USMAN BELLO KUMO v. HON. UMAR KAWUWA BARAMBU & ORS
(2019)LCN/12914(CA)
RATIO
ACTION: LIMITATION OF ACTION
“The question raised in this issue for determination is limitation of action. Limitation of action is a statutory defence. The general rule is that where there is a right there is a remedy; that is to say, where there is a cause of action, there is a remedy. However, the legislature has prescribed certain periods of limitation for instituting certain actions. The law is that where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a claimant who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed Odubeko Vs Fowler (1993) 7 NWLR (Pt 308) 637, Shell Petroluem Development Corporation Vs Farah (1995) 3 NWLR (Pt 382) 148, PN Udoh Trading Co. Ltd Vs Abere (2001) 11 NWLR (Pt 723) 114, Muhammed Vs Military Administrator, Plateau State (2001) 16 NWLR (Pt 740) 524, Sulgrave Holdings Inc Vs Federal Government of Nigeria (2012) 17 NWLR (Pt 1329) 309. So, when an action is said to be statute barred, what it connotes is that the claimant may have an actionable cause of action, but his recourse to judicial remedy is voided; no proceedings could be brought to prosecute the action Yusuf Vs Co-operative Bank Ltd (1994) 7 NWLR (Pt 359)” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: CAUSE OF ACTION
“A cause of action consists of two elements, namely: (i) the wrongful act of the defendant which gives the claimant his cause of complaint; and (ii) the consequent damage Savage Vs Uwechia (1972) 2 SC 213, Adeosun Vs Jibesin (2001) 11 NWLR (Pt 724) 290, National Electric Power Authority Vs Olagunju (2005) 3 NWLR (Pt 913) 602, Bakare Vs Nigerian Railway Corporation (2007) 17 NWLR (Pt 1064) 606, Nworika Vs Ononeze-Madu (2019) LPELR 46521(SC). A cause of action accrues when the cause of action becomes complete so that an aggrieved party can begin and maintain an action Mobil Oil (Nig) Plc Vs Malumfashi (1995) 7 NWLR (Pt 406) 246, Adekoya Vs Federal Housing Authority (2008) 11 NWLR (Pt 1099) 539. In Adimora Vs Ajufo (1988) 3 NWLR (Pt 80) 1 at 17” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: JURISDICTION
“It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A Court cannot do more than this Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of March, 2019
CA/J/69/2019
JUSTICE
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
USMAN BELLO KUMO Appellant(s)
AND
1. HON. UMAR KAWUWA BARAMBU
2. ALL PROGRESSIVES CONGRESS
3. HAMMAN ADAMA ALI KUMO (DATTIWA)
4. MUSA MUHAMMED WURO BIRIJI
5. MOHAMMED BELLO SANTURAKI
6. UMARU WAZIRI
7. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Federal High Court sitting in Gombe in Suit No FHC/GM/CS/25/2018 delivered by Honorable Justice N. I. Afolabi on the 7th of February, 2019.
The first Respondent was the claimant in the lower Court while the Appellant and the second to the seventh Respondents were the defendants. The action was commenced by Originating Summons and the first Respondent presented three questions for determination; namely:
i. Whether in view of the provisions of Article 7(iv), Article 9.3(i), Article 13.4(v), Article 20(v) of the Constitution of the All Progressives Congress, October 2014 (as amended) and Article 3(l) of the Guidelines issued by the All Progressives Congress for the Nomination of Candidates for the 2019 General Elections indirect primaries, the second Respondent was not in total breach of its Guidelines issued for the conduct of the 2019 primary election into Akko Federal Constituency of Gombe State having allowed the Appellant to contest the said primary election on the 4th of October, 2018.
ii. Whether in view of the provisions of Article 7(iv), Article 9.3(i), Article 13.4(v), Article 20(v) of the Constitution of the All Progressives Congress and Article 3(l) of the Guidelines issued by the All Progressives Congress for the Nomination of Candidates for the 2019 General Elections indirect primaries, the Appellant was not automatically disqualified from contesting the said primary as the candidate of the second Respondent in Akko Federal Constituency of Gombe State in the 2019 General Election at the House of Representative in the National Assembly.
iii. Whether in view of Section 31(1) and Section 87(4)(c)(i) and (ii) of the Electoral Act, 2010 (as amended) and Article 14(ii) of the second Respondents Guidelines for the Nomination of Candidates for the 2019 General Elections, the first Respondent is not entitled to have his name forwarded/sent to the seventh Respondent by the second Respondent having polled the third highest number of votes cast in the second Respondents House of Representatives Primary Election conducted on the 4th of October, 2018 for Akko Federal Constituency of Gombe State in the 2019 General Election in view of the facts and circumstances of this case.
Consequent on the resolution of the three questions, the first Respondent sought the following reliefs:
1. A declaration that the act of the second Respondent in not disqualifying the Appellant from participating in the primary election held on the 4th of October, 2019 to elect the second Respondents candidate for 2019 General Election in respect of Akko Federal Constituency of Gombe State at the House of Representatives in the National Assembly is a total breach and infraction of Article 3(l) of the second Respondents Guidelines issued as procedure for the Nomination of Candidates for the 2019 General Elections.
2. A declaration that by virtue of Article 7(iv), Article 9.3(i), Article 13.4(v), Article 20(v) of the Constitution of the All Progressives Congress and Article 3(l) of the Guidelines issued by the All Progressives Congress for the Nomination of Candidates for the 2019 General Elections, the Appellant was automatically disqualified from seeking for elective office under the banner of the second Respondent as the second Respondents candidate for Akko Federal Constituency of Gombe State in the 2019 General Election.
3. A declaration that in view of Section 31(1) and Section 87(4)(c)(i) and (ii) of the Electoral Act, 2010 (as amended) and Article 14(ii) of the second Respondents Guidelines for the Nomination of Candidates for the 2019 General Elections, the first Respondent is entitled to have his name forwarded/sent to the seventh Respondent by the second Respondent as the second Respondents candidate for Akko Federal Constituency of Gombe State in the 2019 General Election having polled the third highest number of votes cast in the primary election conducted on the 4th of October having regard to the facts and circumstances of this case.
4. An order that the first Respondent is the candidate of the second Respondent in the House of Representatives election for Akko Federal Constituency of Gombe State in the 2019 General Election.
5. An order directing the seventh Respondent to remove the name of the Appellant as the House of Representatives candidate of the second Respondent for Akko Federal Constituency of Gombe State in the 2019 General Election and replacing the said name in its records with the name of the first Respondent.
6. An order that the first Respondent be declared the rightful candidate for Akko Federal Constituency of Gombe State under the platform of the second Respondent and consequently issued a Certificate of Return should the second Respondent insist of fielding the Appellant or any other candidate other than the first Respondent and the seventh Respondent accepting such candidature.
7. An order of perpetual injunction restraining the seventh Respondent from accepting any other than the name of the first Respondent as the second Respondents candidate for Akko Federal Constituency of Gombe State in the 2019 General Election.
The originating summons was filed on the 31st of October, 2018 and it was supported by an affidavit, with exhibits attached, deposed on the 31st of October, 2018, together with a written address of arguments. The first Respondent also filed a further affidavit in support of the originating summons on the 16th of November, 2018 with exhibits attached. The Appellant filed a memorandum of conditional appearance on the 13th of November, 2018 and a counter affidavit to the originating summons, with exhibits attached, on the 15th of November, 2018 and written address on arguments. The second Respondent also filed caused a memorandum of conditional appearance and caused a counter affidavit to be filed on its behalf to the originating summons on the 21st of November, 2018 with exhibits attached and it was accompanied by a written address. The 3rd Respondent similarly filed a counter affidavit to the originating summons on the 7th of December, 2018 and it was accompanied by a written address. The first Respondent filed two reply affidavits to the counter affidavits of the Appellant and of the second Respondent and they were deposed on 10th of December, 2018, with exhibits attached, and they were each accompanied with reply arguments on points of law.
It was not in dispute between the parties that the Appellant, the first Respondent and the third Respondent were aspirants in the primary election conducted by the second Respondent on the 4th of October, 2018 to select its candidate for the 2019 General Elections for the Akko Federal Constituency of Gombe State into the House of Representatives. It was not in dispute that the primary election was free and fair and at the end of which the Appellant was declared the winner with One Hundred and Sixty votes and the third Respondent came second with Eighty Four votes and the first Respondent came third with Seventy Seven votes. It was not in dispute that the Appellant was a member of the Peoples Democratic Party until the 5th of February, 2018 when he resigned there from and joined the second Respondent on the 7th of February, 2018.
The case of the first Respondent in the affidavits in support of the originating summons was that by the Guidelines issued by the second Respondent as the procedure for the nomination of candidates for the 2019 General Elections, an aspirant must have been a member of the second Respondent for at least one year before he/she could qualify to seek elective office. It was his case that from the period, the 7th of February, 2018, when the Appellant joined the second Respondent to the 4th of October, 2018 when the primary election of the second Respondent was conducted to select its candidate for the Akko Federal Constituency of Gombe State into the House of Representatives was not up to one year. It was his case that after the primary election, the third Respondent, the aspirant who came second in the primaries, informed him about the ineligibility of the Appellant to contest and that he was no longer interested in the race and was willing to support him in the fight on the issue.
It was the case of the first Respondent that on the 9th of October, 2018, he made an appeal to the Appeal Committee set up by the second Respondent to look into complaints on the conduct of primary election that the Appellant was not qualified to seek for any elective office and that his own name should be forwarded to the seventh Respondent as the candidate for the election in place of the Appellant so as not to indulge in an act that will constitute an infraction of its Constitution and Guidelines. It was his case that the Appeal Committee sat and concluded its hearing on the 16th of October, 2018 and upheld his appeal, but that the National Working Committee of the second Respondent considered the report of the Appeal Committee at its sitting of the 17th of October, 2018 and it rejected the recommendation of the Appeal Committee and ratified the name of the Appellant as its candidate for the Akko Federal Constituency of Gombe State into the House of Representatives and it forwarded the name of the Appellant to the seventh Respondent on the 18th of October, 2018.
It was the case of the first Respondent that his further appeal to the National Working Committee of the second Respondent by a letter dated the 19th of October, 2018 was discountenanced and that the second Respondent acted in flagrant breach of Article 3(1) of its Guidelines. It was his case that the purported waiver granted to the Appellant to contest the primary election by the second Respondent was not done in accordance with Article 3(1) of the Constitution of the Second Respondent as such waiver can only be granted to an intending member who was yet to join the second Respondent. It was his case that the application of the Appellant for waiver was personally written by him and addressed to the Chairman of the second Respondent on the 19th of September, 2018 and not through the Ward, Local Government Area, State and Zonal Committees of the second Respondent as stipulated in the Constitution. It was his case that the Appellant was not granted a waiver by the second Respondent before he joined the party on the 7th of February, 2018 and that the waiver granted to the Appellant by the second Respondent was not done as required by the Constitution of the second Respondent and it was a further breach of the Constitution.
The case of the Appellant in his response affidavit was that the first Respondent was no longer a member of the second Respondent and has since moved over to the Social Democratic Party of Nigeria and was the candidate of that party for the 2019 General Elections for the Akko Federal Constituency of Gombe State into the House of Representatives, based on the final list of contestants released by the seventh Respondent. It was his case that the National Executive Committee and the National Working Committee of the second Respondent exercised the power of waiver conferred on them by the provisions of Article 31, Rule 2 of the Constitution of the second Respondent in his favour and waived the requirement of Article 3(l) of the Guidelines in the best interest of the party. It was his case that it was incorrect that the Appeal Committee of the second Respondent upheld the appeal of the first Respondent against his candidature, and that, rather, the appeal was dismissed as he won a very free, fair and transparent primary election held for the Akko Federal Constituency of Gombe State into the House of Representatives.
