rd Defendant to expunge the name of the 1st Defendant from its records as the true and validly nominated candidate

representing the 2nd Defendant in the contest for the Bauchi North Senatorial District in the 2019 general elections.
7. AN ORDER that having been duly nominated by 2nd defendant by the virtue of the election held on October, 2018, and having been confirmed as validly nominated by the 2nd Defendant pursuant to the representing of the 3rd Defendant’s summary of candidates nominated at the primaries, that the Plaintiff’s name be entered by the 3rd Defendant as the true and validly nominated candidate representing the 2nd Defendant in the contest for the Bauchi North Senatorial District in the 2019 general elections.
8. An ORDER restraining the 1st Defendant from parading himself as the true and validly nominated candidate representing the 2nd Defendant in the contest for the Bauchi North Senatorial District in the 2019 general elections.
9. AN ORDER restraining the 3rd Defendant from recognizing the 1st Defendant as the true and validly nominated candidate representing the 2nd Defendant in the contest for the Bauchi North Senatorial District in the 2019 general elections.
10. AN ORDER directing the 3rd Defendant to recognize the Plaintiff as the

true and validly nominated candidate representing the 2nd Defendant in the contest for the Bauchi North Senatorial District in the 2019 general elections.
11. ANY CONSEQUENTIAL ORDER as this Honourable Court may deem fit to make in the circumstances and pursuant to the enabling laws and regulations as applicable.

The relevant depositions in the affidavit in support of the Appellant’s claims are paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 ,17, 18,19, 20, 21 and 25 reproduced hereunder:
7. The 2nd Defendant’s Bauchi North Senatorial District Primaries Election was conducted on the 3rd of October 2018 in all the wards in the 7 local governments that constituted Bauchi north Senatorial District by Voters lining up and being counted in all wards. The Local Governments are as follows:…
8. The Election was conducted by the Bauchi Electoral Committee of the 2nd Defendant sent from Abuja headed by Professor Ahmeed Bakori Mohammed, Chairman Bauchi Electoral Primaries Committee, with the 3rd Defendant representing by the Bauchi State Residential Electoral Body led by its Commissioner, Ibrahim Abdullahi.
THE ELECTIONS AND RESULTS

9. I won the elections by scoring the highest number of votes namely 71, 308 votes and as such was duly elected and returned as the candidate to represent the 2nd Defendant at the 2019 General Elections for the Senatorial District Elections for Bauchi North Senatorial District.
10. I won 6 out of the 7 Local Governments with a score of 71,308 votes.
11. The 1st Defendant had a score of 16,680 votes…
Now attached as Exhibit OAL 3 (a) – (g) are copies of the result sheet for each of the 7 Local Government constituting Bauchi North Senatorial District elections.
12. I was declared winner of the election. This was confirmed by the representatives of the 3rd Defendant who has the statutory duty to monitor, supervise and report of the outcome of the Elections. The 3rd Defendant’s made a report showing primary Elections for Bauchi State. The report established that I was the duly nominated candidate.
13. On the morning of Thursday October 4 2018, I heard rumours that the 1st Defendant, Adamu Bulkachuwa, may be announced as the winner of the Bauchi North Senatorial District Primary Elections at the 2nd Defendant’s National

Secretariat in Abuja. Immediately, my personal assistant and I left Azare in Bauchi State, for Abuja. We arrived Abuja at 7pm and I was fortunate to book an appointment with the National Chairman Adams Oshiomole that same night.
14. When I met Adams Oshiomole, I briefed him about the situation and he told me that it was not true that the 1st Defendant, Adamu Bulkachuwa, was about to be announced as the 2nd Defendant’s candidate for Bauchi North Senatorial District and that the Secretariat had not received any results from Bauchi State. At this juncture, he turned around, walked away and shut the door on my face.
15. As I was not satisfied with Adam Oshiomole’s response and attitude, I proceeded to write a petition to the Appeals Committee of the 2nd Defendant through the Chairman of the 2nd Defendant. Even though they did not write a response to my petition, I learnt from the Secretary of the 2nd Defendant that my name will be submitted by the 2nd Defendant to the Defendant. Now shown to me and attached as Exhibit OAL 4 is the copy of the Petition I wrote to the Chairman of the 2nd Defendant.
16. My Petition expressed my concern that the 1st

