Alhaji Jibrin Bala Hassan V. Dr. Mu’azu Babangida Aliyu & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

W.S.N. ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Holden at Kaduna in appeal No. CA/KD/78/08 delivered on the 22nd day of April, 2009 in which the court dismissed the appeal of the appellant against the judgment of the Federal High Court, Holden at Kaduna in suit No. FHC/KDS/CS/162/2007 delivered by that court on the 14th day of December, 2007, striking out the suit of the appellant, as plaintiff for lack of jurisdiction.

The facts of the case include the following; On the 13th day of December, 2006, the 2nd respondent conducted its primary election to select/nominate its candidate for the Gubernatorial election for Niger State scheduled for April, 2007 which election was won by the appellant, as a result of which his name and particulars were forwarded by the 2nd respondent to the 3rd respondent as the sponsored candidate of the 2nd respondent for the Niger State Governorship Election so scheduled. The 1st respondent was not a candidate at the primary election conducted in December, 2006 resulting in the emergence of the appellant; in fact at the material time, he was still a civil servant. Appellant was duly screened by the 3rd respondent and cleared to contest the said election.

However, on the 5th and 13th day of February, 2007, the 2nd respondent applied to the 3rd respondent to withdraw/substitute the 1st respondent for the appellant as the sponsored candidate of the 2nd respondent for the election in question which application was duly acted upon by the 3rd respondent. The 1st respondent, rather than the appellant, therefore contested the Niger State Governorship Election on the 14th day of April, 2007 and was consequently declared the winner thereof and was sworn in as the Governor of Niger State on the 29th day of May, 2007.

On the 7th day of November, 2007 the appellant instituted an action, suit No. FHC/KD/CS/162/2007 at the Federal High Court, Holden at Kaduna by way of Originating Summons asking for the determination of the following questions:-

“1. WHETHER having regard to the provisions of section 34(2) of the Electoral Act, 2006, the 2nd Defendant can without adducing cogent and verifiable reason change and or substitute the name of the plaintiff for the 1st Defendant as the Peoples Democratic Party Governorship candidate in the 14th April, 2007 Election in Niger State.

2. WHETHER having regard to the non-compliance with the condition to give cogent and verifiable reason as provided by section 34(2) of the Electoral Act, 2006 by the 2nd Defendant can act, on the name of the 1st Defendant as replacement of the plaintiff’s
3. WHETHER having regard to the non-compliance with the condition to give cogent and verifiable reason as provided by section 34(2) of the Electoral Act, 2006 by the 2nd Defendant, the plaintiff is not the duly nominated candidate for the 14th April, 2007 Gubernatorial Election in Niger State under the platform of the 2nd Defendant.
4. WHETHER having regard to the provisions of Article 17.2(b) of the Constitution of the Peoples Democratic Party and Articles 13 (a)-(g), 14(a)-(k), 15(i) (a)-(e) (2), 16(a)-(f), 18(a) & (b) and 19 its Electoral Guidelines for primary election, 2006, the 1st Defendant who did not contest the Gubernatorial Primary Election could be changed and or substituted by the 2nd Defendant for the plaintiff who won the said Primary Election by 3,575 lawful votes. ”

Consequently upon the determination of the above questions, the appellant claimed the following reliefs:-

“a. A DECLARATION that the plaintiff was the lawful candidate to contest the 14th April, 2007 Governorship Election in Niger State on the platform of the 2nd Defendant being the candidate who won the majority of 3557 (sic) lawful votes at the Primary Election conducted by the 2nd Defendant on the 13th day of December, 2006 and whose name was submitted by the 2nd Defendant to the 3rd Defendant.

b. A DECLARATION that the 1st Defendant who did not contest the Primary Election aforesaid as mandated by Article 17.2(b) of the Constitution of the Peoples Democratic Party and the Electoral guidelines for Primary Election, 2006 issued pursuant thereto, was not qualified to be nominated by the 2nd Defendant as its Gubernatorial Candidate in the 14th April, 2007 Governorship Election in Niger State.

c. A DECLARATION that the 1st Defendant who did not contest the Primary Election aforesaid was not the lawful candidate to contest the 14th April, 2007 Governorship Election in Niger State on the platform of the Peoples Democratic Party, the 2nd Defendant.

d. A DECLARATION that by virtue of the provisions of section 32(5) of the Electoral Act, 2006 it is only a court of law that can disqualify the plaintiff who was duly nominated as the Governorship candidate of the 2nd Defendant in the 14th April, 2007 Governorship Election in Niger State and whose name and particulars were submitted by the 2nd Defendant to the 3rd Defendant as such.

e. A DECLARATION that the option of changing or substituting the plaintiff with the 1st Defendant is only exercisable by the 2nd Defendant in strict compliance with the provisions of section 34(2) of the Electoral Act, 2006.

f. A DECLARATION that the sudden substitution of the plaintiff’s name with the 1st Defendant’s name with the 1st Defendant’s lacked nay merit and it constitutes a deliberate and flagrant infraction of the provisions of section 34(2) of the Electoral Act, 2006.

g. A DECLARATION that the nomination of the 1st Defendant as the gubernatorial candidate of the Peoples Democratic Party at the said Election and the acceptance thereof by the 3rd Defendant is VOID AB INITIO.

h. A DECLARATION that the plaintiff, whose name was unlawfully and unjustifiably removed as the Governorship candidate of the 2nd Defendant in 14th April, 2007 Governorship Election remains the candidate of the Peoples Democratic Party in the eyes of the law.

i. IN THE PREMISES OF THE FOREGOING, AN ORDER directing the 1st Defendant to immediately vacate the coveted seat of the Governor of Niger State.

j. A FURTHER ORDER directing the relevant authorities to immediately inaugurate and or swear in the plaintiff as the Executive Governor of Niger State.

