CORAM

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

IBRAHIM MOHAMMED MUSA SAULAWA

ADAMU JAURO

TIJJANI ABUBAKAR

EMMANUEL AKOMAYE AGIM

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PARTIES

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MARK BAKO USENI

APPELLANTS 

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1. ALEXANDER MAMCHIKA ATTA

2. ALL PROGRESSIVES CONGRESS

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, PRACTICE AND PROCEDURE, EVIDENCE, ELECTION PETITION, CONSTITUTIONAL LAW

 

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SUMMARY OF FACTS

The Appellant and the 1st Respondent obtained Nomination and Expression of Interest Forms of the 2nd Respondent for its primary election to select its candidate for the House of Representatives seat of Donga/Takum/Ussa Federal Constituency of Taraba State ahead of the 2023 general elections.

The 1st Respondent claimed that the primary election was slated for 28th May, 2022, but could not be conducted on that day and was postponed to 29th May, 2022. He contended that neither he nor INEC were given notice of the postponement or rescheduling. It was also his case that although the election did not hold, the 2nd Respondent announced the Appellant as the winner on 29th May, 2022. The 1st Respondent was displeased with the state of affairs, he therefore instituted a suit before the Jalingo Division of the Federal High Court.

On the merit, the trial Court held that the 1st Respondent proved his case and granted his claims except the prayer that he be declared the winner or the primary election. The trial Court however ordered a fresh primary election within 14 days of the delivery of the judgment.

The Appellant was dissatisfied by the judgment of the trial Court and he exercised his right of appeal by instituting an appeal before the Court below. After hearing the appeal, the learned justices of the lower Court agreed with the trial Court and affirmed its judgment in toto. The cross-appeal filed by the 1st Respondent against the failure of the trial Court to declare him as the winner of the primary election was equally dismissed.

 

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HELD

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Appeal Allowed

 

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ISSUES

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Whether the Court of Appeal is correct that there is no feature or fact that robbed the trial Court of jurisdiction to entertain and determine the 1st Respondent’s case?

Whether the Court of Appeal was right to have affirmed the judgment of the trial Court.

 

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RATIONES DECIDENDI

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JURISDICTION – CONDITIONS TO BE FULFILLED BEFORE A COURT IS COMPETENT

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The prominent role of jurisdiction of a Court in the adjudicatory process cannot be overemphasised, for without jurisdiction, a Court is without competence to adjudicate over or entertain any matter before it. It is for this reason that jurisdiction is referred to as the lifeblood of adjudication. Jurisdiction is to adjudication; what oxygen is to human beings. Any proceeding conducted in the absence of jurisdiction amounts to an exercise in futility and any decision reached will be nullified on appeal. See KURMA V. SAUWA (2019) 3 NWLR (PT. 1659) 247, BELLO V. DAM ISA (2017) 2 NWLR (PT. 1550) 455, SALISU V. MOBOLAJI (2014) 4 NWLR (PT. 1396) 1, SHELIM V. GOBANG (2009) 12 NWLR (PT. 1156) 435, MATARI V. DANGALADIMA (1993) 3 NWLR (PT. 281) 266.

A Court is competent to adjudicate over a matter if all of the following conditions are fulfilled:

“a) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another;

b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

c) The case comes before the Court initiated by due process or law and upon fulfilment of any condition precedent to the exercise of jurisdiction.”

See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341, EZE V. PDP & ORS (2018) LPELR – 44907 (SC), NNPC & ANOR V. ORHIOWASELE & ORS (2013) LPELR – 24710 (SC). – Per Adamu Jauro, JSC

 

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STATUTE BARRED ACTIONS – MEANING AND IMPLICATION

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An action is said to be statute barred when it is time barred by the provision of a statute. It means that the suit has been commenced beyond the time stipulated for filing same by the provisions of a statute or the Constitution. Any action brought outside the time limited by statute is incompetent, even if it is late by only one day. Once an action is found to be statute barred, it is immaterial whether or not the suit has merit, no Court has jurisdiction to entertain such a suit. Even if same will be entertained by a trial or intermediate Court, that would only be done to enable the final Court have the benefit of their opinion in case they are wrong about the action being statute barred. 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. Nevertheless, the legislature has prescribed certain periods of limitation for instituting certain actions. The rationale for this is the public policy consideration that mere must be an end to litigation and the need to stop parties from litigating over stale disputes. – Per Adamu Jauro, JSC