Defendant is to be declared the validly nominated candidate for Bauchi North Senatorial District. I attached my results to establish that I and not the 2nd Defendant won the Election as candidate of the 2nd Defendant for the Bauchi North Senatorial District.
17. On 12th October, 2018, the 3rd Defendant’s office in Bauchi State who monitored and saddled with the responsibility to give effect to results of primary elections conducted by political parties for the purpose of participation in general elections sent the names of the winners of the 3 Senatorial Zone to the 2nd Defendant’s head office in Abuja and I was declared winner of Bauchi North Senatorial District
18. I verily believe that this Report is the product of an impartial and neutral umpire. The Report is signed by Ahmed Waziri, Baba Bukar Usman and Ibrahim Abdullahi, who is the Residential Electoral Commissioner of Bauchi State.
19. On Thursday, October 18, 2018, I went to the 2nd Defendant’s National Secretariat to pick up my 3rd Defendant’s INEC nomination form for senate (form E. C4B and form CF001).
20. But I was told that I needed clearance from my State Governor which will

be confirmed by the 2nd Defendant National Chairman because all Senatorial Candidates are issued clearance by their State Governors. I then went to my State Governor, His Excellency M. A. Abubakar for clearance. My Chairman, thereafter I proceeded to the 2nd Defendant’s National Secretariat where I was given the Forms i.e E.C.4B and form CF001 that confirms my nomination.
21. Yet, the rumours persisted that the 1st Defendant had also given the same forms to the 1st Defendant to fill as the candidate of the 2nd Defendant for the same Bauchi North Senatorial District.
22. I was confused. But I went ahead to fill my form and submit it to the 2nd Defendant for onward transmission to the 3rd Defendant before the deadline of 12 Midnight of 18 October, 2018 issued by the 3rd Defendant.
23. As I was still perturbed with the rumoured double dealing of the 2nd Defendant in relation to the 2nd Defendant’s move to also nominate the 1st Defendant as its candidate for the same Bauchi North Senatorial District General Election, I instructed my solicitors, Olisa Agbakoba Legal, OAL, to make enquiries at the offices of the 3rd Defendant, with a view to

ascertaining what decision the 2nd Defendant may have taken and report the correct state of things to me.
24. On Friday, 19 October, 2018, I received a report from OAL that indeed the 2nd Defendant decided to submit the name or the 1st Defendant to the 3rd Defendant as the 2nd Defendant’s Senatorial candidate for the Bauchi North Senatorial District for the Bauchi North Senatorial District Elections schedule to hold on the 2nd day of March, 2019 or any other date appointed by the 3rd Defendant.
25. On that day, 19 October, 2018, it became very clear to me that the 2nd Defendant decided not to submit my INEC nomination Forms for Senate (form E.C.4B and form CF001) to the 3rd Defendant. This was in spite of the fact that the 2nd Defendant gave me form E C. 4B and form CE001 to fill so as to submit my name as the 2nd Defendant’s nominated candidate to the 3rd Defendant for the Bauchi North Senatorial District Elections scheduled to hold on the 2nd day of March 2019 or any other date appointed by the 3rd Defendant.

The Appellant has contended that he did not have all the facts necessary for him to file his action until 19/10/18 when it became clear

to him that his name was not submitted to the 3rd Respondent by the 2nd Respondent as the candidate that won the primary election. The Appellant created a misleading contrived impression that he only had rumours that he was not declared the winner and that these rumours were only informed after the report of the investigation carried out by his solicitors, given to him on 19/10/18.
The principle of law is that a right of action accrues only when complainant becomes aware of the wrong committed against him. See Jallco v. Owoniboys Tech Service (1995) 4 NWLR (PT 319) 53 Malina V Usman (2014) 16 NWLR (PT 1432) 160. The pertinent question to be determined therefore is when the Appellant became aware of the fact that he was not declared as the winner of the primary election so as to be nominated as the candidate of the 2nd Respondent and ipso facto, whose name was to be submitted by the 2nd Respondent to the 3rd Respondent as the candidate of the 2nd Respondent for the general election into the office of the Senator representing the Bauchi North Senatorial District. The deposition in paragraph 15 is a determinant factor as to ascertain when the Appellant

became aware of the fact that he was not declared the winner of the primary. The petition referred to in paragraph 15 is Exhibit OAL4 is reproduced in full hereunder:-
09 October, 2019 (sic)
“The Chairman,
All Progressive Congress (APC)
40 Blantyre Crescent,
WUSE 2 Abuja.
Dear Sir,
PETITION AGAINST ANNOUNCEMENT OF ADAMU BULKACHUWA AS SENATORIAL CANDIDATE FOR BAUCHI NORTH SENATORIAL DISTRICT.
I was a candidate in the primary elections that held on Wednesday the 3rd of October, in the above mentioned senatorial zone. It is with deep shock that after the elections, I heard an announcement today by the committee chairman Prof Ahmed Bakori Mohammed that Adamu Bulkachuwa has been declared the winner.
Sir, I have attached the results of the said election as you can see and are aware the reported winner only won one (1) local government out of seven (7)
As a member of this movement since 2006 in the ANPP and a candidate I 2011 of the CPC is a House Representative member whose election was over turned by the PDP and a loyal member of the APC, I demand that justice be done as I believe that this what our