On the 23rd of November, 2007, the 1st respondent, as 1st defendant filed a notice of preliminary objection challenging the jurisdiction of the trial court to hear and determine the suit as constituted on the following grounds:

“(i) This Honourable Court lacks jurisdiction in this matter.

(ii) This action being about steps taken by a Public Officer is statute barred having regard to the provisions of the Public Officers Protection Act.

(iii) Action of the Plaintiff amounts to an abuse of the process of the court.

(iv) The 1st Defendant is the sitting Governor of Niger State of Nigeria and enjoying constitutional immunity from civil and criminal actions whilst in office.

(v) The action of the Plaintiff is caught by the principles of Estoppel and Standing-by. ”

In respect of the 2nd Defendant, the Preliminary Objection is to the effect that:

(i) The Plaintiff’s action is caught by the equitable doctrine of Standing-by

(ii) The issue of nomination and substitution are all pre election matters which are no longer justiciable after holding of the election.

(iii) The 1st Defendant is covered by Constitutional Immunity.

The trial court heard arguments on the Originating Summons and the objections, and, in a judgment delivered on the 14th day of December 2007, the Court upheld the primary objections and consequently struck out the action.

Appellant was dissatisfied with that judgment and appealed to the Court of Appeal, as stated earlier in this judgment, which court dismissed the appeal in a judgment delivered on the 22nd day of April, 2009. The present appeal is against the said judgment, the issues for the determination of which have been identified in the appellant’s brief of argument filed by learned Senior Counsel for the appellant, P.I.N. IKWUETO ESQ, SAN on the 16th day of October, 2009 as follows:-

“1. Having regard to the clear, unequivocal and manifest provisions of section 34(2) and 36(1) of the Electoral Act; and Article 8 of the Guidelines and Regulations was the Change/Substitution of the Appellant as the sponsored candidate of the PDP in the 2007 Governorship Election in Niger State an abuse of office and with no semblance of legal justification

(Grounds 1, 2, 3, 5 and 6)

2. Whether the lower court properly considered and resolved the cardinal issues arising from the undisputed facts before it in reaching its conclusion in the appeal before it. (Grounds 3, 4, 7 and 9)
3. Is the immunity clause provided in section 308 of the 1999 Constitution applicable in any action challenging the unlawful assumption of office of a person who was never a lawfully sponsored candidate for the Governorship Election in a State (Niger State).

(Ground 8). ”

In the opinion of Learned Senior Counsel for the 1st respondent, OLAJIDE AYEDELE ESQ, SAN, the following are the issues that call for determination as stated in the 1st respondent’s brief of argument filed on 30/11/09:-

‘”(i) Whether the court below correctly found that the Public Officers Protection Law would apply to protect the 3rd Respondent in this case

(ii) Whether the Court of Appeal correctly considered the cardinal issues of fact arising from this case

(iii) Whether the immunity clause would apply to the 1st Respondent in the circumstances of this case.”

Learned Counsel for the 2nd respondent, ROTIMI OJO ESQ identified two issues for determination in the brief of argument filed on 30/11/09. The issues are as follows:-

“(a) Whether the concurrent findings of the lower courts are perverse or are not supported by credible evidence or have resulted in miscarriage of justice, and,

(b) Whether the cause of action of the appellant is not extinguished by the combination of the provisions of section 2(a) of the Public Officers Protection Act, and that of section 308 of the 1999 Constitution.”

Dr S.S. AMEH, SAN for the 3rd respondent, also formulated three issues for determination. These are as follows;-

“1) Whether in the circumstances of this case the Public Officers Protection Act is applicable to bar the right of the Appellant to institute this action

2) Whether the 1st Respondent having been sworn in as the Executive Governor of Niger State enjoys constitutional immunity against civil and criminal proceedings (same as the Appellant’s issue C which he more succinctly reformulated at page 32 of his Brief)

3) Whether the Lower Court was right in law affirming the decision of the Trial Court declining jurisdiction to determine the Appellant’s Originating Summons on the merit. ”

Looking at the above issues, it is clear that they are the same. I have gone through the record of proceedings including the processes filed in this matter and I am of the view that the primary issue agitating the minds of the parties and the courts is one, to wit:

Whether the court has jurisdiction to entertain and determine the action of the appellant having regards to the provisions of section 2(a) of Public Officers Protection Act and section 308 of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as the 1999 Constitution).

It should be noted that the lower courts did not go into the merit of the action at all, so they never considered nor resolved the issue as ‘to whether there was compliance with the provisions of sections 34(2) and 36(1) of the Electoral Act, 2006 nor go into the facts relating to the merit of the suit and resolve same. So in effect, appellant’s issues 1 and 2 supra that touch on the substance of the case of the appellant are not relevant to the determination of the appeal. As regards appellant’s issue 2, there was no need for the lower courts to resolve “the cardinal issues arising from the undisputed facts before it” as the matter was struck out based on a preliminary objection. In any event, the facts relevant to the grounds of the objection to writ, section 2(a) of the Public Officer’s Protection Act and section 308 of the 1999 Constitution are not in dispute in the proceedings. Anyway, learned Senior Counsel has admitted in the said issue 2 that the said facts were undisputed.