It was the case of the Appellant that neither he nor the second Respondent breached the provisions of either the Constitution or of the Guidelines issued by the second Respondent and that the first Respondent was bound by the provisions of the Constitution of the second Respondent as well as by the decisions of the National Executive Committee and National Working Committee of the party. It was his case that prior to the conduct of the primary election that produced him as the candidate of the second Respondent for the Akko Federal Constituency of Gombe State into the House of Representatives, he was screened by the Electoral Panel set up by the second Respondent and found to have met all the requirements and was cleared as a fit and proper person to participate in the said primary election.
The case of the second Respondent in its response affidavit was that the first Respondent was no longer a member of its party and has since decamped to the Social Democratic Party of Nigeria and was an active member and the candidate of that party for the 2019 General Elections for the Akko Federal Constituency of Gombe State into the House of Representatives, based on the final list of contestants released by the seventh Respondent. It was its case that the National Executive Committee and National Working Committee of the party exercised their constitutional power of waiver conferred by the provisions of Article 31, Rule 2 of its Constitution to decisively waive the requirement of Article 3(l) of the Guidelines for Nomination of Candidates for the 2019 General Elections in favour of the Appellant. It was its case that upon a successful conduct of the primary elections held on the 4th of October, 2018 the Appellant won with a clear margin and was nominated as its flag bearer for the Akko Federal Constituency of Gombe State into the House of Representatives in the 2019 General Elections and that the result was upheld by the Appeal Panel of the second Respondent having found that the complaint of the first Respondent was unmeritorious and baseless.
On his part, the third Respondent confirmed, in his counter affidavit, most of the case of the first Respondent on the originating summons and he deposed that he decided to accept the outcome of the primary elections and to support the candidacy of the Appellant so that the second Respondent can succeed in its bid to capture the seat from the Peoples Democratic Party in the 2019 General Election. It was his case that he was still interested in the office but was willing to wait for another opportunity and to serve his community in other capacities.
The records show that the Appellant caused to be filed a notice of preliminary objection by way of a motion on notice on the 15th of November, 2018 and it prayed that the lower Court should dismiss and/or strike out the suit on four grounds; namely
(i) that the first Respondent lacked the locus standi to institute and maintain the action;
(ii) that the originating summons did not disclose a reasonable cause of action against the Appellant and the second Respondent;
(iii) that the action was academic, hypothetical and an abuse of Court process and was thus null and void ab initio; and
(iv) that the lower Court lacked jurisdiction because the action was commenced in noncompliance with the provisions of the 1999 Constitution (as amended).
The notice of preliminary objection was supported by an affidavit and also by a further affidavit deposed to on the 11th of December, 2018. The second Respondent too filed a notice of preliminary objection by way of a motion on notice on the 21st of November, 2018 on the same grounds as those of the Appellant and it was supported by an affidavit and also a further affidavit deposed to on the 11th of December, 2018. The first Respondent filed similar counter affidavits to the two notices of preliminary objection of the Appellant and the second Respondent and they were both deposed to on the 27th of November, 2018. The parties filed and exchanged written addresses of arguments on the notices of preliminary objection.
The lower Court took arguments on the notices of preliminary objection of the Appellant and second Respondent along with those on the substantive claims of first Respondent on the originating summons together. The lower Court delivered a Ruling/Judgment on the processes and wherein it dismissed both notices of preliminary objection and it granted the claims of the first Respondent in part, particularly prayers One and Two on the originating summons and part of prayer Five; the order directing the seventh Respondent to remove the name of the Appellant as the House of Representatives candidate of the second Respondent for Akko Federal Constituency of Gombe State in the 2019 General Election. The lower Court refused all the other prayers sought by the first Respondent.
The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal dated the 7th of February, 2019 and containing five grounds of appeal against it. The notice of appeal was subsequently amended with leave of this Court and the Appellant filed an amended notice of appeal dated the 25th of February, 2019 and containing ten grounds of appeal on the 27th of February, 2019 and the amended notice of appeal was deemed properly filed and served by this Court on the 7th of March, 2019. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 25th of February, 2019 on the 27th of February, 2019.
Counsel to the first Respondent filed a brief of arguments in response and it was dated the 3rd of March, 2019 and was filed on the 4th of March, 2019. Counsel to the Appellants filed a reply brief of arguments to the first Respondents brief of arguments and it was dated and filed on the 6th of March, 2019. Counsel to the third Respondent filed a brief of arguments dated the 8th of March, 2019 on the same date and Counsel to the Appellant filed a reply brief thereto on the 11th of March, 2019. Counsel to the second and seventh Respondents withdrew their respective briefs of arguments and consequent on which Counsel to the Appellant also withdrew his reply brief to the seventh Respondents brief of arguments and the three briefs of arguments were struck out by the Court. The fourth to the sixth Respondents did not attend Court and did not file a brief of arguments on the appeal.
The first Respondent was also dissatisfied with the portion of the judgment of the lower Court refusing part of his claim and he caused his Counsel to file two notices of cross appeal. The first notice of cross appeal dated the 7th of February, 2019 contained one ground of appeal and was filed on the 8th of February, 2019. The second notice of cross appeal also containing one ground of appeal and dated the 15th of February, 2019 was filed on the 18th of February, 2019. In arguing the cross appeal, Counsel to the first Respondent relied on the notice of cross appeal filed on the 18th of February, 2019 and he filed a Cross Appellant brief of arguments dated the 3rd of March, 2019 on the 4th of March, 2019. The Appellant as the first Cross Respondent caused his Counsel to file a brief of arguments dated the 6th of March, 2019 on the same date and to which Counsel to the first Respondent filed a Cross Appellant reply brief of arguments dated the 11th of March, 2019 on the 12th of March, 2019. The second Respondent as the second Cross Respondent caused its Counsel to file a brief of arguments dated the 7th of March, 2019 on the same date. The third Respondent as the third Cross Respondent also caused his Counsel to file a brief of arguments dated the 8th of March, 2019 on the same date. The seventh Respondent as the seventh Cross Respondent withdrew his brief of arguments and same was struck out. The fourth to the sixth Respondents as the fourth to the sixth Cross Respondents did not attend Court and did not file a brief of arguments.
At the hearing of the appeal, Counsel to the parties relied on and adopted their respective briefs of arguments on the appeal and on the cross appeal as their arguments in this case.
This Court will start its consideration of issues in this appeal from the appeal of the Appellant. Counsel to the Appellant distilled four issues for determination in the appeal and these were:
i. Whether the first Respondents suit commenced by his Originating Summons dated 30th October, 2018 and filed on 31st October, 2018 is statute barred by virtue of the provisions of Section 2 of the Fourth Alteration (No 21) Act 2017, which altered Section 285 of the Constitution of the Federal Republic of Nigeria 1999.
ii. Whether the lower Court was right in assuming jurisdiction to hear and determine the first Respondents suit, which subject matter is the second Respondents intra party issue and the first Respondent lacked the locus standi to institute an action against it.
iii. Whether the lower Court was right in determining the first Respondents suit on the basis of affidavit evidence even in the face of copious conflicting affidavit evidence adduced by parties as well as the first Respondents unsubstantiated and unparticularized allegation of forgery of the seventh Respondents Form CF001 evidencing that he was a member of the Social Democratic Party (SDP) and its flag bearer for the House of Representatives, National Assembly, representing Akko Federal Constituency, Gombe State.
iv. Whether the first Respondent proved his case and was entitled to the judgment in part entered in his favour nullifying the second Respondents waiver issued to the Appellant, disqualifying him as the second Respondents flag bearer for the House of Representatives, National Assembly, representing Akko Federal Constituency, Gombe State and directing the seventh Respondent to remove his name as such.
Counsel to the first Respondent and Counsel to the third Respondent conceded that there were four issues for determination in the appeal and they both agreed with the essence of the four issues for determination formulated by Counsel to the Appellant and they each only tried to reframe the wordings of the issues for determination. This Court accepts the four issues for determination as formulated by the Counsel to the Appellants. The appeal is the Appellants and his Counsel is in the best position to frame the issues they desire this Court to determine and arising from the Appellants complaints in the notice of appeal. The issues shall be resolved seriatim. The Court will chop, merge and change some of the issues in the course of the deliberations.
Issue One
Whether or not the action as filed by the first Respondent in the lower Court was not statute barred and thus incompetent?
In arguing the issue for determination, Counsel to the Appellant referred to the cases Madukolu Vs Nkemdilim (1962) 2 SCNLR 341, Abacha Vs FRN (2014) 6 NWLR (Pt 1402) 43 and Oloba Vs Akereja (1988) 3 NWLR (Pt 84) 508 in reiterating the constituent elements of jurisdiction as laid down by the Courts and to the cases of A.G, Anambra Vs A.G. Federation (2007) All FWLR (Pt 379) 1218, Nigeria Unity Line Vs Usman (2014) 6 NWLR (Pt 1404) 546 and Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, amongst many others, in restating the fundamentality of jurisdiction to adjudication of matters by a Court of law and the fact that jurisdiction is threshold issue and he also referred to the cases of APGA Vs Anyanwu (2014) 7 NWLR (Pt 1407) 541 and Inakoju Vs Adeleke (2007) 7 NWLR (Pt 1025) 427 in asserting that it is the main claim of a claimant that would be looked at in determining the issue of jurisdiction. Counsel referred to the provisions of Section 285(9) of the 1999 Constitution (as amended by the Fourth Alteration No 21 Act of 2017) and stated that by the provision a pre-election, like the present one, must be filed not later than fourteen days from the date of the occurrence of the event, decision or action complained of and he referred to several authorities on interpretation of statutes.
Counsel stated that, looking at the questions posed for determination on the originating summons as well as the reliefs sought and the contents of the affidavit in support, the event complained about by the first Respondent was the primary election of the second Respondent to select its candidate for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State and that the first Respondent admitted that this occurred on the 4th of October, 2018. Counsel stated that fourteen days from the 4th of October, 2018 elapsed on the 18th of October, 2018 and that the action of the first Respondent which was filed on the 31st of October, 2018, was thirteen days outside the time allowed by the 1999 Constitution (as amended). Counsel stated that this meant the suit was statute barred and this invariably translated to that the action did not disclose a valid cause of action as the cause of action ceased to exist immediately the time to file the action expired and he referred to the cases Plateau Construction Ltd Vs Aware (2014) 6 NWLR (Pt 1404) 519 and Arabambi Vs Advanced Beverage Ind. Ltd (2005) 12 SCM 75, amongst others.
Counsel stated that the provisions of Section 285(9) of the 1999 Constitution (as amended by the Fourth Alteration No 21 Act of 2017) was a limitation law provision and he referred to the cases of Ibrahim Vs Lawal (2015) 17 NWLR (Pt 1489) 490 and SPDC (Nig) Ltd Vs Farah (1995) 3 NWLR (Pt 382) 148, amongst many others, on the effect of a limitation law on an action filed outside the stipulated period. Counsel stated that since the action of the first Respondent is statute barred and did not thus disclose a reasonable cause of action, it meant also that the suit is academic, moot, hypothetical in nature, constitutes an abuse of process and fit for dismissal and he referred to the cases of Min., W. &. T., Adamawa State Vs Yakubu (2013) 6 NWLR (Pt 1351) 481, Plateau State Vs AGF (2006) 3 NWR (Pt 967) 346, Mabamije Vs Otto (2016) All FWLR (Pt 828) 883 and Ikpekhia Vs FRN (2015) All FWLR (Pt 771) 1597, amongst many others. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.
