At the Federal High Court, Kaduna, the Appellant herein,
by an Originating Summons dated 12th November, 2007,
presented the following questions for determination:-
“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 People’s
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, the 3rd
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 provision
of Article 17.2 (b) of the Constitution of
the Peoples Democratic Party and Articles

13 (a) – (g), 14 (a) – (k), 15 (1) (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.”
The Appellant, who was the plaintiff therein sought 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 3579 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 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 People’s
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 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 lacked any merit
and constitutes a deliberate and fragrant
infraction of the provision 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 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 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.
As would be expected, the Respondents filed their respective
counter affidavit in opposition to the Originating summons. In
addition, the 1st and 2nd Respondents filed Notices of
preliminary objection to the Originating summons on similar
grounds to wit: (1) that the 3rd Respondent being a Public
Officer is protected by the Public Officers Protection Act, (2)

that the 1st Respondent having been sworn in as Governor of
Niger State, the action against him is barred by the immunity
clause in section 308 of the 1999 Constitution and (3) that the
present suit not being an election petition challenging the
return of the Respondent as the Governor of Niger State cannot
be maintained since the 1st Respondent has been elected and
sworn into office as Governor of Niger State.
At the hearing, both the Originating Summons and
Notices of Preliminary objection were contemporaneously
argued together. The learned trial judge, in a considered
Judgment, upheld the preliminary objection and struck out the
Originating Summons. Dissatisfied with the stance of the
Learned Trial Court, the Appellant filed Notice of Appeal
containing five grounds on 29th February, 2007. Out of these
five grounds of appeal, the Appellant has formulated three
issues for the determination of this appeal. The issues are:
(a) Whether the Public Officers Protection
Act protect the substitution of the
Appellant with the 1st Respondent in
the light of the peculiar circumstance
of this case.
(b) Whether the 1st Respondent is protected

by the immunity provided in section 308
of the 1999 Constitution from an Action
challenging his purported Election and
assumption of office of the Governor of
Niger State as a PDP candidate.
(c) Whether the learned trial Court had the
Jurisdiction to hear and determine the
Originating summons filed before it.
The 2nd Respondent, in his brief has not formulated any issues
but has adopted the three issues as distilled by the appellant.
The 3rd Respondent has distilled similar issues but couched
differently. They are as follows:
(a) Whether the 3rd Respondent herein is
protected by the Public Officers Act?
(b) Whether the 1st Respondent having been
sworn in as the Executive Governor
of Niger State enjoys Constitutional
immunity against civil and criminal
proceedings?
(c) Whether the Federal High Court has
jurisdiction to hear and determine the
Appellant’s Originating Summons?
The Appellant filed two reply briefs; One in respect of the 1st
Respondent’s brief and second, in respect of the 2nd and 3rd

Respondent’s briefs of argument. I shall determine this appeal
based on the three issues formulated by the Appellant.
On the 1st issue, the learned Senior Counsel for the
appellant submitted that where the injury complained of is a
continuing one, time does not begin to run for the purpose of
application of a limitation law until the cessation of the event
leading to the cause of action relying on the cases of Abiodun
and 11 Ors Vs. Attorney General Federation (2007) 15
N.W.L.R. (Pt. 1057) 359 and CBN and Ors Vs. Okojie (2004)
10 N.W.L.R. (Pt. 882) 488. That the continuing injury in the
instant case is the foreclosure of the Appellant’s right to
participate in the Government of Niger State as the sponsored
candidate of the Peoples Democratic Party. It was a further
opinion of the Learned Senior Counsel for the Appellant that
the injury and or deprivation arising from the infraction of the
Appellant’s guaranteed right as provided by Article 13 of the
African Charter on Human and Peoples Right is of a
continuing nature and was subsisting as at the time of the
Commencement of the suit. Also, that where there is a conflict
between the provisions of a statute such as the Public Officers