However, when one looks at page 8 of the appellant brief, another version of issue 1 is presented. It is as follows:

“Application of the Public Officers Protection Act to an unlawful/unconstitutional act by a public officer.”

In arguing the new look appellant’s issue I, supra, learned Senior Counsel for the appellant submitted that the Public Officers Protection Act is designed to protect a Public Officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification, relying on Nwankwere vs Adewunmi (1966) All NLR 119 at 124; Lagos City Council vs Ogunbiyi (1969) All NLR 297 at 299; C.B.N vs Okojie (2004) 10 NWLR (pt. 882) 448 at 523 and Offoboche vs Ogoja Local Government (2001) 16 NWLR (pt. 739) 458. It is the further submission of learned Senior Counsel that for a court to determine whether a public officer acted in good faith or without a semblance of legal justification the court has to go into a proper analysis of the facts and circumstances of the act complained of. As a follow up to the above submission learned Senior Counsel went into the gist of the appellant’s case before the court which is that contrary to and in total disregard of binding statutory provisions, the 3rd respondent purported to substitute the name of the appellant with that of the 1st respondent as the governorship candidate of the 2nd respondent in Niger State for the 2007 elections; that the affidavit in support of the Originating Summons contain detailed particulars of the gross violation of binding statutory provisions which rendered the purported substitution illegal, unlawful and being without any semblance of legal justification; that the 3rd respondent cannot act in total disregard of binding statutory provisions and still claim protection under the Public Officers Protection Act.

Citing and relying on the decision in the case of Ibrahim vs Judicial Service Committee, Kaduna State, (1998) 14 NWLR (pt. 584) at 32 learned Senior Counsel submitted that “the action of the Respondents in totally disregarding and violating clear and mandatory statutory provisions is unlawful, malicious and unconstitutional.”

It is the submission of learned Senior Counsel that the concurrent findings by the lower courts that there is no evidence by the appellant before the Court that the 3rd respondent acted beyond the scope of his office or maliciously or even with no semblance of legal justification is perverse having regards to the facts deposed to in the supporting affidavit and that on the authority of the case of Ojah vs Ogboni (1996) 6 NWLR (pt. 454) 272; Alakija vs Abdullahi (1998) 6 NWLR (PT. 552) 1 AND Ogbu vs Wokoma (2005) 14 NWLR (pt. 944) 118 at 140, this Court should intervene by exercising its powers under section 22 of the Supreme Court Act. Learned Senior Counsel then went on to point out what he terms “manifest defects/irregularities” in the letter of substitution and notice of withdrawal /substitution which counsel says show that the purported act of substitution was in flagrant disregard of the dictates of the official duties incumbent on the 3rd respondent and without any semblance of legal justification. The statutory defects, according to learned Senior Counsel include absence of cogent and verifiable reason for the substitution contrary to section 34(2) of the Electoral Act, 2006 as decided in the case of Ugwu vs Ararume (2007) 12 NWLR (pt. 1048) 367; Amaechi vs INEC (2008) 5 NWLR (pt. 1080) 227 at 296; Agbakoba vs INEC (2008) 18 NWLR (pt. 1119) 489 at 549 and Ehinlawo vs Oke (2008) 16 NWLR (pt. 1113) 357 at 403 and urged the court to resolve the issue in favour of the appellant.

On his part, learned Senior Counsel for the 1st respondent, OLAJIDE AYODELE ESQ, SAN submitted that the 3rd respondent is protected by section 2(a) of the Public Officers Protection Act because the action against it was not instituted within 3 months of the accrual of the cause of action. Referring to paragraphs (n), (o), (p) and (g) of the affidavit in support of the Originating Summons, learned Senior Counsel submitted that they do not contain facts showing what unlawful acts or steps were taken by the 3rd respondent; that the matter haven been decided on a preliminary objection, there was no need to go into the merits of the case even though appellant appears to argue that in order to determine whether the act of the public officer (3rd respondent) was done outside its scope of authority the court has to examine the men, of the case presented by the appellant; that the acts of a public officer that would make his actions not to be protected by the Public Officers Protects Act must be extraneous to the merits of the case against the public officer which the appellant has failed to show; that the courts below were under no obligation to determine the unlawfulness or otherwise of the purported substitution of the candidate but whether having regards to the facts and circumstances of the case the Public officers Protects Act avails the 3rd respondent; that does avail the 3rd respondent as it took the appellant eight months from the time his cause of action accrued to the institution of the action contrary to the three months required by the Act, and urged the court to so hold.

Learned Counsel for the 2nd respondent, ROTIMI OJO ESQ referred to paragraphs 4 – 5 of the affidavit in support of the Originating Summons and submitted that they contain no act of malice against the 3rd respondent nor do they show the act of the 3rd respondent which is devoid of legal justification, that there was therefore no evidence in support of the allegation that 3rd respondent acted outside the scope of its authority etc, etc.