 

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STATUTES OF LIMITATION – PRE-ELECTION AND POST-ELECTION MATTERS

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In pre-election and post-election matters, the purpose of limitation of action is the well-known principle that time is of the essence in pre-election matters and parties are to file their actions timeously. This is why the time stipulated for commencing actions in such matters are always short.

See AGUMA V. A.P.C. (2021) 14 NWLR (PT. 1796) 351, WALI V. A.P.C. (2020) 16 NWLR (PT. 1749) 82, ABUBAKAR V. MICHELIN MOTOR SERVICES LTD. (NO.1) (2020) 12 NWLR (PT. 1739) 555, GARBA V. A.P.C. (2020) 2 NWLR (PT. 1708) 345, NASIR V. C.S.C., KANO STATE (2010) 6 NWLR (PT. 1190) 253.

This is why the time stipulated for commencing actions in such matters are always short. – Per Adamu Jauro, JSC

 

 

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STATUTE BAR – COURSE OF ACTION – MEANING

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For the purpose of limitation of action, time starts to run when all the facts which constitute the Plaintiff’s cause of action have happened. In other words, the time starts to run when the cause of action accrues.

Now, what does cause of action mean? Cause of action means the fact or combination of facts which gives rise to a right to sue. It is the ‘factual situation’ stated by the Plaintiff which, if substantiated, entitles him to a remedy against the Defendant; the factual situation, the existence of which entitles one person to obtain from the Court a remedy against another person.

See NWEKE v. UNIZIK AWKA (2017) 18 NWLR (PT. 1598) 454, OWODUNNI V. REG. TRUSTEES OF CCC (2000), 10 NWLR (PT. 676) SANDA V. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT. 174) 379.

Per Adamu Jauro, JSC.

 

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ELECTION MATTERS – STATUTE BAR – WHEN TIME STARTS TO RUN

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When time begins to run depends on the exact provisions of the statute imposing the limitation of time. In pre-election matters, it is Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which provides as follows: “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.” (underlining mine for emphasis)

From the wordings of the provision, it is glaring that one must decode the event(s), decision(s) or action(s) complained of and determine when it/they occurred.

Per Adamu Jauro, JSC.

 

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STATUTE BAR – DETERMINATION – COURT CAN CONSIDER ALL MATERIALS BEFORE IT

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As a general rule, in determining whether an action is statute barred, it is the Writ of Summons and Statement of Claim or in an action commenced by Originating Summons, the Originating Summons and the affidavit in support that are to be considered. However, where the objection as to limitation of time is considered by the Court after evidence has been taken by the Court or where the suit is commenced by Originating Summons procedure and the affidavits of the parties as well as the objection are adopted together at the same hearing, the Court would be entitled to consider all the materials before it, including the Statement of Defence or counter-affidavit of the Defendant. In ABDULLAHI V. LOKO & ORS (2022) LPELR – 57578 (SC), the position of the law was enunciated thus: “In determining whether an action is statute barred, plethora of the decisions of this Court has stated that it is only the Statement of Claim that is the relevant process to be considered. And in an action commenced by originating summons, the Court is restricted to the affidavit in support of the originating summons. However, the approach has changed in recent times particularly when the merit of the suit is considered together with the preliminary objection alleging limitation of action. The current position of the law is that in considering whether an action is statute barred, the cogent facts in the statement of defence or facts deposed to in the counter-affidavit as the case may be, are also material and relevant for consideration. When a Court is faced with the question challenging its jurisdiction, just like the instant appeal, the Court will consider all the available facts that are cogent and relevant to the issue.” This approach accords more with the principle of fair hearing as the Defendant who has adduced evidence is entitled to have his evidence considered by the Court in determining the objection as to limitation of action. See also KARSHI & ORS V. GWAGWA & ORS (2022) LPELR – S7544 (SC), WALI V. APC (2020) 16 NWLR (PT. 1749) 82, APC V. LERE (2020) 1 NWLR (PT. 1705) 254.