In his response arguments on the first issue for determination, Counsel to the first Respondent reproduced the provisions of Section 285(9) of the 1999 Constitution (as amended by the Fourth Alteration No 21 Act of 2017) and stated that the key words therein were the date of the occurrence of the event, decision or action complained of in the suit and these words refer to the date of occurrence of the cause of action. Counsel referred to the cases of Williams Vs Williams (2008) 10 NWLR (Pt 1095) 364 and Sifax Nigeria Ltd Vs Migfo Nigeria Ltd (2015) LPELR 24655(CA), amongst others, in conceding that for the purpose of calculating the limitation period, it is to the writ of summons and statement of claim that the Court will look at, and that these are the originating summons and the affidavit in support in the present case. Counsel stated that looking at the whole of the originating summons and the affidavit in support, it is clear that the action complained about occurred on the 18th of October, 2018 when the second Respondent forwarded the name of the Appellant to the seventh Respondent as its candidate for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State contrary to the request of the first Respondent to the Appeal Committee that it was his name that should be submitted instead.
Counsel stated that the submission of Counsel to the Appellant that the cause of action agitated in the suit occurred on the 4th of October, 2018 was an attempt to suppress vital facts on record of the cumulative events that led to the filing of the suit such as the appeal made by the first Respondent to the Appeal Committee set up by the second Respondent to look into complaints as all aspirants were bound to utilize the internal mechanism for redress contained in the Constitution and Guidelines of the second Respondent. Counsel stated that it was the event, action and decision of the second Respondent on the 18th of October, 2018 to forward the name of the Appellant to the seventh Respondent that completely sealed the fate of the first Respondent and that this was the date of accrual of the cause of action and the suit filed in the lower Court on the 31st of October, 2018 was filed within the fourteen days allowed by the 1999 Constitution (as amended) for filing such actions and he referred to and quoted copiously from the case of Adimora Vs Ajufo (1988) 1 NSCC 1005 in support of his assertion. Counsel restated and repeated the arguments over and over in urging the Court to find that the cause of action arose on the 18th of October 2018 and to resolve the first issue for determination in favour of the first Respondent.
In his own contribution, Counsel to the third Respondent canvassed arguments and cited authorities in support of the position of the first Respondent and stated that the case as made out by the first Respondent on the originating summons and affidavit in support was to challenge the failure of the second Respondent to disqualify the Appellant in accordance with its Constitution and Guidelines and that it was on 18th of October, 2018 when the second Respondent forwarded the name of the Appellant to the seventh Respondent that the cause of action arose. Counsel urged the Court to discountenance the arguments of the Counsel to the Appellant that the cause of action arose on the 4th of October, 2018 and to uphold the contention of Counsel to the first Respondent that the cause of action accrued on the 18th of October, 2018 and to resolve the first issue for determination in favour of the first Respondent.
The question raised in this issue for determination is limitation of action. Limitation of action is a statutory defence. The general rule is that where there is a right there is a remedy; that is to say, where there is a cause of action, there is a remedy. However, the legislature has prescribed certain periods of limitation for instituting certain actions. The law is that where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a claimant who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed Odubeko Vs Fowler (1993) 7 NWLR (Pt 308) 637, Shell Petroluem Development Corporation Vs Farah (1995) 3 NWLR (Pt 382) 148, PN Udoh Trading Co. Ltd Vs Abere (2001) 11 NWLR (Pt 723) 114, Muhammed Vs Military Administrator, Plateau State (2001) 16 NWLR (Pt 740) 524, Sulgrave Holdings Inc Vs Federal Government of Nigeria (2012) 17 NWLR (Pt 1329) 309. So, when an action is said to be statute barred, what it connotes is that the claimant may have an actionable cause of action, but his recourse to judicial remedy is voided; no proceedings could be brought to prosecute the action Yusuf Vs Co-operative Bank Ltd (1994) 7 NWLR (Pt 359) 676, PN Udoh Trading Co. Ltd Vs Abere (1996) 8 NWLR (Pt 467) 479. In other words, in an action caught by limitation law, it is not that a claimant does not have a right of action or a competent cause of action, but only that the cause of action or the right of action is unenforceable Muhammed Vs Military Administrator, Plateau State supra.
The relevant limitation of action provision in the instant case is Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended by the Fourth Alteration No 21 Act of 2017). It reads:
Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.
It is not in dispute that action of the nature filed by the first Respondent in the lower Court is a pre-election matter and it comes within the classes of cases covered by the above provision. It is settled law that the period of time prescribed by a statute of limitation begins to run the moment a cause of action accrues to the person entitled to it. Thus, when dealing with a limitation statute, it is of utmost importance to ascertain the exact date of accrual of a cause of action. A cause of action consists of every fact which would be necessary for a claimant to prove, if traversed, in order to support his right to judgment. It is the bundle or aggregate of facts which the law recognizes as giving the claimant a substantive right to make a claim for the relief or remedy being sought. It is every fact which is material to be proved to entitle the claimant to succeed or all those things necessary to give a right to relief in law or equity Ogoh Vs ENPEE Industries Ltd (2004) 17 NWLR (Pt 903) 449, Williams Vs Williams (2008) 10 NWLR (Pt 1095) 364, Duzu Vs Yunusa (2010) 10 NWLR (Pt 1201) 80, Nigerian Ports Authority Vs Beecham Pharmaceutical PTE Ltd (2012) 18 NWLR (Pt 1333) 454, Atiba Iyalamu Savings & Loans Ltd Vs Suberu (2018) LPELR 44069(SC).
A cause of action consists of two elements, namely: (i) the wrongful act of the defendant which gives the claimant his cause of complaint; and (ii) the consequent damage Savage Vs Uwechia (1972) 2 SC 213, Adeosun Vs Jibesin (2001) 11 NWLR (Pt 724) 290, National Electric Power Authority Vs Olagunju (2005) 3 NWLR (Pt 913) 602, Bakare Vs Nigerian Railway Corporation (2007) 17 NWLR (Pt 1064) 606, Nworika Vs Ononeze-Madu (2019) LPELR 46521(SC). A cause of action accrues when the cause of action becomes complete so that an aggrieved party can begin and maintain an action Mobil Oil (Nig) Plc Vs Malumfashi (1995) 7 NWLR (Pt 406) 246, Adekoya Vs Federal Housing Authority (2008) 11 NWLR (Pt 1099) 539. In Adimora Vs Ajufo (1988) 3 NWLR (Pt 80) 1 at 17, Oputa, JSC, put the issue thus:
In dealing with limitation of actions, one of the most fundamental questions to answer is: when did the cause of action accrue? This crucial question is also the most difficult, as the answer will depend on the surrounding circumstances of each particular case. But may be a collateral question has to be answered first what is meant by cause of action? In its best definition it consists of every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment. . When these facts have occurred and provided there are in existence a competent plaintiff and a competent defendant, a cause of action is said to accrue to the plaintiff because he can then prosecute an action effectively. Thus, accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his action.
Date is thus very material when an occasion arises for finding out when a cause of action arose Omotayo Vs Nigerian Railway Corporation (1992) 7 NWLR (Pt 254) 471, Anigboro Vs Sea Trucks (Nig) Ltd (1995) 6 NWLR (Pt 399) 35, National Electric Power Authority Vs Olagunju (2005) 3 NWLR (Pt 913) 602, Duzu Vs Yunusa (2010) 10 NWLR (Pt 1201) 80. In Woherem Vs Emereuwa (2004) 13 NWLR (Pt 890) 398 at page 415 F-H, Iguh, JSC put it thus:
It cannot be disputed that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a Court action in assertion or protection of his legal right that has been breached. The duration of a right or cause of action which is conferred on an injured party is necessarily limited and does not last till eternity. It lapses after the date the statute of limitation proclaims that no such legal action or proceedings may lawfully be taken or commenced by an injured party. It is therefore necessary when dealing with statutes of limitation to determine firstly the precise date the cause of action accrued because time will start to run from the moment the cause of action arose.
To determine the period of limitation and resolve the question of whether an action is statute barred, a Court looks at the writ of summons and the statement of claim alleging when the wrong was committed which gave the claimant a cause of action and compares that date with that on which the writ of summons was filed. This can be done without taking oral evidence. If the time on the writ of summons is beyond the period allowed by the limitation law then the action is statute barred Egbe Vs Adefarasin (1987) 1 NWLR (Pt 47) 1, National Bank of Nigeria Ltd Vs Arison Trading & Engineering Co. Ltd (2006) 16 NWLR (Pt 1005) 210, Military Administrator, Ekiti State Vs Aladeyelu (2007) 14 NWLR (Pt 1055) 619, Hassan Vs Aliyu (2010) 17 NWLR (Pt 1223) 547, JFS Investment Ltd Vs Brawal Line Ltd (2010) 18 NWLR (Pt 1225) 495, Olora Vs Adegbite (2013) 1 NWLR (Pt 1334) 40. A cause of action has to be looked at from the peculiar circumstances of any given case. Thus, when a cause of action can be said to have arisen varies from one case to another and it is always the function of the facts of the case, which gives rise to a right of action thus entitling a person to judicial relief Amede Vs United Bank for Africa (2008) 8 NWLR (Pt 1090) 623. Therefore, in construing the writ of summons and statement of claim, a Court must concern itself with the fundamental cause of action being pursued in the action by the plaintiff and not peripheral issues; it is the time for commencing an action to enforce that fundamental cause of action that is material. This point was made by Mangaji, JCA in Humbe Vs Attorney General, Benue State (2000) 3 NWLR (Pt 649) 419 at 439 A-E thus:
I am of the firm view that the finding of the learned trial Judge is correct and it is a product of the facts as disclosed in the writ of summons and the amended statement of claim. I entertain no doubt at all that the fundamental and only claim of the Appellant was about his dismissal from the service of the Benue State Government. As can be clearly seen in the writ and amended statement of claim all references to the Appellants subsequent retirement without benefit and Governments firm stand on it was merely made as a reference point and a casual passing remark. What the Appellant prayed for in both the writ and amended statement of claim was, a declaration that the purported dismissal of the plaintiff by the second Defendant as per letter of dismissal is unlawful null and void and of no effect whatsoever. It should be realized that what the Appellant sought to be nullified is the letter of dismissal dated 27th of June, 1984. He used the third person singular in both the writ and the amended statement of claim by the use of the word is for the obvious reason that the issue of his retirement without benefit and the Governments firm stand on it was only a passing remark. It should be realized that the Appellant did not seek to have the letter .issued in December 1996 which reaffirmed Governments stand on the retirement of the Appellant from service without benefit nullified. Neither did he seek for the nullification of the letter .dated 30th June, 1980 effectively reviewing his dismissal from service to retirement without benefits as is contained in exhibit K to the Appellants counter affidavit in opposition to the Respondents motion. Therefore the only rational deduction and as clearly reflected in the writ and the amended statement of claim is that the cause of action arose on June 27, 1984 when the Appellant received the letter conveying to him the fact of his dismissal.
Reading through the three questions set for the determination of the lower Court on the originating summons as well as the reliefs sought and the totality of the facts deposed in the affidavit in support, it is very clear that the fundamental cause of action prosecuted by the first Respondent was the failure of the second Respondent to disqualify the Appellant from contesting the primary election held on the 4th of October, 2018 for the selection of its candidate for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State. It was the contention of the first Respondent that the Appellant was not qualified to contest in the primary election because according to Article 3(l) of the Guidelines issued by the second Respondent for the Nomination of Candidates for the 2019 General Elections as he had not been a member of the party for one year at the time of the primary election.
This was the fundamental cause of action canvassed by the first Respondent on the originating summons and everything else, such as the claims for the substitution of the name of the Appellant with that of the first Respondent, for a declaration that the first Respondent was the candidate of the second Respondent for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State, etc, were built on and dependent on the fundamental cause of action and their success depended on the success of the fundamental cause of action. Reading through the entire originating summons and the affidavit in support, it is also very clear that the failure of the second Respondent to disqualify the Appellant from contesting the primary election crystallized on the day the primary election took place with the Appellant as one of the aspirants, and this was on the 4th of October, 2018; this is the material date.
