Larry Ven Bawa v. Hon. Hehemiah Tsentse Dandaura & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

EMMANUEL AKOMAYE AGIM, JSC (Delivering the leading judgment)

This appeal No. SC/CV/317/2023 is against the judgment of the Court of Appeal sitting at Makurdi delivered on 10-2-2023 in appeal No. CA/MK/PE/38/2022 setting aside the judgment of the Federal High Court sitting at Lafia delivered on 6-12-2022 in suit No. FHC/LF/CS/18/2022 dismissing the suit for being statute barred, and deciding the merit of the suit that was not tried by the trial court and granting all the reliefs claimed for in the originating summons.

The parties herein filed, exchanged and adopted their respective briefs as follows – appellant’s brief, 1st respondent’s brief, 2nd respondent’s brief, appellant’s separate replies to each of the respondent’s brief.

The appellant’s brief raised 4 issues for determination as follows;

1. “Whether the lower court erred in law when it dismissed the appellant’s notice of preliminary objection and assumed jurisdiction to hear and determine the 1st respondent originating summons as a court of first instance, inspite of the expiration of the 180 days from the date of filing of the originating summons. (Distilled from grounds 1 and 2 of the notice of appeal).
2. Whether the lower court was in error when it held that the 1st respondent’s suit before the trial court was not statute barred. (Distilled from grounds 3 and 4 of the notice of appeal).
3. Whether the lower court was not wrong when it held that the 1st respondent has proved its case and granted the reliefs sought in the originating summons. (Distilled from grounds 5, 6, and 8 of the notice of appeal).
4. Whether the lower court was not wrong when it held that the service of the record of appeal dispenses with the requirement of the personal service of the notice of appeal on the appellant. (Distilled from ground 9 of the notice of appeal)”

The 1st respondent’s brief also raised 4 issues for determination as follows:-

1. “Whether the lower court was not right in law when it determined the 1st respondent’s suit on merit especially that all relevant material were before it to exercise its jurisdiction. (Distilled from grounds 1 and 2 of the notice of appeal).
2. Whether the lower court was not right in law when it held that the 1st respondent’s suit was not statute-barred having regard to the pleadings in general and specifically that the appellant was issued with Form EC9 on the 24-6-2022 and the instant suit was filed on the 6-7-2022 (a period within 14 days) (distilled from grounds 3 and 4).
3. Whether upon the proper evaluation of the parties’ pleadings and having regard to the process of nomination of candidates of the 3rd respondent, the lower court was not right when it granted the 1st respondent’s claims having won the primary election of Akwanga North State Constituency of Nasarawa State. (Distilled from grounds 5, 6, 7 and 8)
4. Whether the lower court was not right when it held that it was satisfied that the 1st respondent’s notice of appeal filed 19th December, 2022 was properly communicated to the appellant. (Distilled from ground 9)”

The 2nd respondent’s brief raised 3 issues for determination as follows:-

1. “Whether the lower court was right, when it held that the service on all the respondents, the record of appeal containing the notice of appeal was communicated to the appellant (distilled from ground 9 of the notice of appeal).
2. Whether the honourable court was right, when it dismissed the appellant’s preliminary objection, challenging the jurisdiction of the lower court to hear the 1st respondent’s suit, then went ahead to hear and determined the substantive suit without remitting it to the trial court to hear and determine. (Distilled from grounds 1, 2, and 3 of the notice of appeal)
3. Whether the holding of the honourable lower court that, the claim of the 1st respondent as contained in the originating summons had been proved and granted same, has occasioned a miscarriage of justice. (Distilled from ground 5 of the notice of appeal).”

I will determine this appeal on the basis of the issues raised in the appellant’s brief.

Let me start with issue No. 2 which asks:-

“Whether the lower court was in error when it held that the 1st respondent’s suit before the trial court was not statute barred. (Distilled from grounds 3 and 4 of the notice of appeal).”

I have carefully read and considered the arguments of both sides on this issue.

The suit leading to this appeal was filed by the 1st respondent on 6-7-2022. There is no disagreement that the event, decision or action complained against by the 1st respondent as plaintiff in the suit leading to this appeal and which constitute the cause for the action is 3rd respondent’s issuance of INEC Form EC9 to the appellant to fill and submit as its candidate for the election. But the parties disagree on the date the said Form was issued to the appellant.

The 1st respondent deposed in the affidavit in support of the originating summons that the date of the said issuance is 24-6-2022. The appellant and 3rd respondent deposed that in their respective counter-affidavits that it was on 22-6-2022. None of them produced any document that show the date the 3rd respondent dispatched the said form to the appellant or when the appellant received it. So, the trial court and the Court of Appeal determined that dispute on the basis of the competing depositions in their respective affidavits of the parties.

The trial court resolved the matter thusly:-

The case of the plaintiff is that notwithstanding that he allegedly won the Primary election of the 27th – 28th May, 2022, which was duly monitored by the 1st defendant and issued with Form EC9 as provided by law by the 2nd defendant on the 23-6-2022, for the purposes of the preliminary objections the governing or material fact his assertion and compliant that the 2nd defendant was wrong in law when it issued another form EC9 to the 3rd defendant on 24-6-2022 having earlier issued same to him on the 23-6-2022.