On his part learned Senior Counsel for the 3rd respondent, DR. S.S. AMEH, SAN submitted that there is no doubt that the 3rd respondent is a public officer to whom section 2(a) of the Public Officer’s Protection Act applies, that the only dispute is whether the circumstances of this case constitute an exception in the applicability of the said provision of the Act that there is no evidence on record that the 3rd respondent acted outside the scope of its authority or maliciously or with no semblance of authority, that appellant devoted the whole time in arguing the merit of the case to the effect that the act of the 3rd respondent was unlawful whereas the merit of the case is not the issue in this case but that of jurisdiction- a threshold issue, that learned Senior Counsel has not addressed the issue determined by the lower courts as his submission on issue 1 is completely irrelevant and urged the court to discountenance same. Finally learned Senior Counsel submitted that the issue in this case is whether the action of the appellant is maintainable having regards to the circumstances of the case and not whether the 3rd respondent is liable, relying on the case of Egbe vs. Alhaji (1990) 1 NWLR (Pt. 128) 546; Yusuf vs. Egbe (1987) 2 NWLR (Pt.56) 341; Fajimolu vs. University of Ilorin (2007) All FWLR (350) 1361.

At this stage, it is necessary to state that the 3rd respondent filed a preliminary objection which he argued in the brief of argument urging the court to strike out grounds 2, 3, 5 and 6 for not questioning the decision appealed against. The grounds on which the objection is grounded are stated as follows:-

(a) That issues 1 and 2 as framed by the appellant do not arise from the grounds of appeal filed.

(b) That grounds 2, 3, 5 and 6 of the grounds of appeal do not attack the decision appealed against.

(c) That issues 1 and 2 are equally incompetent having being framed from one ground of appeal; to wit, ground 3.

In arguing the objection, learned Senior Counsel for the 3rd respondent referred the court to issues 1 and 2 as framed by the appellant at page 7 of the appellant’s brief and submitted that the issues as framed go to the merit of the case which was never determined by the lower courts as conceded by appellant at page 6, paragraph 2.14 of the brief; that the lower courts struck out the action for lack of jurisdiction and that issues 1 and 2 were never issues before the lower courts neither did the courts determine same; that if issues 1 and 2 are struck out, it follows that grounds 1, 2, 3, 4, 5, 6, 7 and 9 on which the invalid issues are based must be struck out, relying on Osafile vs Odu (1994) 2 NWLR (pt. 325) 125 at 129. Learned Senior Counsel further submitted that grounds 2, 3, 5 and 6 do not attack the decision of the lower court and as such are incompetent, relying on Addumo vs Oganla (2009) All FWLR (451) 992; Isah vs Kamba (2009) All FWLR (456) 1901 at 1904; that ground 1 should be struck out for being argued together with the incompetent grounds 2, 3, 5 and 6, relying on Tamiyu vs Olaosun (2009) All FWLR (451) 960 at 965.

It is the further contention of learned Senior Counsel that issues 1 and 2 were distilled from ground 3 thereby rendering the two issues incompetent and liable to be struck out, relying on Agbeotu vs Brishe (2005) All FWLR (251) 1454 at 1464 – 1465; D.E.N.R. Ltd vs Trans International Bank Ltd (2009) All FWLR (456) 1823.

In the reply brief filed on the 20th day of January, 2010, learned Senior Counsel for the appellant went on to reargue his case as already argued in the main brief and strangely introduced the issue of breach of the rules of fair hearing in that the lower court, by not determining the case put forward by the appellant as to the legality of the substitution denied appellant fair hearing which constitutes a substantial error for which this Court can intervene to set same aside, under section 22 of the Supreme Court Act; that the court can reject, modify or reframe issues for determination so as to bring out the real question in controversy, relying on Ojikutu vs Odeh (1954) 14 WACA 640 at 641; Labiyi vs Anretiola (1992) 8 NWLR (pt. 258) 139 at 159; Agbakoba vs INEC (2008) 12 S.C (pt. 111) 171 at 203 etc.

Finally on this point, learned Senior Counsel submitted thus, at page 15 of the reply brief, paragraph 431.

“Your Lordships are therefore invited to find that the interest of justice would be best served by hearing and determining this appeal on its merits. Should your Lordships be inclined to so find, your Lordships may rightly proceed to take such necessary reparactive measures as are necessary to determine this appeal finally on its merits.”

I had earlier in this judgment commented briefly on the appellant’s issues 1 and 2 as formulated at page 7 of the brief of argument and my doubts as to their propriety having regards to the facts and circumstances of the case relevant to the determination of the main issue in contention between the parties. However, when I turned to page 8 of the said brief, I saw a reformulated issue 1 which is more in accord with the grounds of appeal and the issue in contention between the parties. I had adopted the reformulated issued I at page 8 of the brief and summarised appellant’s argument in support thereof as well as those of the other parties. In short, I have exercised the power of the court to correct the defect in the framing of the issues for determination by modifying or refraining same so as to bring out the real issue in contention between the parties in the appeal. Consequently, the Preliminary Objection is hereby overruled.

Turning now to the resolution of the reframed issue 1, both parties agree that an action against a public officer must be commenced within three months of the accrual of the cause of action as provided in section 2(a) of the Public Officers Protection Act. The party who claims protection under the above Act is the 3rd respondent. What does section 2(a) of the Public Officers Protection Act provide

“2. Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance of execution or intended execution of any Act or Law or of any public duty or authority or; in respect of any alleged neglect or default in the execution of any Act, Law, duty or authority, the following provisions shall have effect:

(a)The action, prosecution, or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in the case of continuance of damage or injury, within three months next after the leasing thereof.