Counsel to the first Respondent urged the Court to find that the period of limitation did not begin to run until his appeal to the Appeal Committee set up by the second Respondent to look at the complaints arising from the primary elections concluded deliberations and the name of the Appellant was forwarded to the seventh Respondent by the second Respondent as its candidate for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State and that this was on the 18th of October, 2018. It must be stated, firstly, that the issue of the qualification of the Appellant to contest the primary election did not arise at the primary election of the 4th of October, 2018; it was only consummated at the primary election. The issue arose during the screening exercise of candidates for election carried out by the Screening Committee of the second Respondent on the 18th of September, 2018 and at the end of which the Appellant was passed qualified to contest at the primary election, to the knowledge of the first Respondent. Thus, the complaint of the first Respondent to the Appeal Committee on the non-qualification of the Appellant to contest at the primary election cannot qualify as a complaint directly emanating from the conduct of the primary election.
Secondly and more importantly, the principles on the running of time in limitation of action matters have been stated and restated by the Courts. In computing time when statute of limitation begins to run, the day the cause of action arose as a rule is excluded and the day of filing the action is included Mkpedem Vs Udo (2000) 9 WLR (Pt 673) 631, Adesule Vs Mayowa (2011) 13 NWLR (Pt 1263) 135. Once a cause of action is complete, the issue of its suspension will not arise. The fact that the claimant made subsequent pleas, protests and wrote petitions for a number of years to upturn the act that led to the cause of action does not affect the time of accrual of the cause of action. In fact, it is scraggy reasoning to hold on the belief that the appeals, petitions, pleas and protests of a plaintiff will have the effect of suspending the date of accrual of the cause of action
Humbe Vs Attorney General, Benue State (2000) 3 NWLR (Pt 649) 419.
Also, the fact that the claimant was stopped from instituting his action within the time allowed by law because of a criminal trial he had to undergo is not reason to suspend the commencement of the limitation period Ogoh Vs ENPEE Industries Ltd (2004) 17 NWLR (Pt 903) 449. Again, it has been held that, in an action for salaries that has been wrongly withheld, the cause of action accrues from the date the salaries were due, and not when a demand for payment was made Lagos University Teaching Hospital and Management Board Vs Adewole (1998) 5 NWLR (Pt 550) 406, Nigeria National Petroleum Corporation Vs AbdulRahman (2006) 12 NWLR (Pt 993) 202, Kasim Vs NNPC (2013) 10 NWLR (Pt 1361) 46. Further, while the Courts promote peaceful settlement of issues, the law is that, in considering whether an action is statute barred, negotiation between the parties will not stop the period of limitation from running from the date of accrual of cause of action Nwadiaro Vs Shell Petroleum Development Co Ltd (1990) 5 NWLR (Pt 150) 322, Eboigbe Vs NNPC (1994) 5 NWLR (Pt 437) 649 and Elukpo Vs Ibrahim (2013) LPELR 20235(CA).
Additionally, the Courts have stated over and over that a political party is akin to a club or a voluntary association and that the rules and regulations constitute an agreement amongst the members inter se and between the members and the political party. Now, looking at the provisions of the Article 16 of the Guidelines of the second Respondent on appeals to the Appeal Committee and to the National Working Committee, it was not stated therein that exhaustion of the appeal process shall constitute a condition precedent to the right of commencement of an action in Court. The law is that in such circumstances the appeal process cannot act to suspend the running of the limitation period.
In Murmansk State Steamship Line Vs Kano Oil Millers Ltd (1974) LPELR 1927(SC), where the agreement between the parties contained an arbitration clause and it was not expressly stated that the arbitration clause shall be a condition precedent to the running of the limitation period (the Scott Vs Avery Clause), the Supreme Court held that the limitation period shall commence running on the date of accrual of the cause of action and not from the date of conclusion of the arbitration. The Supreme Court quoted with approval the decision of the House of Lords in Pegler v. Railway Executive (1948) A.C. 332, that, in such circumstances, the “cause of arbitration” is the same as the “cause of action” and that a fireman who brought his action more than six years after his conditions of service had been altered to his detriment was statute-barred from the date of the alteration, not when his exact losses were later quantified at arbitration.
Applying the above stated principles to the facts of this case, this Court finds that the appeals made by the first Respondent to the Appeal Committee of the second Respondent did not form part of the facts necessary for the accrual of the cause of action and did not suspend the running of the limitation period. Thus, the cause of action of the first Respondent on the originating summons accrued on the 4th of October, 2018 when the primary election took place with the Appellant as an aspirant. The action in the lower Court was filed on the 31st of October, 2018, outside the fourteen day period prescribed by Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended by the Fourth Alteration No 21 Act of 2017). The action was caught by the limitation provision and it is statute barred and thus liable to be dismissed Lamina Vs Ikeja Local Government (1993) 8 NWLR (Pt 314) 758, Eboigbe Vs NNPC (1994) 5 NWLR (Pt 347) 649, Etim Vs Inspector General of Police (2001) 11 NWLR (Pt 724) 266, Nigeria Ports Authority Plc Vs Lotus Plastics Ltd (2005) 19 NWLR (Pt 959) 158, Yakubu Vs NITEL (2006) 9 NWLR (Pt 985) 367. The first issue for determination is resolved in favour of the Appellant.
This resolution of the first issue for determination on statute bar should ordinarily conclude deliberations of this Court on this appeal. However, in view of the fact that this Court is not the final Court in the judicial hierarchy, it is wise that it goes further to look at the other issues raised by the parties, in case it turns on a further challenge that its finding on limitation of action is wrong Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119 and University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1.
This is in accord with the advice given by the Supreme Court in National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt 1307) 170 that this Court, being the penultimate Court in our judicial system, when confronted with the issue of jurisdiction should decide the issue one way or the other and then proceed to determine the main appeal thereby affording the Supreme Court the benefit of its opinion. This Court will thus proceed with the resolution of the other issues for determination.
Counsel to the Appellant raised and argued the locus standi of the first Respondent to institute and maintain the action in the lower Court in Issues Two and Three. The Court will merge all the arguments on locus standi together and treat them under one issue for determination and this will be Issue Two.
Issue Two
Whether the lower Court accorded the proper approach and treatment to the question of locus standi of the first Respondent to commence the action in the lower Court raised and canvassed by the Appellant.
The arguments of Counsel to the Appellant on this issue were confused, confusing and contradictory. This Court will for purposes of putting some clarity on the presentations compartmentalize the arguments into three segments.
Firstly, Counsel stated that the lower Court was in error to have sought to resolve the question of locus standi on the basis of the conflicting affidavit evidence of the parties on the point without calling oral evidence or converting the originating summons of the first Respondent into a writ of summons and directing the parties to call evidence in proof thereof. Counsel referred to the respective cases presented by the Appellant and the first Respondent on the affidavits of the parties and the exhibits attached and contended that the exhibits relied upon by the Appellant, being certified true copies of public documents obtained from the seventh Respondent, were more authentic than the exhibits relied upon by the first Respondent which were private documents and ought to have been accorded higher credibility by the lower Court in the consideration of the locus standi of the first Respondent. Counsel stated that were the lower Court minded in discountenancing the exhibits of the Appellant, then it meant that the question of the genuineness of the exhibits was put in issue and that when this is combined with the evidence adduced by the parties thereon, it was clear to a reasonable man that the facts and circumstances of the case were hostile and keenly contested and that the consideration of the suit on affidavit evidence was not desirable. Counsel stated that it is trite law that a civil action can only be commenced by originating summons where there are no disputes on the facts of the case between the parties or the matter is on the construction of an enactment, agreement or instrument relied on by the plaintiff as the basis of his claim. Counsel referred to several case law authorities on the point including the cases ofConoil PLC Vs ITF Gov. Council (2015) 9 NWLR (Pt 1464) 399, Famfa Oil Ltd Vs A.G. Federation (2003) 18 NWLR (Pt 852) 453 and Ossai Vs Wakwah (2006) 4 NWLR (Pt 969) 206.
The second contention of Counsel on the issue of locus standi was that, looking through the judgment, the lower Court failed to consider the case of the Appellant on the locus standi, that the first Respondent had ceased to be a member of the second Respondent and had decamped to the Social Democratic Party and was in fact the flag bearer of that party for the 2019 General Elections in the House of Representatives for the Akko Federal Constituency of Gombe State. Counsel stated that this was erroneous of the lower Court because it was settled law that a Court of law has a duty to determine every issue raised before it and that the failure of the lower Court to consider the case of the Appellant on locus standi of the first Respondent, which was an issue of paramount importance, amounted to a violation of the Appellants right to fair hearing as guaranteed by the provisions of the 1999 Constitution (as amended) and he referred to several case law authorities including Ajuwon Vs Akanni (1993) 5 NWLR (Pt 316) 182 and Abiodun Vs Chief Judge, Kwara State (2008) All FWLR (Pt 448) 340. Counsel also referred to the cases of Victino F. O. Ltd Vs Ojo (2010) All FWLR (Pt 542) 1 and Achuzia Vs Ogbomah (2016) 11 NWLR (Pt 1522) 59 in asserting the importance of the concept of fair hearing and stated that once this Court comes to the conclusion that the lower Court breached the fair hearing of the Appellant, that renders the judgment of the lower Court null and void ab initio and the entire judgment must be set aside and he referred to the cases of Bamgboye Vs Unilorin (1999) 10 NWLR (Pt 622) 290 and Ojengbede Vs Esan (2001) 18 NWLR (Pt 746) 77, amongst many others.
The third contention of Counsel was on the merits of the case of the Appellant on the locus standi of the first Respondent and he stated that it was obvious from depositions of the Appellant in the counter affidavit with the copious exhibits attached as well as from the contents of the notice of preliminary objection that as at the time the first Respondent instituted the action in the lower Court, he was a registered member of the Social Democratic Party and the flag bearer of that party for the 2019 General Elections in the House of Representatives for the Akko Federal Constituency of Gombe State. Counsel stated that it was also not in contention that the first Respondent was not the first runner up at the primary election of 4th of October, 2018 which was won by the Appellant, but the second runner up and that the irresistible and unassailable conclusion from the above is that the first Respondent was a busy body and meddlesome interloper and had no locus standi to institute the action in the lower Court and he referred to the cases of Re-Ijebu (1992) 9 NWLR (Pt 226) 414 and Albion Construction Ltd Vs RAO Investment & Properties Ltd (1992) 1 NWLR (Pt 219) 538. Counsel stated that where a plaintiff is shown to lack the locus standi to institute an action, the vice is fatal to the competence of the action and the Court will automatically lose the jurisdiction to entertain the matter and the matter is liable to be struck out and he referred to the cases of Adesokan Vs Adetunji (1994) 6 SCNJ 123 and Nyesom Vs Peterside (2016) 7 NWLR (Pt 1512) 474, amongst others.
In his response to the first and third contentions of Counsel to the Appellant, Counsel to the first Respondent referred to the respective cases made out by the parties on the affidavits on the question of the first Respondent being a member of the Social Democratic Party and the flag bearer of that party for the 2019 General Elections in the House of Representatives for the Akko Federal Constituency of Gombe State and he traversed through the exhibits relied upon and stated that it was evident that the case made out by the first Respondent was better than that of the Appellant. Counsel stated that the lower Court was in order, in the circumstances, in resolving the question on the strength of the affidavit evidence of the parties and what the Counsel to the Appellant desired the lower Court to do was to adopt a wrong procedure of calling oral evidence to explain the self-explanatory contents of documents and that the law is that oral evidence cannot be used to contradict the contents of a written document and he referred to the cases of Ugwuegede Vs Asadu (2018) 10 NWLR (Pt 1628) 46, Etim Vs Obot (2010) 12 NWLR (Pt 1207) 157 and Obiazikwor Vs Obiazikwor (2008) 8 NWLR (Pt 1090) 551.
