Or V. Hon Kenneth Oboro Preyor & Ors In The Court Of Appeal Of Nigeria (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A.: (Delivering the Leading Judgment)

The appellants were the plaintiffs in suit No. FHC/ASB/CS/184/2011 at the Federal High Court, holden at Asaba, (simply referred to hereafter) as the court below.

The 1st appellant was a candidate of the 2nd appellant at the election into the Delta State House of Assembly as member representing the Bomadi Constituency, which was held on 26th April, 2011. At the end of the election, the 1st respondent was returned and declared as the winner thereof. This was challenged by the appellants at the National and State House of Assembly Election Tribunal, sitting at Asaba.

The petition was running its course when the appellants filed the action aforementioned at the court below vide an originating summons, challenging the qualification of the 1st respondent to contest the said election, on the complaint that the latter lied or misrepresented facts in Form C.F.001 submitted by him to the 3rd respondent for the purpose of contesting the election in violation of the provisions of Section 31(6) of the Electoral Act 2010 (as amended) and Section 107(1) (h) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The appellants, therefore prayed for some declaratory reliefs. The 1st respondent filed a preliminary objection to the hearing of the appellants’ action to the effect that the appellants’ action be struck out and/or dismissed for want of jurisdiction.

The grounds upon which the said preliminary objection was anchored were that:

“(1) The cause of action is spent and therefore proceeding with it will be an academic exercise.

(2) The claims of the plaintiffs are outside the jurisdiction of this honourable court.

(3) The cause of action is stated barred (sic) (statute-barred).

(4) The suit constitutes an abuse of court/judicial process.

(5) The facts of the case are hostile and therefore originating summons is not the proper method of initiating this suit.

(6) At the hearing of this objection, the 1st Defendant/Applicant shall rely on other legal and equitable grounds not spelt out above.”

Both learned counsel to the respective parties filed written addresses with respect to the 1st respondent’s preliminary objection. Each counsel also filed written addresses with respect to the appellants’ originating summons. In his judgment, the learned trial judge, in the main found for the respondents, to the effect that the 3rd respondent being a public officer was protected under Section 2(a) of the Public Officers Protection Act because the appellants’ action was not filed within three months from the accrual date of the cause of action.

Furthermore, that the appellants’ action was tantamount to an abuse of the process of court in view of the petition in respect of the same election pending at the election tribunal. The learned trial judge came to the conclusion that the appellants’ action qualified for a striking out for want of jurisdiction and also qualified for a dismissal for being statute-barred and/or abuse of court process. Thus, the preliminary objection succeeded essentially.