Provided that of the action, prosecution proceedings be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison. ”

It is the case of the appellant that though the 3rd respondent can, in an appropriate case, claim the protection offered by the above provisions of the Act, the said provisions do not avail the 3rd respondent in the instant case because in taking the action complained of the 3rd respondent did not act in good faith or did not act with any semblance of legal justification or acted in total disregard of binding statutory provisions which in this case include the provisions of sections 34(2) and 36(1) and (2) of the Electoral Act, 2006.

In the case of Egbe vs Adefarasin (1985) 1 NWLR (pt. 3) 549 at 568 – 569, this Court stated the law as follows:-

“The general principle of law is that where the law provides for the bringing of action within a prescribed period, in respect of a cause of action accruing to the plaintiff, proceeding shall not be brought after the time prescribed by the statute- see Obiofuna vs Okoye (1961) 1 All NLR 357. An action brought outside the prescribed period offends against the provision of the section and does not give rise to a cause of action. A cause of action means the factual situation stated by the plaintiff; if substantiated, entitles him to a remedy against the defendant- See Latana vs Cooper (1964) 2 ALL ER 929. The claim must rest on and be supplied by a cause of action…”

To the above general rule there is an exception, which exception constitutes the contention of the appellant in this case to wit, where the public officer concerned fails to act in good faith or acts in abuse of office or maliciously or with no semblance of legal justification, as decided in the case of Lagos City Council vs Ogunbiyi (1969) All NLR 297 at 299; C.B.N vs Okojie (2004) 10 NWLR (pt. 882) 448 at 523; Nwankwere vs Adewunmi (1966) All NLR 119 at 124; Offoboche vs Ogoja Local Government (2001) 16 NWLR (pt. 739) 458.

It should be noted that there is clear distinction between a cause of action and a right of action to enforce the cause of action or the right of judicial relief in the plaintiff. The distinction must be constantly kept in view to avoid confusion. There is no doubt that the appellant in this case has a cause of action. The cause of action is founded on the fact that appellant, who alleged that he was the duly nominated candidate of the 2nd respondent for election into the office of Governor of Niger State scheduled for 14th April, 2007, was by a letter of 5th and 13th February, 2007 substituted by the 1st respondent as the sponsored candidate for that election contrary to the provisions of sections 34(2) and 36(1) & (2) of the Electoral Act, 2006. The above cause of action accrued on the 13th day of February, 2007 when the substitution was affected. It is the accrual of the cause of action that confers on the appellant the right to institute an action to enforce the cause of action or right to a judicial relief.

Now the effect of a statute of limitation, such as the provisions of section 2(a) of the Public Officers Protection Act, supra, on both cause of action and right of action is that it bars the right of action and not the cause of action.

The cause of action refers to the facts or combination of facts which the plaintiff must adduce to entitle him to the relief(s) claimed,

while action or right to institute the action remains the means or medium affording the plaintiff the opportunity to ventilate his grievances – cause of action or bundle of facts, as variously described by the courts over the years.

The effect of a statute of limitation on the action of a plaintiff therefore is that it takes away the right of the plaintiff to institute the action but leaves him with his cause of action intact, though, without the right to enforce same or right to judicial relief.

When an issue of limitation of time to institute an action is raised, it is a preliminary issue touching on the competence of not only the action, but of the court before which the action pends. It is long settled that an issue of jurisdiction is a periphery matter which must be resolved before proceeding to determine the merits of the case, where the issue is found not to have any merit.

In the instant case, the matter resulting in the instant appeal originated by way of a preliminary objection challenging the jurisdiction of the trial court to entertain the action as constituted. However, I am worried that Learned Senior Counsel for the appellant has emphatically submitted that the lower courts, in trying to resolve the issue at stake, ought to have delved into the merits of appellant’s case. At page two (2) paragraph 4.15 of the appellant’s brief, counsel submitted as follows:-

“My Lords, it is submitted that the lower courts completely ignored and overlooked the relevant statutory provisions enumerated above in determining the unlawfulness of the purported substitution of the Appellant by the Respondents as the Governorship candidate of the 2nd Respondent for Niger State in the 2007 Elections.”

It is trite that jurisdiction is very fundamental to adjudication and that where a court lacks the competence to hear and determine a matter but proceeds to do so, an appellate court is duty bound to nullify a decision resulting therefrom.

It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act.

It is the duty of the plaintiff/appellant to adduce evidence or facts to establish the bad faith, lack of semblance of legal justification etc, etc. The facts to be produced must exist to enable the court find the absence of semblance of legal justification etc, etc otherwise once it is established that the action was instituted outside the statutory period of three months, the action is time barred and the court will have no jurisdiction to entertain same.

Are there facts on record from which the court can agree with the appellant that the 3rd respondent acted outside its scope of authority or without the semblance of legal justification in acting on the letter of substitution in question

To answer the question one has to look at the affidavit in support of the Originating Summons, particularly paragraphs 4 and 5 thereof, which deposed as follows:-

“4 That in the course of my duty aforesaid in chambers on the 6th day of November, 2007 at 11.00am, I am informed by the Plaintiff and Tajudeen O. Oladoja Esq of Counsel and I verily believe their information as true and correct as follows;

a. That the Plaintiff is a member of the Peoples Democratic Party, the 2nd Defendant in Niger State. He contested the Niger State Gubernatorial Primary Election conducted by the 2nd Defendant. A copy of the receipt of payment of nomination form is annexed herewith and marked as annexure 1.

b. Thai the Plaintiff was duly nominated and sponsored by the 2nd Defendant as its Gubernatorial Candidate for the 14th April, 2007 Governorship Election in Niger State.

c. That the Plaintiff emerged as the candidate of the 2nd Defendant having gone through the screening, clearance and primary Election conducted by the 2nd Defendant on the 13 day of December, 2006 in Minna, Niger State.

d That upon being screened and cleared to contest the 2nd Defendant’s primary election, the Plaintiff and 9 other aspirants contested the said primary election and he emerged the winner having scored 3,579 lawful votes. Copies of the Certificate issued to the Plaintiff by the 2nd Defendant and the result sheet of the primary election aforesaid are exhibited as “annexure 1 ”a” & ”1b”.

e. That the detail particulars of the result of the primary election aforesaid are as follows:

S/NO NAMES TOTAL NOS OF VOTES SCORED POSITION.