Protection Act and the provisions of a statute with international
flavour as the African Charter on Human and People’s Right,
the later will prevail. He cited the case of Abacha Vs.
Fawehimi (2006) 6 N.W.L.R. (Pt. 660) 228, Abiodun Vs.
Attorney General Federation (Supra).
The learned senior counsel further contends that the
Public Officers Protection Act is designed to protect the officer
who acts in good faith and does not apply to acts done in abuse
of office and with no semblance of legal justification placing
reliance on the cases of Nwankwere Vs. Adewunmi (1966) 1
All N.L.R. 119, Lagos City Council Vs. Ogunbiyi (1969) All
N.L.R. 297, Offoboche Vs. Ogoja Local Government (2001)
16 N.W.L.R. (Pt. 739) 458.
Moreover, that the finding and conclusion of the learned
trial judge that the Appellant failed to establish that the 3rd
Respondent acted outside the scope of its duties as far as the
substitution of the 1st Respondent is concerned is in total
disregard of the statutory duty incumbent on the 3rd
Respondent in allowing a political party to nominate another
candidate not later than 60 days before the date of election to

act in strict compliance with sections 34 and 36 of the Electoral
Act. He concluded that where a public officer has been shown
to have acted in total disregard of statutory provisions and not
within any statutory or legal authority, the protection afforded
by the Public Officers Act is unavailable to him. He relied
again on the following cases:- Ibeto Cement Company Ltd Vs.
Attorney General of Federation (2008) I N.W.L.R. (Pt. 1069)
470, CBN Vs. Okojie (2004) 10 N.W.L.R. (Pt. 882) 488 and
Gomes Vs. Punch Nig. Ltd (1999) 5 N.W.L.R. (Pt. 602) 303.
He urged this |Court to resolve this issue in favour of the
Appellant.
It is however the submission of the learned Senior
Counsel for the 1st Respondent on the first issue that the
complaint and cause of action of the Appellant is not a
continuing one as alleged by the Appellant. That what the
Appellant describes as the continuing injury or damage he
suffered is the concomitant effect of the injury or damage. He
cited the following cases to buttress that submission:-
NEPA Vs. Olagunju (2005) 3 N.W.L.R. (Pt. 913) 602, Chief
Ademiba Afolayan Vs. Oba Joshua Ogunrinde and Ors (1990)

1 N.W.L.R. (Pt. 127) 369, Curey Vs. Metropolitan Borough of
Bermondsey (67 J.P. 447) Dr. Olaosebikan Vs. Williams and
Anor (1996) 5 N.W.L.R. (Pt. 449) 437 among others.
On the submission that the 3rd Respondent cannot claim to
be protected by the Public Officers Protection Act in that the
acts done by it were not done in good faith and constitutes acts
in gross abuse of office, the 1st Respondent’s Senior Counsel
submitted that there is no evidence whatsoever in support of
the said submission. That it has not been shown that the 3rd
Respondent acted for its own benefit. Rather, that it acted in
the colour of its office and in execution of its duty relying on
the case of Bala Adedire and 6 Ors Vs. The Caretaker
Committee of Ife Divisional Council and Anor (1963) 1 All
N.L.R. 39 at 49 – 50
Learned Senior Counsel concluded on this issue that all
the arguments by the Appellant in his brief on the merit of the
case are futile and cannot be considered. That the issue is not
whether or not the plaintiff’s case is meritorious. That the real
issue is whether or not the Appellant’s case is now bare and
empty and cannot be pursued having regard to the application

of the Public Officers Protection Act. He cited NEPA Vs.
Olagunju (Supra), Emiator Vs. The Nigeria Army and Ors
(1999) 12 N.W.L.R. (Pt. 631) 362. On the submission that the
African Charter on Human and Peoples Right (Ratification and
Enforcement Act 1990) will override municipal laws, he
argued that where a person fails to follow procedural measures
for the actualisation of his right, he cannot be heard to say that
the African Charter is greater than municipal laws. He urged
the court to resolve this issue against the appellant.
It was also the submission of learned counsel for the 2nd
Respondent on the first issue that section 2 (a) of the Public
Officers Protection Act protects the activities or acts done in
respect of neglect or default in the execution of the duties of
such public officers. That provided they do not carry out any
act outside the usual confine and scope of their functions, they
are fully protected. That one of such functions of the 3rd
Respondent is to receive notice of substitution of candidates by
political parties and to act on same. That, perchance the officer
is negligent or in default by not confirming whether the
substitution was properly done or not by the respective political

parties, such public officer would only incur the wrath of the
law if sued within three months of the occurrence of the act or
default. He submitted that on the instant case, the Appellant
failed to highlight the statutory duty which the public officers
allegedly breached. He referred to the case of Ibrahim – Ohida
Vs. Military Administrator, Kogi State (2000) F.W.L.R. (Pt.
12) 2107.
On the issue that the wrong complained of by the
appellant was a continuing one, he opined that the submission
is erroneous and submitted that it is unimaginable how the
letters of substitution and withdrawal of 5th February, 2007 and
13th February,2007 respectively would have been effected by
the 3rd Respondent had the Appellant’s protest been treated and
accepted. On the cases cited by the Appellant on continuing
injury, he submitted that they are inapplicable because the
Appellant knew about the alleged injury and did nothing
beyond the purported protest letter and that he is caught by the
equitable doctrine of standing by and laches. On the
submission regarding the African Charter on Human and
Peoples Right overriding the Public Officers Act, he argued