Per Adamu Jauro, JSC.

 

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AVERMENTS – EXCEPTION – WHERE AN AVERMENT IS MERELY IN RESPONSE TO EARLIER AVERMENT

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The well-known general rule is that an averment that is not responded to or controverted is deemed admitted. However, this rule admits of exceptions. In filing pleadings generally, where an averment is merely in response to an earlier averment made by the opposing party and no new issue is introduced, there would be no need to file a response. This applies whether the parties are filing pleadings or affidavit evidence.

Per Adamu Jauro, JSC.

 

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PLEADING – WHERE IT RAISES NO NEW ISSUE

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Failure of the opposing party to respond to a pleading or affidavit that raises no new issue or is not cogent enough to prove the case of the party who filed it will not be detrimental. See MOHAMMED V. WAMMAKO (2018) 7 NWLR (PT. 1619) 573, OGOEJEOFO V. OGOEJEOFO (2006) ALL FWLR (PT. 301) 1992, EGESIMBA V. ONUZURUIKE (2002) 15 NWLR (PT. 791) 466.

Per Adamu Jauro, JSC.

 

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STATUTE BAR – DETERMINED BY COMPUTATION OF RAW FIGURES

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In determining whether an action is statute barred, the Court must meticulously compute the raw figures. The determination involves employing various yardsticks, all of which demand computation of figures:

(a) The date when the cause of action accrued.

(b) The date of commencement of the suit as indicated in the Writ of Summons.

(c) The period of time prescribed for bringing an action, to be ascertained from the statute in question. See INEC V. OGBADIBO LOCAL GOVT & ORS (2015) LPELR – 24839 (SC), AG ADAMAWA STATE & ORS V. AG FEDERATION (2014) LPELR – 23221 (SC), AJAYI V. ADEBIYI (2012) 11 NWLR (PT. 1310) 137.

The Plaintiff’s cause of action accrues the moment there is a Defendant to sue, when all the combination of facts giving rise to an enforceable claim crystallize, on the date on which the incident giving rise to the cause of action occurs.

Per Adamu Jauro, JSC.

 

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STATUTE BAR – CONDUCT OF THE COURT – THE DISCRETION OF THE COURT HAS NO PART TO PLAY

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In the consideration of whether a suit is statute barred, the discretion of the Court or judex has no part to play. In the words of the erudite jurist, Niki Tobi, JSC in ADEKOYA V. FHA (2008) LPELR – 105 (SC):

“In order to determine whether an action is statute barred or not, the Court must be involved in the exercise of calculation of years, months and days to the minutest detail. It is really an arithmetic exercise which needs a most accurate answer… It is a matter of calculation of raw figures in the determination of whether an action is statute barred or not. A Court of law has no discretion in the matter. It is as stringent as that. In determining whether an action is statute-barred or not, the most crucial consideration is when the cause of action arose. A cause of action arises the moment a wrong is done to the plaintiff by the defendant. And the wrong which is the basis of a dispute represents factual situation which entitles the plaintiff to seek a remedy in a Court of law by way of enforcement.”

See also ABDULLAHI V. LOKO & ORS (supra).

It should also be borne in mind that election-related matters are sui generis and one of their peculiar characteristics is that they are time bound. Therefore, laws relating to computation of time in election-related matters are always construed very strictly.

Per Adamu Jauro, JSC.

 

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ELECTION – PROVISIONS RELATED TO TIME ARE STRICTLY CONSTRUED

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…as I have earlier stated, provisions related to time in election-related matters are always strictly construed. This is more so when the time is prescribed by the Constitution. It is immovable; it cannot be extended out of pity or sympathy. It is like the rock of Gibraltar that cannot be enlarged. See AMADI V. I.N.E.C. (2013) 4 NWLR (PT. 1345) 595, OGBORU V. UDUAGHAN (2012) 11 NWLR (PT. 1311) 358, A.N.P.P. V. GONI (2012) 7 NWLR (PT. 1298) 147.