movement stands for .
Please find attached afore mentioned documents. Sincerely yours
Signed
Usman A. Tuggar”
(Underlying for emphasis)
The wordings of this petition are clear and unambiguous. A mere glance at Exhibit OAL4 shows glaringly, as the heading depicts, that is it is a letter complaining against the announcement of the 1st Respondent as the winner of the primary election held on 3rd of October, 2018 as declared by Chairman of the Election Committee, Prof Ahmed Bakori Mohammed; a committee which the Appellant in paragraph 8 of his affidavit in support of the originating summons admitted was sent from Abuja to conduct the primaries, and also who by the guidelines of the 2nd Respondent has the sole authority to make a declaration and return a winner on the said election.
The letter is dated 9th October, 2019 (Sic) wherein he stated that… “I heard the announcement today…” Invariably, the import of this letter is that the alleged ‘rumours’ of the declaration of the 1st Respondent as winner of the said elections which he deposed to in paragraphs 13 and 14 had been clarified and became a reality from the announcement of the

declaration he personally heard, as first hand information, on the 9th of October. The alleged rumours which he heard on the 4th of October, were no more speculative, but confirmed by the announcement made by the appropriate authority and personally heard by the Appellant himself. It is therefore clear, without any equivocation whatsoever, that the cause of action arose from the announcement he heard on the 9th of October, 2018 when the 2nd Respondent allegedly refused to declare him, the Appellant, the winner of the primaries he alleged to have won. The normal course of events dictates that it is the name of the declared winner of the primary election that will be forwarded to the 3rd Respondent, INEC. This is also backed up by law. By virtue of the provision of Section 87 (4) (c)(ii) of the Electoral Act, 2010 an aspirant with the highest number of votes at the end of voting shall be declared the winner of the primary election of the party and aspirant’s name shall be forwarded to the Independent National Electoral Commission (INEC) as the candidate of the party. See Jev v. Iyortyom (2014) 14 NWLR (Pt. 1428) 575. It is therefore concomitant that the 1st

Respondent’s name is forwarded to INEC after being declared the winner of the Primaries.
The stand of the Appellant that the cause of action arose on the 19th of October, when he confirmed that his name was not forwarded to the 3rd Respondent is therefore faulty and untenable. This is because the act of sending the name of the 1st Respondent to INEC (3rd Respondent) is an event after the action complained of by the Appellant that he was not declared the winner of the primary election and which grievance ignited filing this suit in the Court below. The argument of the Appellant that his grievance is premised on the day he confirmed that the name of the 1st Respondent was the one forwarded to the 3rd Respondent is a clear attempt to mislead this Court so as to evade the limitation period as prescribed by Section 285 (9) of the Constitution as amended. An unfounded and misconceived argument of the Appellant cannot donate or confer jurisdiction on the Court where the Court is devoid of such a jurisdiction. See Mobil Oil Production Unlimited v. Monokpo (2003) 18 NWLR (Pt. 852) 346 at 434.
?Election matters, pre-election matters inclusive, are sui generis,

and time is of the essence of election matters. The period of limitation will begin to run from the actual date the action complained of accrued and not from the date of subsequent action or event that played out after the winner of the election has been declared. This is what the Appellant in this case prays this Court to hold by his gripping tenaciously to October 19, 2018, the date of the confirmation that his name was not forwarded to 3rd Respondent when he had earlier known that he was not declared the winner of the election. The learned trial Judge was therefore on firm ground when he held as follows:
“The Plaintiff seems to argue that he only became “fully” aware on the 19th day of October, 2018 of the fact that 1st Defendant was declared winner and candidate of the 2nd Defendant and that it was only then that his cause of action arose.
With due difference to learned counsel to the plaintiff, this claim or argument is ontological and the Court is not enamoured with that line of argument.
By the Plaintiff’s/Horse’s mouth, he admitted in Exhibit OAL4 which was dated 9th day of October, 2018 that he heard with his own ears, an announcement

on the 9/10/2018, by the Electoral Committee Chairman Prof. Ahmed Mohammed that 1st Defendant Adamu Bulkachuwa has been declared winner of the primary election in contestation. He also stated that he had the results of the election and even attached it to the letter to the Chairman of the 2nd Defendant. He further stated in the letter and his evidence before the Court that he had the results from the seven local government areas and was declared winner.
The rumour he heard according to him was on 4th day October, 2018. See paragraph 13 of the affidavit in support. By the letter of 9th day of October, 2018, the rumour has become reality by the declaration and announcement of 1st Defendant as winner. By 9th day of October, 2018, the Plaintiff was armed with all the essential facts, materials and circumstances which gave him a cause of action. In other words, his right of action had arisen by 9th day of October, 2018. The fact that Plaintiff has to wait for his Solicitor to confirm the obvious will not extend this time. See ACTION CONGRESS OF NIGERIA V. INEC & ORS. (2013) LPELR – 20300 SC., where the Apex Court in a similar matter noted

