SENATOR AYOGU EZE & ORS v. BARR. GEORGE OGARA & ANOR In The Court of Appeal of Nigeria
(2019)LCN/13858(CA)
On Thursday, the 7th day of March, 2019
CA/A/103/2019
RATIO
POWER OF A COURT TO ENTERTAIN A MATTER
The law is no doubt that a Court must be competent and must possess the necessary jurisdiction to entertain or adjudicate upon the subject matter of an action.
It is also settled that a Court will not be vires to entertain an incompetent action, where such an action or suit is not properly constituted or is filed outside the constitutional or statutory time frame prescribed for the institution of an action or suit. The Court will also lack the jurisdiction to entertain an action that is wanting in bonafide, thus constituting an abuse of Court process. See
DINGYADI v. INEC (N0.2) (2010) 7-12 SC 105;
ARUBO v. AIYELERU (1993) 3 NWLR (PT 280) 125;
ADESANOYE v. ADEWOLE (2000) 9 NWLR (PT 127) 671;
BOKO v. NUNGWA (2019) 1 NWLR (PT 1654) 395 @ 429. PER ABDU ABOKI, J.C.A.
WHAT DETERMINES WHETHER A COURT HAS JURISDICTION
It is also very potent that in determining the jurisdiction of any Court, it is the Plaintiff’s claim that determines the jurisdiction of the Court. It is the Plaintiff’s claim before the Court that has to be looked at to ascertain whether it comes within the jurisdiction of the Court. See
ELELU ? HABEEB v. A.G. FEDERATION(2012) 13 NWLR (PT 13180 423;
ZAKIRAI v. MUHAMMAD (2017) 16 NWLR (PT 1594) 181.
In a case begun by Originating Summons, it is the Originating Summons and the affidavits in support that must be looked at to ascertain jurisdiction. See
TIMIPRE v. INEC (2015) 3 SCM 263 @ 289
ALHAJI JIBRIN ISAH v. INEC & ORS (2016) 18 NWLR (PT 1544) 175 @ 223;
SKYE BANK PLC v. VICTOR ANAEMENIWON (2017) 6 NWLR (PT 1590) 24 @ 111-112;
UTIH v. ONOYIVWE (1991) 1 SC(PT) 65@ 96-97 MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341;
GOYANG KAYILI v. ESLY YILBUK & ORS (2015) 7 NWLR (PT 1457) 26;
AKINFOLARIN v. AKINOLA (1994) 3 NWLR (PT 335) 659;
ADEYEMI v. OPEYORI (1976) 9-10 SC 31 @ 51. PER ABDU ABOKI, J.C.A.
ELECTION MATTERS : NATURE
Election related matters are sui generis. They are unlike ordinary civil proceedings without a time bar. See:HASSAN V. ALIYU (2010) ALL FWLR (PT. 539) 1007 AT 1046. In the instant case the failure of the 1st Respondent to file his suit not later than 14 days after the action complained, as required by Section 285 (9) of the CFRN (4th Alteration Act 2017) is fatal to his case and ousted the Trial Court of its jurisdiction to entertain the matter.
We are of the opinion that this action is statute barred for having been filed outside the 14 days prescribed by Section 285 (9) aforesaid. The effect of the Statute of Limitation is that the right of the Plaintiff to commence an action has been extinguished by the law. See
IBRAHIM v. JSC (1998) 14 NWLR (PT 584) 1;
ATTORNEY GENERAL ADAMAWA STATE v. ATTORNEY GENERAL FEDERATION (2014) LPELR 23221 (SC);
MICHAEL OBIEFUNA v. OKOYE (1961) 1 ALL NLR 357;
FRED EGBE v. ADEFARASIN (NO.2) (1985) 1 NWLR (PT 3) 549;
FADARE v. ATTORNEY GENERAL, OYO STATE (1982) NSCC 643;
TIMIPRE SYLVA v. INEC & ORS (2015) 3 SCM 263 @ 289;
INEC v. OGBADIBO LOCAL GOVERNMENT & ORS (2015) 9 SCM 122 @ 141;
INAKOJU v. ADELEKE (2007) 4 NWLR (PT 1025) 423
PER ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. SENATOR AYOGU EZE
2. ADAMS OSHIOMOLE
3. PROF MOSES MOMOH
4. ALL PROGRESSIVES CONGRESS (APC) Appellant(s)
AND
1. BARR. GEORGE OGARA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): By an Originating Summons dated the 2nd of November 2018, and filed on the 5th of November 2018, and accompanied with an affidavit of urgency and address in support of the Originating Summons, the 1st Respondent herein, as Plaintiff at the Federal High Court, sitting in Abuja (hereafter called the Trial Court), claimed the following reliefs:
A DECLARATION that by virtue of the mandatory provisions of Article 3 (L) and Article 4(2) of the All Progressives Congress Guidelines for the 2019 General Election (Direct Primaries), the 1st Defendant as an aspirant is mandatorily required to present evidence of members of the 4th Defendant Enugu State Governorship Direct Primary to qualify to contest therein.