that no law which is in conflict with the principles of Equity
can stand.
Learned Counsel submitted finally, that by the fact of
open declaration of support for the 1st Respondent’s
candidature at the Governorship election, and canvassing for
votes in his favour at the campaign rallies organised by the
party subsequent upon his substitution as stated clearly in the
counter affidavit before the lower Court, the Appellant had
clearly waived his right to complain that his substitution was
wrongful. He cited the case of Mkpedem Vs. Udo (2001)
F.W.L.R. (Pt. 66) P. 827. He urged the court to resolve this
issue against the appellant.
The learned senior counsel for the 3rd Respondent made
identical submissions as that of the 1st and 2nd Respondents but
added that the Public Officers Protection Act is not
unconstitutional because it does not deprive a party the right of
access to court but merely regulates that right. Thus the
reference to the African Charter on Human and Peoples Right

is of no consequence. He cited the case of Kolo Vs.e Attorney
General Federation (2003) F.W.L.R. (Pt. 184) 349 at 353. He
also urged this court to resolve this issue against the appellant.
The Appellant had filed two reply briefs which are to a
large extent repetition of arguments already contained in the
main brief. However, they shall be referred to in the course of
this judgment if need be.
In spite of the volume of arguments made in this issue,
one salient question needs to be asked and answered. And that
is whether the Public Officers Protection Act cap 379, Laws of
the Federation of Nigeria 1990 avails the 3rd Respondent in the
circumstance of this case. The 3rd Respondent is the
Independent National Electoral Commission. Section 2 (a) of
the said Act which is in the front burner states:-
“2. Where any action, prosecution, or other
proceeding is commenced against any
person for any act done in pursuance
or 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 such Act, Law, duty or authority,
the following provisions shall have effect -

(a) The action, prosecution, or
proceeding shall not be or be
instituted unless it is commenced
within three months next after the
act, neglect or default complained
of, or in case of a continuance of
damage or injury, within three
months next after the ceasing thereof.”
For purpose of clearity, the word “person” used in the above
section has been legally defined as not limited to natural
persons or human beings only but also admits and includes
artificial persons such as corporate sole, company or body of
persons corporate or incorporate. Thus the 3rd Respondent
INEC is one of such persons as envisaged by the section. See
Mkpedem Vs. Sunday Otong Udo & 4 Ors (2001) F.W.L.R.
(Pt. 66) 827 Offoboche Vs. Ogoja Local Government (2001)
F.W.L.R. (Pt. 68) 1051, Ibrahim Vs. Judicial Service
Commission (1998) 14 N.W.L.R. (Pt. 548) I. It is therefore
without equivocation that the 3rd Respondent is a public officer,
even as non of the parties contended otherwise. The rationale
for this piece of legislation is to protect a public officer against
stale claims and not to shield him from prosecution at all. For

a defendant to avail himself of the protection provided by
section 2 (a) of the Act, he must, while acting as a public
officer, have done something whether by way of action, deed
or neglect in the discharge or execution of his public duties for
which he is sued and in respect of which he may seek
protection under the law as a defense to the plaintiff’s case
against him if the action was not instituted within three months
next after the acts, neglect or defaults complained of. See
Ibrahim Ohida Vs. Military Administrator of Kogi State (2000)
12 N.W.L.R. (Pt. 680) 24, Momoh Vs. Okewale (1977) 6 S.C.
81, Yare Vs. Nunku (1995) 5 N.W.L.R. (Pt. 394) 129.
It must not be mistaken that the Public Officers Protection
Act automatically bars actions against a public officer. No, it
does not. Rather it merely provides that an action may be
statute barred if the action is taken out after the expiration of
three months after the act or neglect. In the instant appeal, did
the 3rd Respondent do or neglect to do anything which would
entitle it to plead protection under the Act? By receiving a
letter substituting the Appellant with the 1st Respondent from
the 2nd Respondent, and acting on the said letter, the 3rd