that time waits for no one. See also CHIEF AMADI V. INEC & ORS. (2012) 2 SCM 1.
(pages 956 ? 960 of volume 2 of Record of Appeal)
The date of the occurrence of the event, decision or action complained of in this suit is definitely the 9th of October, 2018. The Appellant and the 1st and 2nd Respondents, in articulation of their respective positions relied on the recent case of All Progressive Congress & anor v. Engr. Suleiman Aliyu Lere (Unreported) SC. 222/2019, delivered on the 10th of May, 2019 on the issue of when the cause of action arises, whether it is on the day the primary election is held or the date of submission of the candidate’s name to INEC.
The 1st and 2nd Respondents cited this case and juxtaposed the facts to distinguish the case from the instant appeal while the Appellant, in his reply brief argued that the Appellants case is on all fours with the cited case and this Court was therefore urged to hold that the cause of action accrued on 19th of October when he became aware of the fact that the 1st Respondent’s name, instead of his name was forwarded to INEC’s office by the 2nd Respondent. I do not agree with the

contention of the Appellant’s counsel that the issue in the cited case supports the Appellant’s case that the cause of action crystallised on 19/10/18. The issue in that case is also in respect of the primary election; but one conducted for Lere Federal Constituency of Kaduna State which election was held on 7th October, 2018 while the suit challenging the outcome of the Primary Election was filed on 30th October, 2018, 23 days after the election was conducted. The contention of the Plaintiff was that his cause of action accrued on 18th October, 2018, when the 2nd Appellant’s name was forwarded to INEC instead of his name, who won the election held on 7th October, 2018, the date the primary election was conducted.
?The trial Court dismissed the action holding that it was statute barred; the suit having been commenced 23 days after 7th October, 2018, which date the trial Court adjudged as the accrual date of ’cause of action’. Both the Court of Appeal and Supreme Court, held otherwise, noting that the case was clearly that of substitution of name and therefore the cause of action arose on 30th October, 2018 when the name of the 2nd Appellant was unlawfully

forwarded to the 3rd Respondent (INEC). The distinguishing factors in the cited case and this instant appeal is that unlike the cited case, the 1st Respondent and his party, APC filed counter-affidavits to the originating summons disputing the plaintiff’s case, unlike the cited case, where counter-affidavits were not filed and the facts deposed to concerning the 1st and 2nd were deemed admitted. However, and more Respondents significant, is the fact that the 3rd Respondent, INEC, which monitored the election in that case specifically confirmed, and proved by exhibit Lere 7, that is, the declared result, also Exhibit Lere 8, the Monitor Report of INEC which included the whole results of those who won the Primary Election for the sixteen Federal House of Representatives Constituencies in Kaduna State, that the Appellant, who was plaintiff at the High Court, Kaduna, actually won the primary election which was monitored by the 3rd Respondent.
“Furthermore, by the deposition of the Appellant, he became aware of the substitution when the name of the 2nd Respondent was forwarded to the 3rd Respondent instead of his own.”
(See page 22 of the Court of Appeal judgment ? CA/K/40/2019).

The Supreme Court in the said judgment held that Plaintiff placed before the Court his certificate of his return as winner of the primaries, which is evidence that he won the primaries, he was declared the winner and therefore his name ought to have been forwarded to INEC.
However, in the appeal at hand, in the Court below, all the Respondents filed counter-affidavits to the Originating Summons, to oppose the Appellant’s Claim that he won the primaries. The Appellant did not place before the trial Court any certificate of return affirming him as the winner of the elections or any list containing his name as the winner of the primaries.
?Better still, what is paramount to note is that, unlike the cited case where the Appellant only became aware of the wrong committed against him when his name was substituted on the 18th October, 2018, in this case, as analysed earlier, the Appellant, by this depositions in paragraphs 15 of the affidavit in support of his originating summons, and particularly by the contents of Exhibit OAL4, became aware of the alleged wrong against him on 9th October, 2018 when he heard an

announcement by the Election Committee Chairman that the 1st Respondent has been declared the winner of the primary election held on 3rd October, 2018. The law is that a right of action accrues when the complainant becomes aware of the wrong committed against him. See Jallco v. Owoniboys Tech. Service (1995) 4 NWLR (Pt. 319) 53, MUlina v. Usman (2014) 16 NWLR (Pt. 1432) 160. The facts in Appeal No. SC222/2019 though similar to the appeal at hand is not identical. The facts and circumstances are not on all fours with the one at hand. It cannot therefore be made applicable to bind this Court mutantis mantandi. In other words, it cannot blindly be made a precedent to be followed by this Court in this appeal. The law is that each case is decided on its own peculiar facts and circumstances. See Paul Onyia v. The State (2008) LPELR ? 2743 (SC) pages 19 -20, Williams v. Rising Voluntary Funds Society (1982) 1 All NLR (Pt. 1), Skye Bank Plc & Anor v. Chief Akinpelu (2010) LPELR ? 3073 (SC) 40 (2010) 9 NWLR (Pt. 1198) 179, APC v. INEC (2015) 8 NWLR (Pt. 1462) 531 at 583, Nig. Agip Oil Coy. Limited v. Nkweke (2016) 7 NWLR (Pt 1512) 588 at 624.