A DECLARATION that by the virtue of Article 3(L) and the proviso thereto and Article 4(2) of the All Progressives Congress Guidelines for the nomination of Candidates for the 2019 General Elections (Direct Primaries), the legal consequences of non-qualification of the 1st Defendant contained in the proviso thereto cannot be waived by the 2nd Defendant’s National Working Committee without the approval the National Executive Committee of the 4th defendant.
A DECLARATION that by virtue of the mandatory provision of Article 3 (L) and the proviso thereto and Article 4(2) of the All Progressives Congress Guidelines for the Nomination of Candidates for the 2019 General Election (Direct Primaries), the 1st Defendant is ineligible to contest the 4th Defendant Enugu State Governorship Direct Primaries Election conducted on 4/10/2018.
A DECLARATION that the Plaintiff, having scored the highest number of Votes cast by members of the All Progressives Congress, Enugu State for Governorship aspirants in the direct primary election conducted on 4/10/2018 at the 260 Wards, is the nominated Candidate of the 2nd 4th Defendants and the Plaintiff’s name is entitled to be forwarded by the 2nd, 3rd and 4th Defendants to the 5th Defendant as the Candidate of the 2nd and 4th Defendants in the 2019 Enugu State Governorship election.
A DECLARATION that the direct primary election for Plaintiff emerged as the winner on 4/10/2018, wherein the Plaintiff emerged as the winner on 4/10/2018, having scored the highest number of Votes cast in the said direct primary election for Enugu State Governorship aspirants is consistent with and is in compliance with the provisions of Section 87(3) of the Electoral Act, 2010 (as amended) and Article 20 (iii) of the All Progressives Congress Constitution, 2014 (as amended).
A DECLARATION that the 2nd, 3rd, 4th Defendants refusal, neglect and failure to forward the name of the Plaintiff to the 5th Defendant as the Candidate of the 4th Defendant and /or the refusal of the 5th Defendant to publish the name of Plaintiff as the Candidate of the 4th Defendant for the Governorship election is contrary to the provisions of Section 87 (3) of the Electoral Act, 2010 (as amended) and Article 20 (iii)(e) of the All Progressives Congress Constitution, 2014 (as amended).
AN ORDER of perpetual injunction restraining the 2nd and 4th Respondents whether by themselves, their servants, agents, privies or howsoever called from submitting any other name, not being the name of the plaintiff to the 5th Defendant, the Plaintiff having scored the highest number of votes cast in the direct primary election conducted for Enugu State Governorship aspirants on 4/10/2018 for the nomination of the Enugu State Governorship Candidate.
AN ORDER of perpetual injunction restraining the 5th Defendant, whether by itself, its servants, agents, workers, privies or howsoever called from accepting or receiving any other name, not being the name of the Plaintiff having scored the highest Votes in the direct primary election for aspirants of the 4th Defendant for Enugu State Governorship Candidate held on 4/10/2018 at the 260 Wards in Enugu State.
AND for further order or orders as the Honourable Court may deem fit to make the circumstance.
The facts leading to this appeal is that the 4th Appellant, a registered political party, as enjoined by law conducted primaries to elect its governorship candidate for Enugu State in line with the provisions of its Constitution and the Electoral Guidelines issued pursuant to its provisions. At the end of the primaries which was conducted on the 4th October, 2018 under the leadership of the 3rd Appellant who was appointed as the Chairman of the Governorship Election Committee set up by National Working Committee of the 4th Appellant, the 1st Appellant emerged victorious and his name was forwarded to the 2nd Respondent, the Independent National Electoral Commission (INEC).
It is the story of the Appellants herein, that the 1st Respondent was not a candidate at the primaries held on the 4th October, 2018 in Enugu State. According to them, the purported primaries, wherein the 1st Respondent allegedly emerged winner was conducted under the auspices of one Deacon Okey Ogbodo and not the primaries conducted by the National Working Committee of the 4th Appellant.
The 1st Respondent however claimed that he emerged the winner of the 4th Appellant’s primary election for Enugu State Governorship Candidate of the 4th Appellant, and but his name was not submitted to the 2nd Respondent, hence this current case claiming the reliefs earlier set out above.
The Originating Summons is supported by a 52 paragraph affidavit sworn to by the 1st Respondent (See pages 10 to 28 of the supplementary record II), and a Written Address in compliance with the Rules of the lower Court (See pages 603 to 644 of the Record).
On the other hand, the 1st Appellant filed a Counter-Affidavit to the Originating Summons on 13/11/2018 (See pages 153 to 226 of the Record).
In response to the 1st Appellant’s Counter-Affidavits, the 1st Respondent filed a Further Affidavit in support of Originating Summons on 10/12/2018 (see pages 321 to 349 of the record). Similarly, in response to the 2nd to 4th Appellants’ Counter-Affidavit, the 1st Respondent filed a Further Affidavit in support of Originating Summons on 10/12/2018 (see pages 350 to 377 of the record).
Furthermore, the 1st Appellant filed a Notice of Preliminary Objection on