On the second contention, Counsel stated that the issue of the locus standi of the first Respondent was raised on the notice preliminary objection filed by the Appellant in part answer to the originating summons of the first Respondent and that the parties joined issues on the preliminary objection and canvassed copious arguments thereon and that the lower Court ruled on the preliminary objection and dismissed same in the ruling/judgment delivered on the 7th of February, 2019 and found that the first Respondent possessed locus standi. Counsel stated that finding of the lower Court that the first Respondent possessed the requisite locus standi to institute and maintain the action was not appealed against, rather the complaint of the Appellant in the notice of appeal was failure of the lower Court to determine the issue of the first Respondents membership of Social Democratic Party, and that it is settled law that any finding not appealed against is valid and subsisting and will be deemed correct and binding on all the parties and will not be disturbed by an appellate Court and he referred to the cases of Akere Vs Gov., Oyo State (2012) 12 NWLR (Pt 1314) 240, Gundiri Vs Nyako (2014) 2 NWLR (Pt 1391) 211 and Braithwaite Vs Dalhatu (2016) 13 NWLR (Pt 1528) 32.
Counsel stated further that it was incorrect that the lower Court did not consider the case of the Appellant on locus standi by reason of the alleged membership of Social Democratic Party by the first Respondent, and that it was part of the case made out on the notice of preliminary objection of the Appellant which the lower Court considered and dismissed. Counsel stated that the contention of the Appellant was, at best, a challenge to the mode and style adopted by the lower Court in writing the ruling dismissing the notice of preliminary objection; that the lower Court did not make specific findings on each head of the preliminary objection. Counsel stated that each Court reserves the right to its own style of writing judgment and that what is essential is that it pronounces on all issues and that there is no laid down standard for writing judgment so long as the judgment contains what a proper judgment ought to contain and the trial Judge had discharged the responsibility which will enable what he produced to be properly called a judgment and he referred to the cases of Ovunwo Vs Woko (2011) 6-7 SC (Pt 1) 1 and Duru Vs Nwosu (1989) 7 SC (Pt 1) 1. Counsel stated that the ruling of the lower Court on the notice of preliminary objection met all the necessary requirements of a good judgment and that the fact that the lower Court did not reproduce the lengthy arguments of Counsel in the ruling did not derogate from the quality of the ruling and he referred to the unreported decision of this Court in Appeal No CA/A/279/2015 Adabah Vs Saleh delivered on the 8th of February, 2016. Counsel stated that there was no issue of breach of the right of fair hearing of the Appellant as all the issues canvassed by him on the notice of preliminary objection were considered by the lower Court in dismissing the preliminary objection. Counsel urged the Court to resolve the issue in favour of the first Respondent
In his contribution, Counsel to the third Respondent canvassed arguments and cited authorities in support of the position of the first Respondent and stated that it is incorrect that once there are dispute on the facts it means that originating summons procedure is inappropriate and that what will make the procedure inappropriate is whether the dispute on the facts were on the live issues submitted for adjudication by the parties, and not where they are on peripheral matters and he referred to the cases of Owuama Vs Obasi (2010) LPELR 4371(CA) and Muazu Vs Bawa (2018) LPELR 54373(CA). Counsel stated that looking at the live issues submitted for adjudication in the matter, the alleged dispute on facts canvassed by Counsel to the Appellant were not material to them and they only went to the issue of locus standi and which the lower Court could, and did resolve, on the strength of the affidavit evidence before it. Counsel stated further that the lower Court stated in the opening part of the ruling on the preliminary objection that it had considered all the processes filed by the parties on and in response thereto, even though not specifically listed in the ruling, and that this shows that the lower Court considered all the issues raised by the parties on the preliminary objection before coming to its decision dismissing same and that the contention of the Appellant on the doctrine of fair hearing was misconceived. Counsel stated that the ruling of the lower Court met all the requirements of a good judgment and that it was irrelevant that the lower Court did not adopt the methodology preferred by Counsel to the Appellant in its deliberations in the ruling and he referred to the case ofIhemeremadu Vs Okpechi (2018) LPELR 44767(CA). Counsel urged the Court to resolve the issue in favour of the first Respondent.
The entire complaints of the Appellant under this issue for determination revolve around the allegation made by the Appellant, both in his counter affidavit to the originating summons and on his notice of preliminary objection, that the first Respondent, as at time of filing the action, had become a member of the Social Democratic Party and was the flag bearer of that party for the 2019 General Elections in the House of Representatives for the Akko Federal Constituency of Gombe State, and thus lacked the requisite locus standi to institute and maintain the action in the lower Court. This question of locus standi did not arise from the facts deposed in support of the originating summons by the first Respondent or from the questions posed and the reliefs sought on the originating summons. The first Respondent filed a further affidavit on the originating summons and a counter affidavit to the notice of preliminary objection of the Appellant wherein he deposed copious facts denying the allegation of the Appellant.
This is a civil suit and one of the most firmly established principles in a civil hearing is that the burden of proving a particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by law that the proof of that fact shall lie on any particular person University of Ilorin Vs Obayan (2018) LPELR 43910(SC), Union Bank of Nigeria Plc Vs Ravih Abdul & Co Ltd (2018) LPELR 46333(SC). The onus of proving the allegation that the first Respondent had become a member of the Social Democratic Party and the flag bearer of that party for the 2019 General Elections in the House of Representatives for the Akko Federal Constituency of Gombe State was on the Appellant. Thus, the whole essence of the complaints of the Appellant and of the copious and lengthy arguments of his Counsel on this issue for determination is that the lower Court was wrong in not converting the originating summons of the first Respondent to a writ of summons and directing the parties to file pleadings and call witnesses in order to enable him discharge the burden of proof on him on his allegation of the first Respondent being a member of the Social Democratic Party and the flag bearer of that party for the 2019 General Elections in the House of Representatives for the Akko Federal Constituency of Gombe State.
This is not the purpose which the principle laid down by the Courts on conversion of originating summons to writ of summons and calling on the parties to lead oral evidence was meant to serve. The Courts recognize that facts make cases and that it is disputes in the facts that lead to litigation Pam Vs Mohammed (2008) 16 NWLR (Pt 1112) 1. Thus, it is not the law that matters commenced by originating summons are devoid of dispute on the facts and the use of the procedure is proper as long as the dispute on the facts do not affect the live issues in the matter Sani Vs Kogi State House of Assembly (2019) LPELR 46404(SC).
In other words, it is only where there are material disputes on the facts as they affect the live issues submitted for adjudication on the originating summons that a Court is enjoined to consider converting the originating summons into a writ of summons and calling on the parties to file pleadings and lead oral evidence; not where the dispute is on a point of defence raised by the defendant in his counter affidavit Zakirai Vs Mohammad (2015) LPELR 40387(CA), Zakirai Vs Mohammad (2017) LPELR 42349(SC). The point was made by the Supreme Court in Gbileve Vs Addingi (2014) 16 NWLR (Pt 1433) 394 at 417 C-G thus:
Where proceedings in a Court are by affidavit evidence, it is important that conflicts in such affidavits are not glossed over. The Court is enjoined to look at the nature of the conflict. When facts are deposed in an affidavit, the purpose of a counter affidavit is to contradict those facts and not to merely set up a distinct fact as defence. Where the conflict arising from the affidavit and counter affidavit depositions are not on material issues, the Court calling for oral evidence becomes unnecessary. In effect, where the conflicts are not material to the case or where the facts are inadmissible in evidence, the Court should not be saddled with the responsibility of calling oral evidence to resolve the conflict Furthermore, where the conflicting evidence can be resolved from documentary evidence the need to call oral evidence becomes unnecessary
Where the dispute is on a point of defence raised by a defendant in his counter affidavit, and which the defendant has the onus of proving, the responsibility is on the defendant or his Counsel to apply to the Court to lead oral evidence on the point. It is not for the trial Court to convert the originating summons to writ of summons and call for oral evidence for that reason. As stated above, the alleged dispute on facts in the affidavit is in respect of a point of defence raised by the Appellant, and which he had the onus to prove, and the records show that at no time in the course of proceedings did Counsel to the Appellant apply to the lower Court for leave to lead oral evidence in proof of the allegation. The umbrage taken by Counsel to the Appellant in this appeal against the lower Court for failing to convert the originating summons of the first Respondent to a writ of summons was unfounded and baseless.
Now, it is settled law that in civil suits cases are won on a preponderance of evidence and thus a party who has the burden of proving the existence of a fact must lead credible and cogent evidence which preponderates over that led by his adversary in prove of the facts. Where the evidence led by that party is only as good as that led by his adversary on the existence of fact so that there is an equilibrium, it is the party on whom rests the burden of proof that fails. This is because the evidence does not preponderate in such partys favour Ezukwu Vs Ukachukwu (2000) 1 NWLR (Pt 642) 657, Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt 1127) 194. In other words, if two possibilities are equally compatible with an evidence, neither one can be said to have been proved. This is because evidence which leads as reasonably to one hypothesis as to another tends to prove neither and such evidence will not support a judgment in favour of the party having the burden of proof. The evidence of facts and circumstances on which a claimant relies and the inferences logically deducible therefrom must so preponderate in favour of the basic proposition it is seeking to establish as to exclude any equally well supported belief in any inconsistent proposition Ogunro Vs Arowolo (1998) 6 NWLR (Pt 552) 78. This was explained by Omosun, JCA in Igwe Vs Alozieuwa (1990) 3 NWLR (Pt 141) 735 at page 751 thus:
It is not enough for a party to a case who has the onus of establishing a particular fact to say that his own evidence is just as good as that of his opponent. What the law says he must do to discharge the onus of proof on him is to prove by evidence which convinces the Court or tribunal of the probability of his case rather than that of the opponent on the point in issue
In the instant case, a read through the facts and the documentary evidence adduced by the Appellant in proof of the allegation that the first Respondent was a member of the Social Democratic Party and the flag bearer of that party for the 2019 General Elections in the House of Representatives for the Akko Federal Constituency of Gombe State shows that they were effectively matched by the facts and documentary evidence adduced by the first Respondent in denial of the fact. The Appellant did not apply to lead, and did not lead, oral evidence to tilt the scale in his favour. The logical conclusion is that the Appellant did not adduce sufficient facts in proof of his allegation.
Reading through the ruling/judgment, it is obvious, despite the valiant attempt of Counsel to the first and third Respondents to obscure the fact, that the lower Court did not consider or make a specific finding on the allegation of the Appellant that the first Respondent lacked locus standi to institute the action because he had decamped to the Social Democratic Party. The above finding that the Appellant failed to lead sufficient evidence on the allegation, however, completely takes the sting out of the complaint of the Appellant on lack of fair hearing. It is correct that it is the duty of the Court to consider all issues joined by the parties and raised before it for determination and that failure to do so may amount to a miscarriage of justice and be tantamount to a breach or denial of fair hearing cherishingly enshrined in the Constitution and it will certainly have that result if the issues not pronounced upon are crucial Okonji Vs Njokanma (1991) 7 NWLR (Pt 202) 131, Brawal Shipping Nig Ltd Vs F. I. Onwadike Co Ltd (2000) 11 NWLR (Pt 678) 387, Egharevba Vs Osagie (2009) 18 NWLR (Pt 1173) 299, Tanko Vs United Bank for Africa (2010) 17 NWLR (Pt 1221) 80, Dingyadi Vs Independent National Electoral Commission (No. 1) (2010) 18 NWLR (Pt 1224) 1.
However, where the issue is not crucial and it is merely theoretical and of no practical utilitarian value such that its determination makes no practical or tangible addition to the outcome of the matter or to the decision of the lower Court, pronouncing on it is an exercise in futility and failure to do so cannot have any effect on the decision of the Court Agbakoba Vs Independent National Electoral Commission (2008) 18 NWLR (Pt 1119) 489, Independent National Electoral Commission Vs Atuma (2013) LPELR-20589(SC). This postulation is premised on the fact that Courts of law deal with live issues which will have bearing in one way or the other on the outcome of a case Mamman Vs Salaudeen (2005) 18 NWLR (Pt 958) 478, State Vs Azeez (2008) 14 NWLR (Pt 1108) 348, Abdullahi Vs Military Administrator, Kaduna State (2009) 15 NWLR (Pt 1165) 417.