Respondent, no doubt can be said to have done some act which
would entitle it to the protection afforded by the Act. It should
be noted however that for a public officer to claim the
protection so afforded, he must have acted within the confines
of his office and within the parameters set for him under the
Law. Where a public officer flagrantly disregards the dictates
of his office and goes out on a frolic of his own, he cannot
claim protection under the Act.
In order to determine whether the action against the 3rd
Respondent is statute barred or not there is the need to find out
when the cause of action accrued to the appellant. The phrase
“cause of action” has been defined as:-
“every fact which is material to be proved to entitle
the plaintiff to succeed, every fact which the
Defendant would have a right to traverse. It is the
fact which establishes or gives rise to a right of
action. It is the factual situation, which gives
a person right to judicial relief.”
See Ogbah Vs. Bebde Divisional Union (2001) F.W.L.R. (Pt.
63) 25 at 27.
Where there is in existence an action or omission which
entitles one to sue another for redress in a court of law and

there is in existence a person who can sue and another to be
sued, there is in my opinion the existence of a cause of action
and time begins to run when there is in existence a person who
can sue and another who can be sued and all the facts have
occurred which are material for proof to entitle a plaintiff to the
relief sought. In the instant case, I am of the view that the
cause of action started to run with the letter of substitution
dated 5th February, 2007 and that of withdrawal dated 13th
February, 2007. As at these two dates, the Appellant knew his
right to contest the Governorship election in Niger State had
been forcibly taken away from him and given to the 1st
Respondent and that he had suffered some injury. But what
baffles me is that apart from writing a letter of protest, he chose
to do nothing about it until after the 1st Respondent had been
elected and sworn into office on 29th May, 2007 before he
thought of pursuing that right. Even at that he waited till 7th
November, 2007 in order to activate the machinery of justice to
reclaim his candidature which in my opinion was no longer
available having been used up by the 1st Respondent. On this
issue, the learned trial judge said:-
“There is no gain saying that the course (sic) cause

of action in this case accrued from the letters of
substitution and withdrawal respectively dated 5th
February, 2007 and 13th February, 2007 while the
present suit was filed only on the 7th November, 2007
a period of about eight months. The effect of statute
of limitation is that when a statute of limitation
prescribes a period within which an action must be
initiated, legal proceedings cannot be properly and
willingly instituted after the expiration of the
prescribed period. And it is beyond any peradventure
that the present suit was instituted after three months
of the accrual of the cause of action.”
Learned Counsel for the Appellant had argued extraneously
that the injury suffered by the appellant is an injury of a
continuing nature. The Respondents had however submitted
that the incident which the appellant describes as continuing
cause of the complaint or injury is the concomitant effect of the
damage and/or injury. In his reply brief to the 1st Respondent’s
brief, the learned Senior Counsel to the appellant submitted at
page 2 thereof as follows:-
“The unlawful act of inventing a fictitious and non
existent “withdrawal” in order to deprive the
Appellant of his vested right and the damage
caused thereby has not abated as the Respondents
continue to represent that the Appellant withdrew
as a candidate for the said Gubernatorial Elections.”

Now can it be said that even as at today, because the 1st
Respondent occupies a position over which the Appellant had
acquired a vested right, the injury done to him is still of a
continuing nature which would make his suit instituted at the
Federal High Court not caught by the provisions of the Public
Officers Protection Act? I ask this question because where the
injury complained of is a continuing one, time does not begin
to run for the purpose of the application of a limitation law
until the cessation of the event leading to the cause of action.
In other words “Continue of injury” means the continuance or
repeat of the act which caused the injury. It does not and
cannot be said to mean the concomitant effect of the damage or
injury. In Olaosebikan Vs. Williams (1996) 5 N.W.L.R. (Pt.
449) 437 at 456, Salami, JCA quoting Dickson, J has this to
say:-
“The issue is very well illustrated by the dictum
of Dickson J, in Michael Obiefina Vs. Alexander
Okoye (1961) All N.L.R. 357. At pages 360 and
362 Dickson J, said
Continuance of injury or damage means
Continuance of the legal injury, and not
merely continuance of the injurious

effects of a legal injury. The continuance
of the injurious effects of an accident is
not a continuance of the injury or damage
within the meaning of the Public
Authorities Protection Act 1893: 20
Halsbury (2nd Edition) page 771.
……………………………… With
regard to the Construction of those
words, I am clearly of opinion that
the matter is governed by the
decision of the Court of Appeal as
far back as 1903, in the case of
Curey Vs. Metropolitan Borough of
Bermondsey (67 J. P. 447), confirming
the judgment of Channel J., in that
same case, reported in the same volume
at page 111. Lord Halsbury, L. C. in
giving judgment in the court of Appeal
in that case, affirming the judgment of
channel J, said:-
“It is manifest that ‘continuance of the
injury or damage’ means the continuance
of the act which caused the damage. It
was not unreasonable to provide that, if
there was a continuance of an act causing
damage, the injured person should have a
right to bring an action at any time within
the months of the ceasing of the act
complained of.”

