ALH. MU’UAZU ZAID ALIYU V. SHEHU NUHU BABAJO

Legalpedia Citation: (2023-01) Legalpedia 33809 (CA)

In the Court of Appeal

Holden at Kaduna

Thu Jan 26, 2023

Suit Number: CA/K/288/2022

CORAM

CHIDI NWAOMA UWA

MOHAMMED BABA IDRIS

MUSLIM SULE HASSAN

PARTIES

ALH. MU’UAZU ZAID ALIYU

APPELLANTS

SHEHU NUHU BABAJO
PEOPLES DEMOCRATIC PARTY (PDP)
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The appellant who was the plaintiff at the Federal High Court made claims regarding the conduct of his party before and during the PDP primary elections for Zaria City constituency. He made a case about the delegates and the election which was scheduled for the 21st day of May, 2022 but held on the 22nd day of May, 2022.

The trial court upheld a preliminary objection raised by the 1st and 2nd Respondents and declined jurisdiction in further adjudicating the suit holding that the Plaintiff’s suit is statute barred and dismissed same.

Dissatisfied by the decision, the appellant pleaded his case before the Court of Appeal.

HELD

Appeal Dismissed

ISSUES

Whether the trial Court was right when it dismissed the Appellant’s suit and held that the Court lacks the jurisdiction to entertain the suit. (Distilled from Grounds 1,2 and 3 of the Notice of Appeal)
Whether the 2nd Respondent’s primary election scheduled for 21st May 2022 but held on the 22nd May 2022 was conducted in compliance with the Electoral Act and the guidelines for primary election 2022. (Distilled from Grounds 3 and 4 of the Notice of Appeal)

RATIONES DECIDENDI

JURISDICTION – WHEN A COURT HAS NO JURISDICTION TO HEAR A MATTER

The issue of jurisdiction of Court is radical and crucial question of competence because if a Court has no jurisdiction to hear and determine a case, the proceedings are, and remain a nullity ab initio, no matter how well conducted and brilliantly decided they might be. This is because a defect in competence is not intrinsic but extrinsic to the entire process of adjudication. Jurisdiction of Court is therefore considered to be the nerve Centre of adjudication, the blood that gives life to an action in a Court of law in the very same way that blood gives life to human beings. See DAPIANLONG V. DARIYE (No 2) (2007) 8 NWLR (Pt. 1036) 332 SC. – Per M. S. Hassan, JCA

JURISDICTION – IT SHOULD BE DETERMINED FIRST BY THE COURTS

There has been a plethora of authorities from the appellate Courts in Nigeria to the effect that an application to challenge jurisdiction of a Court must be brought within the earliest opportunity. It is trite that the question of jurisdiction is very fundamental and that it should be determined first by the Courts before starting any proceedings, if the Court proceeds without jurisdiction, all proceedings however well conducted, amounts to a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal in the Supreme Court. However, it is important to note that issues of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. See UKWU V. BUNGE (1997) 8 NWLR (Pt. 518) 527 SC; SCHEEP V. THE M.V. ‘’S. ARAZ’’ (2000) 15 NWLR (Pt. 691) 622 SC; JERIC NIG. LTD V. UBN PLC (2000) 15 NWLR (Pt. 691) 447. – Per M. S. Hassan, JCA

JURISDICTION – TO BE RAISED AT EARLIEST OPPORTUNITY

It is important for a party who perceives that a Court has no jurisdiction to hear a cause or matter to raise the issue at the earlier opportunity. Correspondingly, a Court is expected to decide the issue of its jurisdiction to hear a case when a challenge is raised at the earliest opportunity. See NNONYE V. ANYICHIE (2005) 2 NWLR (Pt. 910) 623 SC. – Per M. S. Hassan, JCA

JURISDICTION – PRINCIPLES FOR DETERMINING THE ISSUE OF JURISDICTION

The principles for determining the issue of jurisdiction are based on: (a) statement of claim; (b) evidence received on the motion and affidavit setting out the facts relied on or on the face of the writ of summons. See GUARANTY TRUST BANK PLC V. FADCO INDUSTRIES LTD. (2005) ALL FWLR (Pt. 287)913 CA; ARJAY LTD V. AIRLINE MANAGEMENT SUPPORT LTD (2003) 7 NWLR (Pt. 820) 577 SC. – Per M. S. Hassan, JCA

JURISDICTION – WHEN A SUIT IS STATUTE BARRED

On effect of pre-election matter filed out of time per SANUSI JSC (as he then was) stated in the case of ADEBAYO SEGUN ONI V. JOHN KAYODE FAYEMI & ORS (2019) LPELR-49299 (SC) at pages 20-23 paragraphs E-A that:

‘’It can be garnered from the record of appeal that the subject matter of this appeal originated from the primary election organized and conducted by the second respondent (APC) on 12th of May, 2018. The appellant alluded to this fact in paragraph 21 of the affidavit filed by the appellant in support of the Originating Summons which triggered the suit originally filed at the trial Court. It is also clear from the record that the suit filed by the plaintiff/appellant against the three defendants/respondents herein was filed, at the trial Court on 22/6/2018. That is to say 42 days after the primary election was conducted by the 2nd Respondent, which is the date the cause of action occurred. It is instructive to note that the Fourth Alteration Act 21 of 2017 has amended the provision of Section 285 of the 1999 Constitution by inserting subsection 9 which provides that ‘any pre-election matter shall be filed not later than 14 days after the from the date of the occurrence of the event, decision or action complained of’. In other words any suit must be filed within 14 days from the date the cause of action occurred. In this instant case, as I stated above, the pre-election which is the cause of action and is also the subject matter of the suit filed at the trial Court, took place on 12th May, 2018. Therefore, for the suit to come within the period specified in the 4th Alteration Act which is 14 days, the suit must have been filed at the trial Court latest by the 26th of May, 2018. The appellant herein, as plaintiff at the trial Court, filed his suit at the trial Court on 22 of June, 2018. That is to say, it was filed about 42 days after the occurrence of the cause of action on 12th May, 2018. It can therefore be said that by the provisions of the 4th Alteration Act which has it commencement date as 17th day of June, 2018, the suit had become statute barred as at the date it was filed. The trial Court is, right from the outset, in error when it entertained and determined the suit which said suit is incompetent suit. It also goes without saying, that the Court below and indeed this Court, the apex Court, lack jurisdiction to entertain and determine the appeal. In the result, it is my judgment that the suit which culminated into this appeal being incompetent by reason of being statute barred or by effluxion of time of filing, robbed this Court of the requisite jurisdiction to entertain, hear and determine the appeal. As a corollary, the suit is hereby adjudged incompetent and is hereby struck out. Having struck out the appeal for being incompetent due to same being statute barred, the cross-appeal having also been affected by the same virus rendering it incompetent, it is also hereby struck out.’’ – Per M. S. Hassan, JCA

JURISDICTION – WHERE AN ACTION IS STATUTE BARRED

One of the cardinal principles of Statutes of Limitation is that a person who sleeps over his right should not be assisted by the Court in any action for recovery of his property. It is a common saying that equity aids the vigilant and not the indolent. Delay also defects equity.

In OLADIPO COLE & ANOR V. INDUSTRIAL & GENERAL INSURANCE COMPANY LTD (2013) LPELR-22746(CA) per AUGIE, JCA (as he then was now JSC) at page 34-35 paragraph B Said:

‘’Whatever be the basis, there is a general consensus from available authorities that all limitation laws have the negative effect of closing the doors of the Court against the plaintiff- See Eboigbe v NNPC (1994) 5 NWLR (Pt. 347) 649, where Kalgo, JSC, observed- ‘’Where an action is statute barred, a Plaintiff, who might have had a cause of action, loses the right to enforce the cause of action by judicial process because the period of limitation laid down by the limitation law for instituting such an action has elapsed’’. And AG (Fed.) v. Sode (1990) 1 NWLR (Pt. 128) 500, where same Court held – ‘’It is true that Courts guard their jurisdiction jealously and will not rightly surrender to a provision taking away their jurisdiction. It is, however, well settled that where the words of a statute as to the jurisdiction of the Courts are clear and unambiguous, they must be given effect. But it is also well-settled that the exercise of a right of action is derived from the fundamental law of the land or any statute specifically conferring such right. The Court can only assume jurisdiction with respect to a right to action, and cannot assume jurisdiction unless the plaintiff, who has brought the action before it, has a right of action.’’ (Per Karibi-Whyte, JSC).’’ – Per M. S. Hassan, JCA

GROUNDS OF APPEAL – ISSUES RAISED BUT NOT COVERED BY GROUND OF APPEAL – CONDUCT OF COURTS

It is the law that grounds of appeal are akin to pleadings in the lower Courts and parties are bound by their grounds of appeal, they will not be allowed to go into any other reasons to the appeal except those set forth in their grounds of appeal. An issue raised and not covered by any ground of appeal filed is incompetent and will be struck out. See IMB SECURIES PLC V. TINUBU (2001) 16 NWLR (Pt. 740) 670 at 691 SC, DADA V. DOSUNMU (2006) 18 NWLR (Pt, 1010) 134 SC.

In the case of OBAJIMI V. A.G. WESTERN NIGERIA (1967) 1 ALL NLR 31 at 34. It was undoubtedly re-stated that a relief not sought cannot be granted since the Court is not a Father Christmas and if we may add in these times of economic recession, Father Christmas has ceased to be generous as he use to during Christmas festivities.

In the case of UNIVERSITY OF JOS v. DR. M.C. IKEGWUOHA (2013) LPELR-20233(SC) Page 22-23 paragraphs E-F the Supreme Court held:

‘’It is the law that for a party to be awarded any relief by a Court of law, that party must not only plead with particularity but also prove by credible and convincing evidence that he is indeed entitled to the relief he seeks. There is a plethora of case law on this very important subject matter. In PETER ADEBAYO ODOFIN & ANOR v. CHIEF AGU & ANOR (1992) 3 NWLR (PART 229) 350 this Court stated categorically that Courts ought not to play the role of Father Christmas which can go round granting to parties reliefs which they have not asked for. Let me state without any fear of contradiction that the ‘’free giving’’ Father Christmas no longer exists if he ever existed as parents pay indirectly for the ‘’gifts’’ which their children appear to get freely. See also CHIEF N.T. OKOKO v. MARK DAKOLO (2006) 14 NWLR (PART 1000) 401; AYANBOYE v. BALOGUN (1990) 5 NWLR (PART 151) 392 at 413; IGE v. OLUNLOYO (1984) ALL NLR 150; ATSER v. GACHI (1997) 6 NWLR (PART 570) 609 at 630; LADOKE v. OLOBAYO (1992) 8 NWLR (PART 261) 605 at 619-630; AWOSILE v. SOTUNBO (1992) 5 NWLR (PART 243) 514. The list of authorities on this subject matter is inexhaustive and are all to the effect that a Court of law has no jurisdiction to grant to a party that which he has not asked for. It is an old legal principle and is quite sacrosanct.’’ Per ALAGOA (JSC). – Per M. S. Hassan, JCA