Hence, a failure on the part of a Court to consider all the issues that have been joined by the parties and raised before it for determination may or may not result in the setting aside of the decision reached depending on whether or not the issue is crucial and that its non-consideration occasioned a miscarriage of justice thereby Irolo Vs Uka (2002) 14 NWLR (Pt 786) 195, Union Bank of Nigeria Ltd Vs Nwaokolo (1995) 6 NWLR (Pt 400) 127, Nkwocha Vs MTN Nigeria Communications Ltd (2008) LPELR 8494(CA). The finding that the Appellant did not lead sufficient evidence in proof of the allegation that the lower Court was said not have considered, means that the said failure to consider the issue did not occasion a miscarriage of justice, and was thus not fatal.
The entire complaints of the Appellant under this issue for determination are totally misconceived and the second issue for determination is resolved against the Appellant.
Issue Three
Whether the lower Court was right in assuming jurisdiction to hear and determine the action of the first Respondent?
In arguing the issue for determination, Counsel to the Appellant stated that the subject matter of the first Respondents claim before the lower Court was not justiciable as it was purely an intra party issue. Counsel referred to the questions posed for determination on the originating summons and all the reliefs sought and stated that they all centered, on the one hand, on the issue of the requirement in Article 3(l) of the second Respondent Guidelines for the Nomination of Candidates for the 2019 General Elections, to wit, that a candidate vying for elective position must have been a member of the party for at least one year and, on the other hand, the legitimacy of the exercise of the discretion vested in the National Executive Committee and the National Working Committee by the Constitution of the second Respondent to waive the requirement of Article 3(l) in decisively waiving the said requirement in favour of the Appellant. Counsel stated that the action is equally centered on the rightfulness or otherwise of the nomination and sponsorship by the second Respondent of the Appellant as its candidate for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State.
Counsel stated that it is now well settled that the issue of nomination and sponsorship of a particular candidate to an elective office is absolutely a political issue within the prerogative powers of the party and that no Court or tribunal had jurisdiction to hear and determine such a matter and he referred to the cases ofSalim Vs CPC (2013) 6 NWLR (Pt 1351) 501, CPC Vs Ombugadu (2013) 6 NWLR (Pt 1385) 66, Peoples Democratic Party Vs Sylva (2012) 13 NWLR (Pt 1316) 85 and APGA Vs Anyanwu (2014) All FWLR (Pt 735) 264, amongst others. Counsel stated further that it was settled law that a political party, like the second Respondent, is a voluntary association of individuals and thus the doctrine of ultra vires does not apply in respect of the application of its Constitution, bye-law or Guidelines and he again referred to the case of Peoples Democratic Party Vs Sylva supra. Counsel stated that the second Respondent having held a primary election to nominate the Appellant as its candidate for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State, there ended the matter and the lower Court cannot inquire into same and invoke the doctrine of ultra vires to oust the Appellant as such nominated candidate. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.
In his response on the issue for determination, Counsel to the first Respondent traversed through the case of the first Respondent on the originating summons and stated that the grouse was that the second Respondent did not comply with the provisions of Article 3(l) of its Guidelines for the Nomination of Candidates for the 2019 General Elections, to wit, that a candidate vying for elective position must have been a member of the party for at least one year, in nominating the Appellant as its candidate for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State. Counsel conceded that no Court of law will have anything to do with how a political party conducts its affairs and that the choice of candidates by a political party is within the internal affairs of the party, but stated that where the political party in conducting its affairs acts in any manner which is clearly in breach of its own Constitution, rules, regulation or guidelines, an aspirant who participated in the said primary can challenge same in a Court of law and compel the political party to act in accordance with its guidelines and seek appropriate orders. Counsel referred to and quoted from several cases including Dahiru Vs APC (2017) 4 NWLR (Pt 1555) 218, Ufomba Vs INEC (2017) 13 NWLR (Pt 1582) 175 and Uzodinma Vs Izunaso (2011) 17 NWLR (Pt 1275) 30. Counsel stated that it was breach of Article 3(l) of its Guidelines for the Nomination of Candidates for the 2019 General Elections by the second Respondent in nominating the Appellant as its candidate that vested the lower Court with jurisdiction to hear and determine this action. Counsel urged the Court to resolve the issue for determination in favour of the first Respondent.
The arguments of Counsel to the third Respondent was in similar tenure as those canvassed by Counsel to the first Respondent and he cited the cases of Wushishi Vs Imam (2017) LPELR 41906(SC) and Ukachukwu Vs PDP (2014) 17 NWLR (Pt 1435) 134 as additional authorities.
Now, jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority Enyadike Vs Omehia (2010) 11 NWLR (Pt 1204) 92 and Abacha Vs Federal Republic of Nigeria (2014) 6 NWLR (Pt 1402) 43. It is the blood, life wire, bedrock and foundation of adjudication and without it the labourers therein, that is both the litigants and counsel on the one hand and the Judge on the other hand, labour in vain Attorney General of Lagos State Vs Dosunmu (1989) 3 NWLR (Pt 111) 552.
It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A Court cannot do more than this Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512.
The case as made out on the originating summons of the first Respondent centers around the nomination of the Appellant by the second Respondent as its candidate for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State. The case of the first Respondent was that the second Respondent erred in allowing the Appellant participate in the primary election held on the 4th of October, 2019 to select its candidate for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State as the Appellant was not qualified to contest by virtue of the provisions of Article 3(l) of the Guidelines for the Nomination of Candidates for the 2019 General Elections as he had not been a member of the party for one year prior to the primary election. This is an intra party matter.
An intra-party dispute has been defined as a dispute between members of a political party inter-se or between a member or members, on the one hand, against the political party, on the other hand Peoples Democratic Party Vs Kwara State Independent Electoral Commission (2006) 3 NWLR (Pt 968) 565, Kalgo Vs Faruk (2008) LPELR 4495(CA), Labour Party Vs Oyatoro (2016) LPELR 40135(CA), Dahiru Vs All Progressives Congress (2017) 4 NWLR (Pt 1555) 218. The law, as a general rule, is that an intra – party matter is entirely within the party’s internal affairs, exclusively and completely outside the province or competence of Courts or Tribunals Bakam Vs Abubakar (1991) 6 NWLR (Pt 199) 564, Abdulkadir Vs Mamman (2003) 14 NWLR (Pt 839) 1, Jang Vs INEC (2004) 12 NWLR (Pt 886) 46, Amaechi Vs INEC (2007) 9 NWLR (Pt 1040) 504, Ugwu Vs Ararume (2007) 12 NWLR (Pt 1048) 367 at 499 500, Pam Vs All Nigeria Peoples Party (2008) 4 NWLR (Pt 1077) 224, Ehinlanwo Vs Oke (2008) 16 NWLR (Pt 1113) 357, Nobis-Elendu Vs INEC (2015) 16 NWLR (Pt 1485) 197, Shinkafi Vs Yari (2016) 7 NWLR (Pt 1511) 340. An exception provided by statute to this general rule is contained in Section 87 (9) of the Electoral Act, 2010 (as amended) and which reads:
Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.
This provision has been interpreted by the Courts to invest both the Federal High Court and the State High Court with jurisdiction to entertain complaints regarding the selection or nomination of a candidate of a political party for election Salim Vs Congress for Progressive Change (2013) 6 NWLR (Pt 1351) 501, Gassol Vs Tutare (2013) 14 NWLR (Pt 1374) 225, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. It is however, a very narrow and limited jurisdiction which has not derogated from the non-justiciability of a partys wide discretionary powers of choosing one of its members for the elective office Adebayo Vs Peoples Democratic Party (2013) 17 NWLR (Pt 1382) 1, Wushishi Vs Imam (2017) 18 NWLR (Pt 1597) 175, Peoples Democratic Party Vs Ezeonwuka (2018) 3 NWLR (Pt 1606) 187, Maihaja Vs Gaidam (2018) 4 NWLR (Pt 1610) 454 and Angadi Vs Peoples Democratic Party (2018) 15 NWLR (Pt 1641) 1.
The Courts are unanimous that to come within the limited jurisdiction conferred by Section 87(9) of the Electoral Act, the subject matter of the dispute must relate to the selection or nomination of a candidate for election by a political party and the complaint must be in respect of non-compliance with the provisions of Electoral Act and the Guidelines of a political party; the Federal High Court and the State High Court have no jurisdiction to entertain any other subject matter or complaint under the provisions of the section Agi Vs Peoples Democratic Party (2017) 17 NWLR (Pt 1595) 386, Wushishi Vs Imam supra, Peoples Democratic Party Vs Ezeonwuka supra, Angadi Vs Peoples Democratic Party supra, Nduul Vs Wayo (2018) 16 NWLR (Pt 1646) 548.
Thus, the Courts have stated that the conditions precedent for bringing an action under Section 87 (9) of the Electoral Act are (i) there must first have been a primary election for the selection or nomination of a candidate by a political party; (ii) the exercise for the primary must have been in respect of an election; (iii) the complainant must be an aspirant who took part or ought to have taken part in his political partys primaries and it must be shown that the political party did not comply with a provision of Electoral Act and/or its Guidelines for the nomination or selection done Ikedife Vs APGA (2014) LPELR 22921(CA), Ukachukwu Vs Peoples Democratic Party (2014) 17 NWLR (Pt 1435) 134, Maihaja Vs Gaidam supra, All Progressives Congress Vs Karfi (2018) 6 NWLR (Pt 1616) 479 and Ugwuegede Vs Asadu (2018) 10 NWLR (Pt 1628) 460.
It is not in dispute in this matter that there was a primary election held for the nomination of a candidate by the second Respondent for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State. It is not in dispute that the first Respondent was an aspirant who took part in the primary election. The question that arises is what was the subject matter of the dispute submitted for adjudication by the first Respondent to the lower Court?
It is correct that Article 3(l) of the Guidelines issued by the second Respondent for the Nomination of Candidates for the 2019 General Elections states that a candidate vying for elective position must have been a member of the party for at least one year before the date of the primary election held to nominate candidates for that office. The parties were agreed in this matter that the Appellant joined the second Respondent on the 7th of February, 2018 from the Peoples Democratic Party and had not been a member of the party for up to one year at the time second Respondent held the primary election for selection of its candidate for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State. It is not in contest that the National Executive Committee and the National Working Committee of the second Respondent was given the discretion by Sections 13.3(xv) and 31(2) of the Constitution of the second Respondent to waive the requirement of membership of the party to contest for elective office stated in Section 31(1) of the Constitution, if in their opinion such a waiver in the best interest of the party.
It was not in contest that Appellant was cleared by the screening committee of the second Respondent to contest and that he applied for a waiver of the requirement of Article 3(l) of the Guidelines and he was granted the waiver as conveyed in a letter dated the 24th of September, 2018 and signed by the National Chairman of the second Respondent. In other words, as at 4th of October, 2018 when the primary election of the second Respondent for the 2019 General Elections into the House of Representatives for the Akko Federal Constituency of Gombe State was held, the provision of Article 3(l) of the Guidelines was no longer applicable to the Appellant as it had been waived in his favour by the second Respondent. The participation of the Appellant in the primary election was thus not in breach of the Guidelines. It is not in contest that the primary elections were free and fair and that the Appellant won by a wide majority.