The law is trite that for the purposes of limitation law, time begins to run when all the facts have happened which are material to be proved for the Plaintiff to succeed. In this case, the cause of action crystallized when the Appellant heard the announcement on 9th October, 2019 that the 1st Respondent had been declared the winner of the primary election, instead of him, the Appellant, that allegedly claimed to be the winner. The Supreme Court has stated clearly that election matters are time-bound and so statutory provisions relating to time are to be strictly construed. See Yaki v. Bagudu (2015) 18 NWLR (Pt. 1491) 228 at 23.
In this appeal, the Appellant, having filed this suit on the 30th of October, 2018, about 21 days after the cause of action arose, instead of 14 days as prescribed by the provisions of Section 285(9) of the 1999 Constitution (as amended), this action is statute barred. The law is settled that where an action is statute barred, Court is devoid of jurisdiction to entertain the matter. The trial Court was right to have dismissed the suit.
Issue one is resolved in favour of the Respondents, against the Appellant.

On issue 2, I have considered the submissions of the Appellant and the 1st, 2nd and 3rd Respondents on whether the Court of Appeal, in the circumstances of this case can invoke its power under Section 15 of the Court of Appeal Act, to assume jurisdiction to determine the merits of the suit filed before the trial Court. There are conditions that must exist for Section 15 of the Court of Appeal Act to apply. These are : (a). That the High Court or trial Court had the legal power to adjudicate the matter before the appellate Court entertained it; (b). That the real issue raised by the claim of the appellant at the High Court or trial Court must be capable of being distilled from the grounds of appeal; (c). That all necessary materials must be available to the Court for consideration; (d). That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and (e). That injustice or hardship will follow if the case is remitted to the Court below.
All the conditions stated above must be met before the Court of Appeal can exercise its power. See Obi v. INEC (2007) vol. 9 JSC. 1, Okoronkwo v. FRN (2014) 11

WRN 127 at 151 -152.
It is not in doubt that having regards to the circumstances of this case, conditions (b) to (e) are present in this appeal. It must be stressed that all the necessary materials were before the trial Court for it to determine the matter on the merit. The law is trite that where a trial Court is faced with the challenge to jurisdiction, it is enjoined to consider the merits of the case along with the application challenging jurisdiction. The Alteration of the 1999 Constitution by Act No. 21 of 2017, Section 285 (8) thereof stipulates:-
“Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment.”
This section was specifically provided for in the Constitution so as to avoid injustice to a party where a trial Court erroneously holds that the Court has no jurisdiction to entertain the matter, specifically having regard to the fact that election matters are time bound. The Appellant,

recognizing that time is of the essence of time in pre-election matters submitted in his reply on point of law that “it is clear that the Court Below has lost jurisdiction to further entertain the matter. The 180 days prescribed by the Constitution for the Court to hear and determine the matter, having been spent.”
This Court therefore asked parties to address the Court whether this appellant could still be seised of jurisdiction to invoke Section 15 of the Court of Appeal Act when the lower Court itself is now devoid of the jurisdiction to re-hear the matter. Expectedly, the Appellant insisted that this Court “is empowered to deal with the appeal, as though a re-hearing, in the exercise of the general powers of the Court of Appeal Act pursuant to Section 15 of the Court of Appeal Act” (See paragraph 4.35 of Appellant’s brief of argument and 215 and 2.17 of the Appellant’s Reply to 1st Respondent’s brief of argument.)
I do not agree with the contention of the Appellant that this appellate Court is seised with the jurisdiction to exercise its power pursuant to Section 15 of the Court of Appeal Act to “re-hear” a pre-election matter when the time within

which the trial Court ought to have determined the matter has expired.
Section 285 (10) of the Constitution (as amended) stipulates that:-
“A Court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit.”
The determination of the matter within this period includes the consideration of the matter on the merit for the “final judgment” of the case as provided for in the 1999 Constitution (as amended). Where a trial Court fails to determine the merit of a case and by the effluxion of time will no longer be in a position to “re-hear” the matter, this appellate Court will not be in a position to exercise its discretion pursuant to Section 15 of the Court of Appeal Act, to step into the shoes of the trial Court to “re-hear” the matter. The law is trite that time is of the essence of election matters.
The time prescribed by the Constitution to take appropriate steps in any election or pre-election is rigid and sacrosanct and cannot be elongated for any reason whatsoever to clothe the Court with the jurisdiction to entertain the suit when the prescribed period has been spent. The period