1. JIBRIN BALA GUNA HASSAN 3.579 1ST
2. UMAR AHMED BAKAY 09 9TH
3. IDRIS ABUBAKAR AZOZO 542 4TH
4. BWARI ABUBAKAR BAWA 261 5TH
5. MOHAMMED ISHA LADAN 795 2ND
6. TANKO MOHAMMED LOKOJA 002 10TH
7. SANI MUSA 054 7TH
8. SHEM ZAGBAYI NUHU 202 6TH
9. DAVID UMARU 547 3RD
10. INUWA MOHAMMED ZAKARI 005 8TH

f. That as at the date of the primary election aforesaid the 1st Defendant was a Federal Civil Servant. He retired from the Federal Civil Service with effect from the 1st day of February, 2007. A letter accepting the retirement of the 1st Defendant from the Federal Civil Service is exhibited as annexure 2.

g. That following the victory of the Plaintiff at the primary election aforesaid. The National Chairman & National Secretary of 2nd Defendant submitted the plaintiff’s name along with names of its 35 other governorship candidate nationwide to the 3rd Defendant for the 14th April, 2007 Gubernatorial Election. A copy whereof is herewith attached and marked ”annexure 3”.

h. That the 3rd Defendant upon the receipt of the name of the Plaintiff from the 2nd Defendant published the Plaintiff’s name on their notice board and went further to publish the information and sworn affidavit in support of the particulars of the Plaintiff in all local Government Area Secretariat in Niger State.

i. That on the 16th January, 2006 the 3rd defendant began what is called the verification of the documents of the candidates of all political parties.

j. That on the 21st day of January, 2007, the Plaintiff participated in the 3rd Defendant’s mandatory screening exercise and was cleared to contest the aforesaid Governorship Election.

k That no law Court disqualified either the Plaintiff or his running mate from contesting the 14th April, 2007 governorship election in Niger State.

l. That since the receipt by the 3rd Defendant of the submission of the name of the Plaintiff from the 2nd Defendant and the publication of his particulars showing the piece of information supplied by him and his running mate, no person challenged the veracity of the information.

m. That despite the fact the 1st Defendant did not contest the primary Election aforesaid as mandated by the constitution of the 2nd Defendant and the Electoral guideline made pursuant there-to the 2nd Defendant submitted the name of the 1st Defendant to the 3rd Defendant accepted the said substitution or change without any cogent or verifiable reasons adduced by the 2nd Defendant Copies of the constitution of the 2nd Defendant, the Electoral guideline made pursuant thereto and the letter of submission dated 5th February, 2007 are here with attached and marked as annextures “4” “5” & “6” respectively.

n. That despite the fact that the Plaintiff did not withdraw from the Governorship Elections the 2nd Defendant submitted to the 3rd Defendant a purported notice of withdrawal/submission of candidates dated 13th day of February, 2007. A copy whereof is herewith attached and marked as annexture “7”.

o. That the purported change and or substitution of the Plaintiff was effected on the 13th day of February, 2007 which was 59 days to the Governorship Election of 14th April, 2007.

p. That it is on the premise of the substitution aforesaid that the 1st Defendant contested the Niger State Governorship Election, which cumulated into his being declared as the winner thereof subsequent to which he was sworn in as the Executive Governor of Niger State.

q That the Plaintiff has suffered irreparable political injury on account of his name being wilfully and wrongfully changed or substituted with the 1st Defendant’s name by the 2nd Defendant.

r. That the Plaintiff was not indicted by any Court of Law.

s. That it is the interest of Justice to grant this application.

It is not the contention of the appellant that the 3rd respondent has no legal authority to receive and act on the application of the 2nd respondent to substitute its candidate in accordance with the provisions of section 34(2) of the Electoral Act, 2006. In fact, and as concurrently found by the lower courts, the 3rd respondent is duty bound to so act, the issue as to whether the said application contains cogent and verifiable reasons(s) notwithstanding. In fact, it is the absence of a cogent and verifiable reason for any substitution that confers a cause of action on a plaintiff which can be legally enforced in a court of law subject, of course, to the fulfilment of any preconditions that may exist. I hold the view that where the 3rd Respondent acts on an application for substitution that is later found to contain no cogent and verifiable reason it cannot be held to have acted outside its scope of authority or without any semblance of legal authority or to have acted in bad faith etc, etc. In fact, looking at the totality of the depositions in the affidavit supra, it is clear there is no import or allegation of bad faith or lack of semblance of legal authority etc in or against the 3rd respondent. Paragraph 4(q) of the affidavit specifically accuses the 2nd defendant, and rightly in my view, as being the cause of the substitution of the appellant by the 1st respondent, not the 3rd respondent.