Now, Article 16(b) of the Guidelines states that all appeals arising from the conduct of primary election for the selection of candidates for the House of Representatives shall lie to five-member Legislative Election Appeal Committee. Article 16(d) of the Guidelines states that all further appeal from the conduct of primary election for the selection of candidates for the House of Representatives shall lie to the National Working Committee, acting on behalf of the National Executive Committee, and that the decision of the National Working Committee thereon shall be final. In other words, the decision of the National Working Committee on all complaints arising from conduct of primary elections shall be final. It was not in dispute that the totality of the complaint of the first Respondent against the conduct of the primary election of the 4th of October, 2018 was on the eligibility of the Appellant to contest at the primary election, and nothing more. It was not in contest that the first Respondent took the complaint before the Appeal Committee and further to the National Working Committee of the second Respondent and that the complaint was rejected. This was the dispute that the first Respondent thereafter took before the lower Court for adjudication. Thus, devoid of all the coatings and embellishments, the subject matter of the dispute submitted by the first Respondent for adjudication by the lower Court on the originating summons was the eligibility or ineligibility of the Appellant to contest the primary election.
It is obvious from Article 16 of the Guidelines issued by the second Respondent for the Nomination of Candidates for the 2019 General Elections that once the National Working Committee decides that or regards a member of the party as eligible to contest in the primaries, there ends the matter. Article 16 of the Guidelines promotes the supremacy of the second Respondent in the determination of the eligibility of any aspirant including the Appellant for election. No member can therefore complain against the decision of the National Working Committee. It is trite law that once a political party finds a person worthy and clears him to contest as an aspirant in its primary election to select a candidate, no member of the party can complain and no Court of law possesses jurisdiction to inquire into the matter. It is a matter strictly within the domestic and internal affairs of the political party and it is not justiciable Uzodinma Vs Izunazo (No 2) (2011) 12 NWLR (Pt 1275) 30, Tukur Vs Uba (2012) LPELR 9337(SC), All Progressive Grand Alliance Vs Anyanwu (2014) 7 NWLR (Pt 1407) 541, Agi Vs Peoples Democratic Party (2017) 17 NWLR (Pt 1595) 386, Ukaegbu Vs Maduako (2018) LPELR 44122(CA), Maduako Vs Oba (2018) LPELR 44475(CA), Pali Vs Abdu (2019) LPELR 46342(SC).
The Court has no business getting involved in the internal process of a political party in the selection of its candidate for elective office, whether it was rightly or wrongly done Angadi Vs Peoples Democratic Party supra. In Effiom Vs Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt 1213) 106, the Supreme Court stated that the process and procedure for the nomination of a candidate to be sponsored by a political party is a domestic affair of the party based on the sole discretion of the party and that the Court has not wavered from its position that it has no jurisdiction to question the exercise of such power by a political party. No member of a political party has the locus standi to question the partys prerogative right on the issue of its choice of candidates for elective office, not even in the face of breaching of its rules and regulations Peoples Democratic Party Vs Sylva (2012) 13 NWLR (Pt 1316) 85 and All Progressive Grand Alliance Vs Anyanwu supra. A political party has the power to conduct its primary election and to determine those eligible to participate in the primary election and Court should not dabble into such affairs which are the exclusive preserve of the political party Adegbuyi Vs All Progressive Congress (2015) 2 NWLR (Pt 1442) 1. The lower Court lacked the requisite jurisdiction to inquire into the dispute submitted to it for adjudication by the first Respondent on the originating summons. The third issue for determination is resolved in favour of the Appellant.
Issue Four
Whether or not the first Respondent proved his case before the lower Court to be entitled to part judgment entered in his favour?
A read through the arguments proffered in the brief of arguments of the Counsel to the Appellants on this issue for determination and the response arguments thereto in the respective briefs of arguments of the Counsel to the first Respondent and Counsel to the third Respondent shows that the issue turns on whether or not the National Executive Committee and the National Working Committee of the second Respondent properly exercised their power of waiver under Sections 13.3(xv) and 31(2) of the Constitution of the second Respondent in waiving the requirement of Article 3(l) of the Guidelines in favour of the Appellant. This is clearly a matter of the internal workings of the second Respondent, a political party. A political party is like a club, a voluntary association, and the law is settled beyond per adventure that a Court of law do not run the internal affairs of a political party. A political party is supreme over its own affairs Onuoha Vs Okafor (1983) 2 SCNLR 244, Dalhatu Vs Turaki (2003) 15 NWLR (Pt 843) 310, Uzodinma Vs Izunazo (No 2) supra, Lado Vs Congress for Progressive Change (2012) 18 NWLR (Pt 1279) 689, Peoples Democratic Party Vs Sylva supra, Agi Vs Peoples Democratic Party supra, Pali Vs Abdu supra.
What this translates to is that resolving this issue for determination will effectively involve this Court in determining an academic and a hypothetical question. It is not in the habit of a busy Court of law to engage in the resolution of such questions K. R. K. Holdings (Nig) Ltd Vs First Bank of Nigeria Ltd (2017) 3 NWLR (Pt 1552) 326, Dahiru Vs All Progressives Congress (2017) 4 NWLR (Pt 1555) 218, Attorney General, Federation Vs Attorney General, Lagos State (2017) 8 NWLR (Pt 1566) 20. This Court will thus decline the invitation of the Counsel to the parties to deliberate on the issue. The fourth issue for determination is hereby discountenanced by this Court.
In conclusion on the appeal of the Appellant, this Court finds merit in the appeal and the appeal will be allowed.
Cross Appeal
This takes us to cross appeal of the first Respondent. It must be stated from the onset that the cross appeal must necessarily fail in view of the success of the appeal. This Court is however, still obliged to consider it on the merits and state its views thereon in case of a further appeal to the Supreme Court.
Counsel to the first Respondent, the Cross Appellant, distilled one issue for determination in the cross appeal and it is:
Whether the decision of the learned trial Court below not to rely on the un-denied, unchallenged and uncontroverted paragraph 25 of the affidavit in support of the originating summons in granting reliefs 3, 4, 5, 6 and 7 on the originating summons is not wrong in law in view of the clear established principles of law.
Counsel to the Appellant, as the first Cross Respondent, agreed that there was only one issue for determination in the cross appeal and he formulated the issue thus:
Whether the lower Court was right in refusing the reliefs 3, 4, 5, 6 and 7, on the originating summons, by virtue of insufficient evidence adduced by the first Respondent before the lower Court to establish that he was second runner up at the second Respondents primary election for the member of House of Representatives representing Akko Federal Constituency of Gombe State at the 2019 General Elections.
Counsel to the second Respondent, as second Cross Respondent, also agreed that there was only one issue for determination in the cross appeal, and he adopted the issue for determination formulated by Counsel to the Appellant.
Counsel to the third Respondent, as third Cross Respondent, similarly agreed that there is one issue for determination in the cross appeal and he formulated the issue thus:
Whether the learned trial Judge was not right in holding that declaratory orders must be proved by the parties and not made by agreements, concessions or deductions in refusing reliefs 3, 4, 5, 6 and 7 sought by the first Respondent on the originating summons.
One of the firmly established principles of formulation of issues for determination in an appeal is that an issue for determination must be directed at the ratio decidendi of the decision of the lower Court appealed against and must be decisive in determining the real grievance in the appeal James Vs Independent National Electoral Commission (2015) 12 NWLR (Pt 1474) 538, Peoples Democratic Party Vs Sherrif (2017) 15 NWLR (Pt 1588) 291.
The relevant facts on the cross appeal are that the Appellant, the first Respondent and the third Respondent were aspirants at the primary election of the second Respondent held on the 4th of October, 2018 to select the candidate to represent the second Respondent at the 2019 General Election as member of the House of Representatives representing Akko Federal Constituency of Gombe State. The election was duly held and at the end of which the Appellant won and the third Respondent came second and the first Respondent came third. The first Respondent stated that after the primary election, the third Respondent informed him about the ineligibility of the Appellant to contest and that he was no longer interested in the race and was willing to support him in the fight on the issue. Consequently, the first Respondent commenced the action in the lower Court praying for the disqualification of the Appellant and for declaratory orders making him the candidate of the second Respondent, in the stead of the Appellant, as he was the next person in view of the fact that the third Respondent stated that he was no longer interested.
In his counter affidavit to the originating summons, the third Respondent deposed that he decided to accept the outcome of the primary elections of the second Respondent held on the 4th of October, 2018 and to support the candidacy of the Appellant so that the second Respondent can succeed in its bid to capture the seat from the Peoples Democratic Party in the 2019 General Election. He stated that he was still interested in the position but was willing to await another opportunity in future to represent his community in whatever capacity and that the election was not about him personally but about the generality of the people of Akko Local Government who were yearning for quality representation on the platform of the second Respondent.
The lower Court entered judgment nullifying the candidacy of the Appellant, but declined the declaratory orders sought by the first Respondent seeking to make him the candidate of the second Respondent instead. The portion of the judgment of the lower Court cross appealed against reads thus:
Having so held, I find that the plaintiffs prayer that he be declared the rightful candidate for Akko Federal Constituency of Gombe State is not grantable having admitted that he came 3rd place in the said election, it is then against the natural order or flow of things that the 3rd placed candidate be declared winner in an election he admitted coming 3rd.
His assertions that there is a collaboration between him and the 3rd defendant notwithstanding as the said assertion is not supportable by facts, or evidence as even the Counsel to the 3rd defendants argued in the opposite in his oral adumbrations before the Court. I must also at this juncture state quite unequivocally that the Court of law is not a house where gifts are freely given. Orders and declarations are not made willy-nilly. Any party who seeks a declaration to be made in his favour must categorically plead it and emphatically prove it. Declarations are not made upon concessions, agreements or by deductions.
It is obvious from the above excerpt of the judgment cross appealed against that it is the issue for determination as formulated by Counsel to the third Respondent, as third Cross Respondent, that captures the real grievance in this cross appeal and the Court adopts it as the issue for determination in the cross appeal.
In arguing the cross appeal, Counsel to the first Respondent stated that the deposition of the first Respondent in the affidavit in support of the originating summons that after the primary election, the third Respondent informed him about the ineligibility of the Appellant to contest and that he was no longer interested in the race and was willing to support him in the fight, was not denied, challenged or controverted by the third Respondent. Counsel stated that the position of the law is where evidence given by a party to a proceeding as to the state of things is not denied, challenged or controverted, it is open to the Court to act on such evidence and he referred to the cases of Okoebor Vs Police Council (2003) 12 NWLR (Pt 834) 444 and Zuberu Vs State (2015) 16 NWLR (Pt 1486) 504, amongst others. Counsel stated that the unchallenged deposition of the first Respondent goes beyond collaboration and constituted clear evidence upon which the lower Court was obliged to act and he referred to the case of GE Intl Operations Ltd Vs Q-Oil & Gas Services (2015) 1 NWLR (Pt 1440) 244. Counsel stated that additionally, the third Respondent did not counterclaim before the lower Court for declaration that he be declared the winner of the primary election and this further showed the truth of the case of the first Respondent. Counsel stated that the lower Court was wrong to have refused the reliefs 3, 4, 5, 6 and 7 on originating summons and he prayed the Court to allow the cross appeal.
In his response, Counsel to the Appellant, as the first Cross Respondent, stated that a party seeking declaratory, executory and injunctive reliefs will only succeed on the strength of his case and not on the weakness of the defence and/or even on an admission made by his opponent and he referred to the cases of Ngige Vs INEC (2015) 1 NWLR (Pt 1440) 281 and CPC Vs INEC (2012) 13 NWLR (Pt 1317) 260, amongst others.