of 180 days prescribed in Section 285 (10) of the 1999 Constitution, (as amended) is not only for the period of hearing the matter at the trial Court. It also includes the period of trial de novo as ordered by the Court of Appeal, or a “re-hearing” by the Court of Appeal pursuant to Section 15 of the Court of Appeal Act. The apex Court, made this clear in the case of ANPP v. Goni (2012) 7 NWLR (Pt. 1298) 147 at pages 182 -183 where it held thus:
“The time fixed by the constitution is like the rock of Gibraltar or Mount Zion which cannot be moved. That the time cannot be extended or expanded or elongated in any way enlarged, that if what is to be done is not done within the time fixed, it lapses as the Court is thereby robbed of jurisdiction to continue to entertain the matter.”
Later at page 191, the Court held as follows:
“The period of one hundred and eighty days provided in Section 285(6) of the 1999 Constitution (as amended) is not limited to trials but also be de novo trials that may be ordered by an Appeal Court. Once an election petition is not concluded within one hundred and eighty days from the date the petition was filed by the

petitioner as provided by Section 285(6), an election tribunal no longer has jurisdiction to hear the petition and this applies to re-hearings. The period of one hundred and eighty days shall at all times be calculated from the date the petition was filed.
(underlying for emphasis)
Assumption of jurisdiction by this Court when the time within which the trial Court can entertain the matter has expired will invariably be tantamount to elongating the time fixed by the Constitution, a power which this Court has no right to exercise.
The essence of Section 15 of the Court of Appeal Act is for this Court to assume jurisdiction and act as if it were the Court of first instance to determine the suit filed in the trial Court. One of the essential conditions for the invocation and assumption of original jurisdiction is that the lower Court or trial Court from which the appeal arose has the jurisdiction to entertain the suit. In this appeal, I have also earlier held that the lower Court was devoid of the jurisdiction to entertain the matter because the action is statute-barred having regard to Section 285(9) of the 1999 Constitution (as amended). Once an

action is statute barred, it is dead for all purposes. It can never be revived. The Statute of Limitation removes the right of claim and leaves the Plaintiff with a bare action which he cannot enforce. See Eboigbe v. NNPC (Supra) Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637. The apex Court in A- G, Adamawa State & 2 ors. v. AG of the Federation (2014) LPELR ? 23221 (SC) at page 3435 encapsulated the legal implication of an action that is statute barred where Peter ? Odili JSC stated that:
Where a party’s action is statute barred the following legal consequences will follow:-
a. The party would lose his right of action;
b. The party would lose the right of enforcement;
c. The party would also irretrievably lose the right to judicial relief;
d. The party would only have an empty cause of action which no Court will assist him to enforce.
See also Daudu v. University of Agriculture, Makurdi & 4 ors. (2002) 17 NWLR (Pt. 796) 363 at pages 384 -385” per PETER ODILI, JSC (pages 34 ? 35, paras. F ? A)
?Let me emphasize as it is replete in the law reports, that the conspicuous and undisputed effect

of limitation law is that no legal proceedings can be properly or validly instituted after the expiration of the prescribed period. See Amaechi v. INEC (2013) 4 NWLR (Pt. 1345) 595 at 631. Since no Court can assist a Plaintiff whose action is statute barred, this appellate Court cannot assume jurisdiction in this matter. Section 15 of the Court of Appeal Act cannot be employed to revive this action.

The two issues raised in this appeal are hereby resolved against the Appellant and in favour of the Respondents. This appeal lacks merit. It is dismissed. I hereby affirm the judgment of the Federal High Court, Abuja delivered on the 18th day of April, 2019 in suit No. FHC/A13)/C5/1240/2018.
Parties are to bear their respective costs.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE TINUADE AKOMOLAFE-WILSON, JCA. I agree with the reasoning, conclusions and orders therein.

?The appellant’s own petition against the announcement of the 1st respondent as the winner of the 3-10-2018 primary election of the 2nd respondent’s candidate for the

general election of Senator for Bauchi North District establish beyond argument that the cause of action for suit No. FHC/ABJ/CS/1240/2018 occurred or accrued on 9-10-2018, the date the appellant heard the announcement of the 1st respondent as the winner of the primary election.

This petition which is exhibited with and attached to the affidavit in support of the Originating Summons as exhibit OAL4 states thusly- “I was a candidate in the preliminary elections that held on Wednesday the 3rd of October, in the above mentioned senatorial zone. It is with deep shock that after the elections, I heard an announcement today by the committee chairman Prof Ahmed Bakori Mohammed that Adamu Bulkachuwa has been declared the winner.
Sir, I have attached the result of the said election as you can see and are aware the reported winner only won one (1) local government out of seven (7).”