Returning to the facts deposed to in the supporting affidavit can any fact be gleaned therefrom to ground any of the exceptions to the applicability of section 2(a) of the Public Officers Protection Act I do not see any There is nothing to show that in acting the way the 3rd respondent did, it acted in bad faith, maliciously or that its act was devoid of any legal justification. There are many facts to support or prove the use of action, if it had survived, but definitely none to support the allegation that 3rd respondent acted outside the scope of its authority etc, etc. I therefore agree with the concurrent findings of facts that there was no scintilla of evidence in support of the alleged on of the appellant. It is therefore clear that with the accrual of the cause of action on the 5th and/or 13th of February, 2007 and the institution of the action on the 7th day of November, 2007, a period of more than three months from the accrual of the cause of action, the action so instituted was caught by the provisions of section 2(a) of the Public Officers Protection Act and therefore incompetent. The lower courts were right in so holding. I therefore resolve issue 1 against the appellant.

On the second issue which deals with the provisions of section 308 of the 1999 Constitution, learned Senior Counsel for the appellant submitted that the lower court overlooked the binding decision of this Court in the case of Amaechi vs INEC (2008) 5 NWLR (pt. 1080) 227 in coming to the conclusion that the 1st respondent was protected by the provisions of section 308 of the 1999 Constitution particularly as the instant action ”challenges the process through which the respondents contrived and unlawfully planted the 1st Respondent as the Governor of Niger State.”

It is the further submission of learned Senior Counsel that the instant case is an election related matter whose res will be totally destroyed unless action can be instituted and maintained against the 1st respondent “who is unlawfully and unconstitutionally occupying the office of Governor of Niger State. ”

On his part, learned Senior Counsel for the 1st respondent submitted that the provisions of section 308 of the 1999 Constitution apply to the facts of this case particularly as the appellant did not challenge the election of the 1st respondent at the Election Tribunal, which he-should have done to prevent the applicability of section 308 supra neither did he challenge his substitution by the 1st respondent prior to the election in question as a pre-election matter; that looking at the reliefs claimed in this case, it is clear that claim(h) is like a claim under section 145(1)(d) of the Electoral Act, 2006 and ought to have been Wed at the Election Tribunal just as claim (i): that appellant brought the claims eight or nine months after the election making the suit a evil suit against the 1st respondent as the Governor of Niger State and therefore” subject to the provisions of section 308 of the 1999 Constitution, learned Senior Counsel further submitted, and urged the court to resolve the issue against the appellant.

In his view, learned Counsel for the 2nd respondent stated that the action could have qualified as a pre-election matter if it had been instituted before the election in question and if it had not gone on to question the return of the.1st respondent as the duly elected Governor and also prayed the court not only to nullify the said election but declare the appellant as the duly elected Governor who is to be sworn in as such; that the present case is distinguishable from the Amaechi’s case supra on the facts and as such the provisions of section 308 of the 1999 Constitution apply to the facts of this case.

Learned Senior Counsel for the 3rd respondent submitted that the action IS not an election petition but a civil matter which is caught by the provisions of section 308 of the 1999 Constitution and that the courts have no jurisdiction to entertain the matter as constituted; that the case of Amaech, is distinguishable from the facts of this case particularly as Amaechi’s case was instituted before the election.

Now section 308 of the 1999 Constitution provides as follows:-

“(i) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section;

a. No civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office.

b A person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

(c) No process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued provided that in ascertaining whether period of limitation has expired for the purpose of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.

(2) The provisions of sub-section (1) of this section shall not apply to civil proceeding against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

(3) This section applies to a person holding the office of President or Vice President, Governor or Deputy Governor, and the reference in this section to “period of office” is a reference to period during which the person holding such office is required to perform the functions of the office.”

There is no doubt that section 308 of the 1999 Constitution confers absolute immunity on the present, vice

President, Governor and Deputy Governor in respect of civil or criminal matters during their tenure in office. The provision clearly suspends the right of action or the right to judicial relief of an aggrieved party during the tenure of office of the officials mentioned therein. In other words, the right of action is put in limbo until the expiration of the tenure of office of the affected government official. The expiration of the tenure kick starts the accrual of the cause of action or revives same.

However, the provisions of section 308 of the 1999 Constitution do not protect a President or Governor from legal proceedings in a matter of his election per se or in a matter connected therewith even when he has been, as a contestant, declared duly elected and sworn in as such. The reason for that is that election petitions and election related proceedings are really special proceedings distinct from civil or criminal proceedings which fall within the province of the said section 308 of the 1999 Constitution – See Onitri vs Benson (1960) SCNLR 314; Oyekan vs Akinjide (1965) NMLR 381; Amaechi vs INEC (2008) 5 NWLR (pt. 1080) 227 at 343.

The question that follows is whether the instant action is a civil matter or action or election related matter. The answer to the question will determine the applicability of the provisions of section 308 of the 1999 Constitution.

I had earlier reproduced the questions for determination the reliefs claimed by the appellant in the Originating Summons which initiate the action. Of particular interest are reliefs (h), (i) and (j) which claim as follows:-

“h. A DECLARATION that the Plaintiff, whose name was unlawfully and unjustly removed as the Governorship Candidate of the 2nd Defendant in the 14th April, 2007 Governorship Election remains the candidate of the Peoples Democratic Party in the eyes of the law.

i. IN THE PREMISES OF THE FOREGOING AN ORDER directing the 1st Defendant to immediately vacate coveted seat of the Governor of Niger State.

j. A FURTHER ORDER directing the relevant authorities to immediately inaugurate and or swear in the plaintiff as the Executive Governor of Niger State.