Per Adamu Jauro, JSC.

 

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STATUTE BAR – DETERMINATION – CONSIDER ALL MATERIALS BEFORE THE COURT

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This case is a textbook example of the benefits of considering all the materials before the Court in determining whether an action is statute barred. In KARSHI & ORS V. GWAGWA & ORS (supra), it was explained succinctly:

“Where the objection that the suit is statute barred is considered and determined after the conclusion of evidence by both sides, then the Court cannot ignore the evidence before it and pretend it does not exist and determine the objection only on the basis of the originating processes. At that stage, all the processes and evidence before the Court must be considered, especially where the objection is determined as part of or along with the final judgment on the merit of the dispute in the case, as has happened in this issue.

This approach pursues the substantial justice of the matter and reduces the incidence of unscrupulous litigants, who, knowing very well that their claim is already statute barred, coin or phrase their case in such a manner as to hide or misrepresent the fact that it is statute barred to exploit the principle that only the originating process should be considered in determining the issue of when the cause of action accrued and abuse the process of Court sending it on a futile trial of a stale cause that it lacks jurisdiction to try.”

Where a suit is statute barred, a Court is prohibited from considering its merit, irrespective of how genuine the Plaintiff’s complaints may appear to be, as the essence of limitation of action is not in the lack of a right of action, but in the extinguishing of that right. It follows, therefore, that no matter how promising the case of the Plaintiff may appear to be, once it is statute barred, it is dead and buried forever. Such a Plaintiff is left with an empty cause of action that is rendered unenforceable. See AROYAME V. GOV., EDO STATE (2023) 1 NWLR (PT. 1866) 549, TOYIN V. MUSA (2019) 9 NWLR (PT. 1676) 22, AJAYI V. ADEBIYI (supra).

Per Adamu Jauro, JSC.

 

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JUDGMENT – SHERIFF AND CIVIL PROCESS ACT

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It suffices to say that this Court recently delivered two judgments on the issue, namely: APPEAL NO. SC/CV/1482/2022 BETWEEN: HON. OLOBATOKE SEGUN SAMUEL V. ALL PROGRESSIVES CONGRESS (APC) & 2 ORS delivered on 13th January, 2021 and APPEAL NO. SC/CV/1402./2022 BETWEEN: PDP V. ENGR JOHN IBRAHIM UCHE & 2 ORS delivered on 6th January, 2023. In both judgments, it was held that the provisions of the Sheriffs and Civil Process Act do not apply to the service of originating processes issued by the Federal High Court for service within the territory of the Federal Republic of Nigeria.

Per Adamu Jauro, JSC.

 

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ASPIRANT – DEFINITION

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The definition of an aspirant under Section 152 of the Electoral Act is in pari materia with the definition of the same word under Section 156 of the Electoral Act, 2010 (as amended). The decisions of this Court regarding who is an aspirant under the old Electoral Act remain applicable in our pre-election jurisprudence. The point should be settled by now that only an aspirant who participated in a primary election can seek refuge under Section 84(14) of the Electoral Act, 2022 to challenge that primary election.

See ABUBAKAR V. TANKO (2019) 3 NWLR (PT. 1658) 1, EZE V. P.D.P. (2019) 1 NWLR (PT. 1652) 1, NDUUL. V. WAYO & ORS (2018) LPELR – 45151 (SC), ARDO V. NYAKO (2014) 10 NWLR. (PT. 1416) 591, PDP & ANOR V. SYLVA & ORS (2012) LPELR – 7814 (SC).

Per Adamu Jauro, JSC.

 

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CASES CITED

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STATUTES REFERRED TO

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Electoral Act, 2022

The APC Constitution, 2022;

The APC guidelines for the Nomination of candidates for the 2023 General Elections

Constitution of the Federal Republic of Nigeria 1999 (as amended)

The Sheriffs and Civil Process Act.

The Federal High Court Act

 

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