After being shocked by the announcement of the 1st respondent as the winner of the 3-10-2018 primary elections, the appellant waited until after the 19-10-2018, when the 2nd respondent submitted the name of the 1st respondent to the 3rd respondent as its candidate for the said

general election, before he filed the suit leading to this appeal on 30-10-2019.

The submission of the 1st respondent’s name to the 3rd respondent as the 2nd respondent’s candidate for the said election is the product or the result of the 9-10-2018 declaration or announcement of the 1st respondent as the winner of the 2nd respondent’s said primary election.

So the 14 days period prescribed by S.285(9) of the 1999 Constitution for filing a pre-election matter shall be reckoned from 9-10-2018, the date of the announcement or declaration of the 1st respondent as the winner of the primary election that held on 3-10-2018. 14 days from 9-10-2018 ended or expired on 22-10-2018. The appellant filed the suit leading to this appeal on 30-10-2018, about 22 days after the cause of action arose. The trial Court was right when it held that the suit was statute barred and it therefore lacked the jurisdiction to entertain it.
The 180 days prescribed by S.285 (10) of the 1999 Constitution as amended for a Court to deliver its judgment from the date of the filing of the pre-election matter expired on 29-4-2019. So as at 3-6-2019, when this appeal was heard, its

success would have been in vain as the merit of the suit could no longer be remitted to the trial Court for trial, having lost its jurisdiction to decide the matter, and this Court was no longer in a position to try and decide the merit of the case in exercise of its power in S.15 of the Court of Appeal Act 2004, as it lacks the jurisdiction to decide the matter after the expiry of 180 days from 30-10-2019 when the suit was filed in the trial Court by virtue of S.285 (10) of the 1999 Constitution which states that- “A Court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit.”

For the above reasons and the more detailed ones contained in the well considered lead judgment, I also dismiss this appeal.

MOHAMMED BABA IDRIS, J.C.A.: I have had the advantage of reading in draft the leading judgment of my learned brother, TINUADE AKOMOLAFE-WILSON, JCA. I agree with His Lordships reasoning and conclusions.

There is no doubt that jurisdiction is fundamental and indispensible in the administration of justice. It is the hub of all

judicial processes so much that the validity or otherwise of any proceeding turns on its existence or non-existence. It cannot therefore be toyed with by any party or the Court else the action will inescapably be mired in the caustic consequences of lack of jurisdiction, a nullity. See generallyUTIH VS. ONOYIVWE (1991) 1 SCNJ 25; OKORO VS. EGBUOH (2006) 15 NWLR (PT. 1001) 1; DAPIANLONG VS. DARIYE(2007) 8 NWLR (PT. 1036) 332; ANPP VS. REC (2008) 18 NWLR (PT. 1090) 453; INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 427; NATIONAL ASSEMBLY VS. C. C. I. CO. LTD (2008) 5 NWLR (PT. 1081) 519; A.G. BENUE STATE VS. UMAR (2008) 1 NWLR (PT. 1068) 311.
In determining jurisdiction, for matters such as this, begun by originating summons, the affidavit in support of the originating application is used to determine jurisdiction. A defendant’s counter affidavit serves no useful purpose in the arduous task of ascertaining if a Court has the jurisdiction to adjudicate over a matter. See PDP VS. ABUBAKAR (2007) 3 NWLR (PT. 1022) 515; INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 427; NIMR VS. AKIN-OLUGBADE (2008) 5 NWLR (PT. 1079) 68; ACTION CONGRESS VS. INEC

(2007) 18 NWLR (PT. 1065) 50; VEEPEE IND. LTD VS. COCOA IND. LTD (2008) 13 NWLR (PT. 1105) 486.

Was the action filed by the Appellant statute barred having regard to the provision of Section 285 (9) of the 1999 Constitution (as amended)? Section 285 (9) provides that: Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.
There is no doubt that the Appellant was complaining about the announcement made on the 9th of October 2018 that the 1st Respondent had been declared the winner of the primary elections that held on Wednesday 3rd October 2018 to elect the senatorial candidate for Bauchi North Senatorial district.
By Section 285 (9) of the 1999 Constitution, the date of the occurrence of the event, decision or action complained of in the suit is the determinant factor in calculating when the cause of action arose and when same became statute barred. See generally AMSAN VS. OBIDEYI (2005) 14 NWLR (PT. 945) 322; ASABORO VS. PAN OCEAN OIL (NIG.) LTD (2006) 4 NWLR (PT. 971) 595;