Counsel stated that the first Respondent was thus obligated to adduce cogent and adequate evidence in proof of the facts contained in his originating summons, otherwise his claim must fail and that so grave is this duty that the law says that the onus on him does not shift until it is discharged, as the Cross Respondents had no duty to disprove his case and he referred to the cases of Agbaje Vs Fashola (2008) 6 NWLR (Pt 1082) 90 and CBN Vs Amao (2010) 16 NWLR (Pt 1219) 217, amongst several others. Counsel stated that looking at the facts disclosed on the originating summons it is obvious the first Respondent did not disclosed sufficient facts to entitle him to the grant of reliefs 3, 4, 5, 6 and 7 as he admitted that he came third in the primary election, and was not the first runner up. Counsel stated that the first Respondent placed heavy reliance on the deposition, that after the primary election, the third Respondent informed him about the ineligibility of the Appellant to contest and that he was no longer interested in the race and was willing to support him in the fight, and that the lower Court rightly found that the deposition was not sufficient.
Counsel stated that the first Respondent had the responsibility to show that the findings of the lower Court were perverse to warrant the interference of this Court and that the first Respondent failed woefully to do so because contrary to the assertion of Counsel that the deposition of the first Respondent was not challenged, the third Respondent countered the deposition of the first Respondent in his counter affidavit. Counsel stated that the first Respondent did not support his assertion that the third Respondent relinquished his first runner up position with any documentary proof as to tilt the scale in his favour and that there was thus no basis for this Court to interfere with the findings of the lower Court. Counsel urged the Court to dismiss the cross appeal.
The arguments of the Counsel to the second Respondent, as second Cross Respondent, were practically a word for word repetition of the arguments of Counsel to the Appellant, the first Cross Respondent. On his part, Counsel to the third Respondent, as third Cross Respondent, stated that it is trite law that declaratory orders are granted based on the exercise of discretionary powers of a Court and that it is a discretion that must be exercised judicially and judiciously and he referred to the cases of Emueze Vs Governor of Delta State (2014) LPELR 23201(CA) and Soyinka Vs Oni (2011) 13 NWLR (Pt 1264) 294, amongst others. Counsel stated that a primary election is a product of the choice of the public and that as such the mandate given to the winner of such an election is a public right, and not a private right, and he cannot unilaterally relinquish, surrender or abandon it, without due compliance with the law and that with the disqualification of the Appellant who scored the highest vote at the primary election, the mandate automatically fell on the third Respondent who was the first runner-up by virtue of the provisions of Section 87(4)(c) of the Electoral Act, 2010, and that the disinterest of the third Respondent in challenging the victory of the Appellant cannot mean that he waived the right of devolution of the mandate on him. Counsel referred to the cases of Ibrahim Vs Lawal (2015) LPELR 24736(SC) and Menakaya Vs Menakaya (2001) 16 NWLR (Pt 738) 203 on inability to waive a mandatory statutory provision.
Counsel reiterated that a party seeking a declaratory order must succeed on the strength of his case and not on the weakness of the case of the opponent and he also referred to and reproduced the provisions of Section 87(4) of the Electoral Act, 2010 and stated that for the first Respondent to succeed on the reliefs 3, 4, 5, 6 and 7 on the originating summons, he had the burden of proving that he scored next highest votes at the primary election. Counsel stated that the first Respondent failed to prove this fact and rather relied on an alleged concession on the part of the third Respondent and which concession was denied by the third Respondent in the counter affidavit to the originating summons. Counsel stated that the first Respondent has not given the Court any reason to tamper with the decision of the lower Court and he urged the Court to dismiss the cross appeal.
This Court must say that this cross-appeal is really much ado about nothing. The third, fourth, fifth, sixth and seventh prayers on the originating summons, the refusal of which by the lower Court precipitated the cross appeal, are three declaratory orders, one mandatory order and one injunctive order. It is very rudimentary that a party seeking such orders must succeed on the strength of his own case, and not rely on the weakness of the case of his adversary, and where he fails to discharge the onus, judgment must be for the other party. Declaratory reliefs cannot be granted even on admissions by the other party. These firmly established principles of law were very recently restated by this Court in Dike Vs Attorney General, Anambra State (2019) LPELR 46497(CA) thus:
Further, most of the reliefs sought are declaratory in nature. Even though the argument is that the 1st and 2nd Respondents did not file counter affidavits and must be deemed to have admitted the averments in the Applicants affidavits, it is trite that declaratory reliefs cannot be granted merely on admissions or default of defence. See KWAJAFFA & ORS V. B.O.N. LTD (2004) LPELR-1727 (SC); ASABORO & ORS V. ERHUE & ORS (2018) LPELR-44841(CA). Evidence must be led to establish the claim. See HON. JAMES ABIODUN FALEKE V I.N.E.C. & ANOR (2016) 18 NWLR (PT. 1543) 61 @149. In the case of OKOYE & ORS V NWANKWO (2014) LPELR-23172 (SC) the SC observed Per NGWUTA, J.S.C as follows:
“This Court has held, in plethora of decided cases, that a declaration of title or right cannot legally be based on admission in the statement of defence. See Umesie & Ors v. Onuaguluchi & Ors (1995) LPELR-3368 SC. In Bello v. Eweka (1981) 1 SC 101 at 102 this Court held, inter alia: “… the law is that a declaration of title or right cannot legally be based on admission in the pleading of a defendant.” In the same case, this Court, while appreciating the general principle of law that what is admitted needs no proof, stated that the general principle does not apply in a claim for declaration of title or right. The Court held, inter alia: “It is true as was contended before us by the appellant’s Counsel, that the rules of Court and evidence relieve a party of the need to prove what is admitted but where the Court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the defendant, that he is entitled. The necessity for this arises from the fact that the Court has discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence.”
In Obawole v. Williams (1996) 10 NWLR (Pt.477) 146 or (1996) LPELR-2158 (SC), the Court, per Ogundare, JSC, at page 33 paras A-B of the report said:
“Now, the law is that where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence not by admission in the pleadings of the defendant, that he is entitled.”
See also CPC v. INEC (2012) 2-3 SC 1; Dumez Nig. Ltd v. Nwakhoba & Ors (2008) 12 SC (Pt.111) 142; A-G Rivers State v. A-G Akwa Ibom State & Anor (2011) 3 SC 1. It would follow from case law that in a claim for declaration of title or right, the plaintiff will lose if no evidence is led irrespective of any admission in the statement of defence.
From the case presented by the first Respondent on the originating summons, he predicated all his claims in the third, fourth, fifth, sixth and seventh prayers on the originating summons on two paragraphs of deposition, paragraphs 25 and 35 of the affidavit in support, wherein he deposed that after the primary election, the third Respondent, the aspirant who came second in the primaries, informed him about the ineligibility of the Appellant to contest and that he was no longer interested in the race and was willing to support him in the fight on the issue and that he was the next person to be declared as the candidate as the third Respondent was no longer interested. The lower Court found that the depositions did not constitute sufficient evidence to sustain the reliefs sought. Counsel to the first Respondent has approached this Court in this cross appeal on the mistaken belief that the depositions were not denied by the third Respondent and that the lower Court was wrong for not relying on them to grant the reliefs.
The third Respondent filed a counter affidavit wherein he deposed, in direct response to paragraphs 25 and 35 of the affidavit in support, that he decided to accept the outcome of the primary elections and to support the candidacy of the Appellant so that the second Respondent can succeed in its bid to capture the seat from the Peoples Democratic Party in the 2019 General Election.
The third Respondent deposed that he was still interested in the position but was willing to wait for another opportunity and was ready to serve his community in other capacities. The third Respondent did not say that he accepted the outcome of the primary election as a show of the relinquishment of his right as the first runner up in favour of the first Respondent, the second runner up and he did not say he was no longer interested in the position. Where then is the admission of the said alleged relinquishment and the lack interest in the position by the third Respondent, and upon which Counsel to the first Respondent founded his entire arguments on the cross appeal? The foundation upon which the third, fourth, fifth, sixth and seventh prayers on the originating summons were erected; that the third Respondent relinquished the first runner up position at the primary election in favour of the first Respondent was non-existent; it was a mirage.
The lower Court was very correct when it found that the first Respondent did not lead sufficient evidence in proof of the third, fourth, fifth, sixth and seventh prayers sought on the originating summons.
This is particularly more so because the third Respondent was represented by Counsel in Court and who further contested those claims in his oral submissions. This cross appeal is a sheer waste of time and it is liable to be dismissed.
Before concluding this appeal, this Court deems it pertinent to comment on the quality of the briefs of arguments filed by the Appellant and the first Respondent on both the appeal and on the cross-appeal. They were unnecessary long, windy, confused, confusing and very repetitive. One of the invaluable assets that a Counsel must always possess is drafting skills. Briefs of arguments in an appeal contain the story of a party on which the appellate Court Justices are called upon to adjudicate. Like all good stories, the arguments in the brief must flow; they must be consistent, they must the concise, they must be comprehensive, they must be comprehensible; and they must be accurate. Some of the eternal qualities of a good brief of arguments are brevity and precision. It must not be too short as to leave out the essentials and must not be too long as to become otiose. The goal must be to achieve maximum brevity consistent with accuracy and clarity. A good brief does not allow for verbosity and must be a succinct statement of a partys argument in the appeal. A well crafted brief makes for joyful reading while a badly crafted one is tedious and laborious to understand and it is like a bad story which leaves an audience disgruntled, disgusted and unhappy Nagebu & Company (Nig) Ltd Vs Unity Bank Plc (2014) 7 NWLR (Pt 1405) 42. This point was well made by the Supreme Court in Ports & Cargo Handling Services Company Limited & 3 Ors Vs Migfo Nigeria Ltd & Anor (2013) 3 NWLR (Pt 1333) 555 at 577 where Galadima, JSC stated thus:
A brief of argument has the connotation of a really concise and succinct expression of the appellants complaint and the respondents reaction on the issue or issues presented to the Court for consideration. Clarity, simplicity and directness of expression are the hallmarks of a good brief. Although the rules of the Supreme Court do not limit a party to a number of pages in a brief of argument, the brief should not be unnecessarily voluminous and contain repetitive arguments of the issues settled.
Counsel must understand that a long and windy brief is discouraging to the appellate Court Justices saddled with the determination of an appeal and can only amount to disservice to the cause of a litigant, particularly in appeals of this nature where time within which the Court has to consider an appeal is fixed and can be very short. Litigation is not a long essay competition where success is determined by the length of the brief of arguments and it has been said that repetition does not improve an argument Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503. It is hoped that Counsel will be able to curtail their emotions in future and not let it boil over into their briefs.
In conclusion, the appeal of the Appellant succeeds and it is hereby allowed while the cross appeal of the first Respondent fails and it is hereby dismissed. The ruling/judgment of the Federal High Court sitting in Gombe in Suit No FHC/GM/CS/25/2018 delivered by Honorable Justice N. I. Afolabi on the 7th of February, 2019 is hereby set aside. The claims of the first Respondent on the originating summons before the lower Court are hereby dismissed. The Appellant is awarded the costs of this appeal assessed at N100,000.00 against the first Respondent. These shall be the orders of this Court.
TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading the lead judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree in entirety allowing the appeal and dismissing the cross appeal.
I abide by the order as to costs. The judgment of the Federal High Court delivered on the 7th of February, 2019 is also set aside by me.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I was obliged in advance with a copy of the judgment of my learned brother, HABEEB A. O. ABIRU, JCA just delivered. Without much ado I state clearly that I am in total agreement with the reasons advanced and the conclusion that the action filed by the first Respondent in the lower Court is statute barred and that the Appeal succeeds and should be allowed.
I also allow the Appeal and dismiss the cross Appeal of the 1st Respondent.
I abide by all the consequential orders including that on cost against the first Respondent.
Appearances:
A. T. Falola with him, I. A. KumoFor Appellant(s)
L. O. Fagbemi with him, R. Ayuba for the 1st Respondent.
I. A. Nassarawa with him, H. N. Nwoye & S. M. Kumo for the 2nd Respondent.
L. A. Haruna with him, H. N. Onyekwerefor the 3rd Respondent.
Yusuf Apollos Gutet with him, Hamamatu Manu for the 7th RespondentFor Respondent(s)