While claim (h) can be said to be a pre-election civil matter, claims (i) and (j) relate to election petition reliefs. Taking the reliefs as a whole, it is clear that reliefs (a) – (h) are pre-election matters.

It should be noted that it is not in dispute that the substitution of the 1st respondent for the appellant which constitutes the cause of action of the appellant took place on the 5th day of February, 2007. Appellant did not immediately institute the action to challenge the said substitution. The 1st respondent subsequently contested the Governorship Election of 14th April, 2007 and was declared the winner. Still appellant did not institute the action. In fact, he did not even challenge the election at the Election Tribunal for appropriate relief(s). Appellant did not institute the present action until 8th November, 2007, months after the election and the swearing-in of the 1st respondent as the duly elected governor of Niger State. In fact, appellant has not produced any evidence to explain why he did not file any action either at the High Court challenging the substitution or at the Election Tribunal challenging the election of the 1st respondent until about eight or nine months after the election in question.

It is settled law that in an election or election related matter, time is of the essence. I will add that the same applies to pre-election matters. Election matters are sui generis, very much unlike ordinary civil or criminal proceedings. Appellant ought to have instituted the action soon after the substitution to keep his interest in the political contest alive but he did not. If he had but the election went on and the 1st respondent sworn to as the Governor, by the authority of the decision in Amaechi vs. INEC supra, section 308 of the 1999 Constitution would have been rendered a toothless bull dog.

I hold the view that at the time appellant decided to go to court in the circumstances of this case, the question of nomination by way of substitution which is a pre-election matter had ceased to exist leaving only the election proper to be questioned and the proper place to do so is the Election Tribunal. If the situation in this case is encouraged, it will bred uncertainty in the polity when a person may wake up a year or more after an election and swearing-in of a President or Governor to challenge his nomination by way of substitution for the election that brought him to power. Or he may even do so after the tenure of office of the official concerned which attitude ought not to be encouraged by the law. It should be noted that appellant has the right to waive his right to the nomination by way of substitution which by his inordinate delay, he appears to have projected. Everyone must be watchful of his legal rights and be vigilant. In the instant case, appellant went to sleep until section 308 of the 1999 Constitution caught up with him upon his waking up. The instant action is clearly a civil action which is not maintainable against the 1st respondent during the tenure of the 1st respondent. I therefore agree with the lower courts that section 308 of the 1999 Constitution applies to the facts of this case, and resolve the issue against the appellant.

Appellant might have had a good case but he was not diligent in pursuing it. It is dangerous to lay the precedent that a party who was substituted wrongfully or otherwise is at liberty to challenge the substitution or nomination by way of substitution of this opponent months or years or at anytime during or even after the tenure of the elected government official and have the election annulled and himself declared the winner or governor by the regular courts. That will be ambushing the Governorship seat at the gate of the judiciary, which I think ought not to be encouraged.

It is clear that at the expiration of the tenure of the incumbent Governor of Niger State, the cause of action of the appellant would have been completely extinguished but that is what he ought to have known when he went to sleep over his right(s), if any. The above clearly demonstrates the fact that in election matters’, whether pre-election or the election proper or election related matters, time is of the essence. It will do no one any good if the political system is kept heated up for months or even years after an election without giving those sworn in the peace of mind to steer the ship of state in the right direction or fail in the process. I had earlier stated that appellant’s issue 2 is not relevant.

The issue is as follows:

Whether the lower court properly considered and resolved the cardinal issues arising from the undisputed facts before it in reaching the conclusion in the appeal before it.

It has to be noted that the undisputed facts of the case do not relate to the facts needed to establish the case on the merit but the facts needed to resolve or determine the preliminary objection. What are the grounds of the objection They are

(i) That the 3rd respondent being a public officer is protected by the Public Officers Protection Act;

(ii) that the 1st respondent haven been-duly sworn in as Governor of Niger State, the action against him is not maintainable having regards to the provisions of section 308 of the 1999 Constitution;

(iii) that appellant is estopped from instituting the action having regards to the equitable doctrine of laches,

acquiessence and standing-by, and,

(iv) that the suit not being an election petition challenging the return of the 1st respondent cannot be maintained in the Federal High Court.

The facts relating to the above grounds of objection are not in dispute and abound in the record. It is very clear from this judgment affirming the decisions of the lower courts that those courts actually took time to examine the grounds of objection before coming to the conclusion they reached.

To repeat the whole process all over again by way of resolving an issue will definitely serve no useful purpose as a resolution of the above two issues in this appeal has completely taken care of the original issue 2 and I so hold.

The invocation of the powers of this Court under section 22 of the Supreme Court Act by learned Senior Counsel for the appellant is misconceived having regards to the facts of this case. Section 22 of the Act can only be invoked where the lower courts are found to be clothed with the requisite jurisdiction to entertain and determine the matter under consideration but failed and or neglected to do.

Where, however, as in this case, the lower courts have no jurisdiction to entertain the matter the power of this Court under section 22 of the Supreme Court Act becomes irrelevant and consequently inapplicable.

In conclusion, I find no merit in this appeal which is accordingly dismissed by me. I however, make no order to costs having regards to the nature of the case and the parties involved.

Appeal dismissed.

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SC.170/2009