ADEKOYA VS. FHA (2008) 11 NWLR (PT. 1099) 539; AGBAI VS. INEC (2008) 14 NWLR (PT. 1108) 417. If a wronged party fails to institute an action on schedule as permitted by law, the suit becomes stale and statute barred. His right to sue has been taken away without necessarily determining it. See generally CHIGBU VS. TONIMAS (NIG.) LTD (2006) 9 NWLR (PT. 984) 189.
It is pertinent to appreciate cause of action before determining when the cause of action in this case accrued. Here, the definition offered by Fatayi-Williams, JSC (as he then was) inSAVAGE VS. UWECHIA (1972) 3 SC 214 AT 221 is helpful:
“Cause of action is defined in the Stroud’s Judicial Dictionary as the set of circumstances giving rise to an enforceable claim. To our mind it 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 complaint and consequent damage.”
See also DUNU VS. OLADEJO (2004) 17 NWLR (PT. 903) 621; ODUKO VS. GOVT, EBONYI STATE (2004) 13 NWLR (PT. 891) 487; ONADEKO VS. UBN PLC (2005) 4 NWLR (PT. 916) 440; UBN PLC VS. UMEODUAGU (2004)

13 NWLR (PT. 390) 352; DAIRO VS. UBN PLC (2007) 16 NWLR (PT. 1059) 99; CHEVRON (NIG.) LTD VS. L. D. (NIG.) LTD (2007) 16 NWLR (PT. 1059) 168; BAKARE VS. N. R. C. (2007) 17 NWLR (PT. 1064) 606; IBETO CEMENT CO. LTD VS. A ? G, FED. (2008) 1 NWLR (PT. 1069) 470; ABUBAKAR VS. B.O. & A. P. LTD (2007) 18 NWLR (PT. 1066) 319; SPDC, NIG VS. OKONEDO (2008) 9 NWLR (PT. 1091) 85; WILLIAMS VS. WILLIAMS (SUPRA); OMOMEJI VS. KOLAWOLE(2008) 14 NWLR (PT. 1106) 180.
A cause of action accrues to a party from the time or date when a duty is breached or an act occurs which warrants the party injured thereby to take action in law to assert or protect his violated legal right. See WOHEREM VS. EMEREUWA (2004) 13 NWLR (PT.890) 398; MATANMI VS. GOV. OGUN STATE (2004) 5 NWLR (PT. 866) 255; OWIE VS. IGHIWI (2005) 5 NWLR (PT. 917) 184; UBN PLC VS. UMEODUAGU (SUPRA); ONADEKO VS. UBN (2005) 4 NWLR (PT. 916) 440; AMEDE VS. UBA (2008) 8 NWLR (PT. 1090) 623; ADEKOYA VS. FHA (2008) 11 NWLR (PT. 1099) 539.
And in determining the existence or otherwise of a cause of action, a Court leafs through the writ of summons or statement of claim, not the statement of defence. See

UBN PLC VS. UMEODUAGU (2004) 13 NWLR (PT. 890) 352; DADA VS. AINA (2008) 6 NWLR (PT. 1084) 549. And in the case of actions begun by originating summons, the Court leafs through the supporting affidavit.
In paragraph 15 of the affidavit filed by the appellant in support of his action at the trial Court, a petition marked as exhibit OAL4 was referred to, and it is clear from the said exhibit that by the 9th of October 2018 the appellant herein knew that the 1st Respondent had been declared the winner of the primary election that held on 3rd October 2018.
In my view, the cause of action accrued to the appellant from the time or date when the act which warranted him to take action against the Defendants at the trial Court occurred in order for him to assert or protect his violated legal right. The date is the 9th of October, 2018, so that this action ought to have been filed not later than 14 (fourteen) days from that date in line and in fulfillment with the stipulation in the Fourth Alteration. Having filed this action before the trial Court on the 30th day of October, 2018, it is clearly outside the 14 (fourteen) days period prescribed by

law. This is fatal to the case.

Having resolved that the trial Court had no vires to entertain the suit, the second issue raised in this appeal has become academic and of no moment. The jurisdiction of this Court is denuded when an action or issue becomes academic, without live or tangible issues to be determined. See generally A. G. ANAMBRA STATE VS. A. G. FED. (2005) 9 NWLR (PT. 931) 572; AMAECHI VS. INEC (2007) 9 NWLR (PT. 1040) 54; UZOHO VS. NCP (2007) 10 NWLR (PT. 1042) 302; STATE VS. AZEEZ (2008) 14 NWLR (PT. 1108) 439.

It is for these brief reasons and the very detailed reasoning in the leading judgment that this appeal is adjudged to be unmeritorious and it is hereby dismissed.

Appearances:

BABATUNDE OGUNGBAMILA with him, CHIKE OKAFORFor Appellant(s)

S. I AMEH (SAN) with him, R. O. ADAKOLE, D, M, IDOKO and C. E. ODUM – for 1st Respondent
TEMITAYO LASAKI- for 2nd Respondent
O. O. OLOWOLAFE with him, I. T. MOMOH – for 3rd Respondent.For Respondent(s)

Appearances

BABATUNDE OGUNGBAMILA with him, CHIKE OKAFORFor Appellant

AND