CORAM

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PARTIES

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ALL PROGRESSIVE CONGRESS (APC) APPELLANTS

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1.HON. LAWAL ABUBAKAR GARBA2.ABDULRAUF ABDULKADIR MODIBBO3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Plaintiff/1st Respondent commenced his suit via an Originating Summons asking the lower court amongst other reliefs sought to declare that the Defendant/Appellant’s primary election conducted for Yola North/Yola South/ Girei Federal Constituency was not in compliance with the provisions of Section 87(4) (c) (i) and (ii) of the Electoral Act, 2010 (as amended) and that it was unlawful for the Appellant to have recognised and forwarded the name of the 2nd Respondent to the 3rd Respondent as its candidate for the 2019 general election into Yola North/Yola South/Girei Federal Constituency of Adamawa State. Also, that the trial court should declare as inconclusive the primary election held, and set aside the nomination of the 2nd Respondent by the Appellant and restrain the 3rd Respondent from recognising or dealing with the 2nd Respondent as the candidate of the Appellant in the general election. In response, the Appellant filed a motion on notice challenging the jurisdiction of the trial court to entertain the 1st Respondent’s suit. In its judgment, the lower court upheld the Preliminary Objection filed by the Appellant and dismissed the suit of the 1st Respondent and went ahead to grant consequential orders in respect of the substantive suit after holding that it lacked the jurisdiction to entertain the said suit. The Appellant was dissatisfied with the judgment in respect of the substantive suit, thus this appeal.

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HELD

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Appeal Allowed

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ISSUES

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Whether the trial Judge was right to have gone ahead to deliver judgment in the substantive Suit after dismissing the same Suit on the ground that same is statute barred by virtue of Section 285(9) of the 1999 Constitution, 4th Alteration. Whether the learned trial Judge was right to have held that the decision of the National Working Committee of the Appellant to have nominated the 2nd Respondent as the Appellant’s candidate for the 2019 general election is justifiable. Whether the trial Judge was right to have suomotu raised and decided on the issue of over-voting when same was never raised as an issue or argued by any of the parties at the lower Court without giving the parties the opportunity to address it on the issue so raised suo motu. Whether the learned trial Judge was right to have granted reliefs not claimed at the lower court and of which there was no scintilla of evidence in respect of same by any of the parties at the lower court. Whether the learned trial Judge was right to have gone ahead to pronounce on the February 23rd, 2019 general election for office of a member representing Yola North, Yola South, Girei Federal Constituency of Adamawa State by nullifying the election/return of the Appellant’s candidate (2nd Respondent) having initially found and held that only an election tribunal established under Section 285(i) of the 1999 Constitution and not the Federal High Court has the requisite jurisdiction to nullify an election conducted by INEC. Whether the learned trial Judge was right to have held that the case of APC VS. Karfi (2018) 6 NWLR (PT. 1616) PAGE 479 is in all fours with the 1st Respondent’s case at the lower Court. Whether the learned trial Judge was right to have relied on an Originating Summons that was never issued by the lower court either by the registrar or the Honourable Judge?

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RATIONES DECIDENDI

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STATUTE BARRED ACTION- IMPLICATION OF HOLDING THAT A SUIT IS STATUTE BARRED

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“Where the court holds that a matter before it is statute barred it touches on the jurisdiction of the court to entertain the matter, it has no jurisdiction to entertain it however meritorious the case may be. The Plaintiff’s right of action is taken away leaving him with no enforceable cause of action. When the lower court dismissed the action for being statute barred there was nothing left for the court to determine, as doing so would be an exercise in futility. See, Nasir Vs. Civil Service Commission Kano State & Ors (2010) (Supra)”.

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STATUTE BARRED ACTION- CONSEQUENCES OF WHEN AN ACTION IS FOUND TO BE STATUTE BARRED

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“The learned trial judge rightly took the Preliminary Objection along with the substantive suit, the resolution of the Preliminary Objection was rightly done first. The resolution in this case terminated the determination of the merit of the case. In Olagunju & Anor Vs. PHCN Plc (2011) (Supra) his lordship Onnoghen, JSC (as he then was) stated clearly the position of the law thus:
It should be noted that when a defendant contends that the action of the plaintiff is statute barred, he is raising an issue of jurisdiction of the court on points of law because where an action is found to be statute barred it means that the court has no jurisdiction to entertain it however meritorious the case may be. The success of that point of law takes away the right of action from the plaintiff leaving him with an empty unenforceable cause of action.” (Underlined mine for emphasis).
See also Egboigbe vs.NNPC (1994) 5 NWLR (PT. 437) 649, Asaboro & Anor vs.Pan Ocean Oil Corporation (Nig) Ltd & Anor (2017) LPELR 41558 (SC) at 30-31, Adekoya vs.Federal Housing Authority (2008) 11 NWLR (PT. 1099) 539.”

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PRELIMINARY OBJECTION – WHETHER IT IS APPROPRIATE FOR A COURT TO DETERMINE THE SUBSTANTIVE SUIT AFTER UPHOLDING AN OBJECTION TO THE COMPETENCE OF THE SUIT

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“The court having upheld the objection to the competence of the suit ought not to have gone into the merit of the substantive suit, doing so is an exercise in futility, purely academic. It is immaterial that the substantive matter would have succeeded. See, Congress For Progressive Change Vs. Independent National Electoral Commission (2011) LPELR- 8257 (SC) PP 78 -79, paragraphs G-E.”

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ACADEMIC ISSUE – WHETHER AN ACADEMIC ISSUE RELATES TO A LIVE ISSUE

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“An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party. When the trial court upheld the preliminary objection and held that the suit was statute barred there was no live issue before the trial court for determination that would attract any benefit to the successful party. See, Tanimola Vs. Mapping Godatta Limited (1995) 6 NWLR (PT. 403) 517, Nwoboshi VS. ACB (1995) 6 NWLR (PT. 404) 658, Ogbonna Vs. President F.R.N. (1997) 5 NWLR (PT. 504) 281, Ndulue Vs. Ibezim (2002) 12 NWLR (PT. 780) 139 and Ikuforiji VS. F.R.N. (20180 LPELR – 43884 (SC) P. 11, C-F.”

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CASES CITED

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None

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Electoral Act, 2010 (as amended)|

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