I concur. I have nothing to add.” For me, I agree as that is the
correct interpretation of that section. Thus, the act which
caused the injury to the Appellant was the alleged substitution
of 5th February, 2007. There is no evidence that there was any
other act of substitution after5th February, 2007. Therefore,
the cause of action started to run on 5th February, 2007 when
the act of substitution occurred which also caused the injury to
the Appellant.
Therefore, filing the Originating summons almost nine months
after the cessation of the act complained of clearly offends
section2 (a) of the Public Officers Act Cap. 379 1990. But that
is not all. There are still more hurdles to cross.
One other issue is that the Public Officers Protection Act
is designed to protect the officer who acts in good faith and
does not apply to acts done in abuse of office. And abuse of
office is the use of power to achieve ends other than those for
which power was granted. If the public officer acts
maliciously, the Act will certainly not avail him. See Lagos
City Council Vs. Ogunbiyi (1969) All N.L.R. 297, Offoboche
Vs. Ogoja Local Government (Supra). Whether or not the

public officer abused his office or acted maliciously, is a
question of fact for which credible evidence must be led to
prove same. The findings and conclusion of the Learned Trial
Judge on this issue is as follows:-
“In any event the onus is on the Plaintiff
who assert that the 3rd defendant acted
outside the colours of its duty in the
said substitution of candidate to so
prove. In the instant, the plaintiff failed
to establish that the 3rd defendant acted
outside the scope of its duties as far as
the substitution of the 1st defendant is
concerned.”
As it is, there is no appeal against this finding of the learned
trial judge. So, it stands. As was pointed out by the learned
Senior Counsel for the 1st Respondent and I agree with him,
there is no shred or scintilla of evidence by the Appellant
before the trial court that the 3rd Respondent acted beyond the
scope of his office or maliciously or even with no semblance of
legal justification. The arguments made by P.I.N. Ikweto,
SAN in the Appellant’s brief, and in his oral submission should
have made so much difference, if not all the difference in this
appeal, if they emanated from the head and mouth of the

Appellant. Learned Senior Counsel tried to show in his brief
how the 3rd Respondent acted without legal justification. These
are facts which ought to have been laid before the trial court. It
is not the place of counsel to give evidence in the guise of
making an address. See Ugwu Vs. Ararume (2007) 12
N.W.L.R. (Pt. 1048) 367 at 445 paragraph E-F. In the
circumstance of the case, I am of the view that the learned trial
judge was right to hold that this case was statute barred.
Where an action is statute barred as in the instant case, a
plaintiff who might have had a cause of action loses the right to
enforce the cause of action by judicial process because the
period of the time laid down by the limitation law for
instituting such an action has elapsed. See Emiator Vs. The
Nigerian Army & Ors (Supra).
The issue in this appeal is not whether or not the
Appellant as plaintiff has a good case or even whether or not
he has a cause of action. I think the real issue is, whether the
Appellant’s case has now become bare and empty and can no
longer be pursued having regard to the application of the
Public Officer’s Protection Act.

The reference by the learned senior counsel for the
Appellant to the African Charter on human and Peoples Right,
to me, is of no moment. A statute like the Limitation Act
which prescribes the procedure for invoking the exercise of
judicial powers cannot be said to be in conflict with the African
Charter on Human and Peoples Right. There is nothing in
section 2 (a) of the Limitation Act which robs the Appellant of
his right as entrenched in the charter. At least the Limitation
Act has not been held to be unconstitutional. See Kolo Vs.
Attorney General Federation (2003) F.W.L.R. (Pt. 184) 349.
Where any statute is consistent with the organic law of the
land, the Constitution, the reference to the African Charter on
Human and Peoples Right is an attempt to elevate the charter
above our Constitution. This can not be and the court will not
assist the appellant to do so. Being a product of an
International Treaty or having International flavour, it could be
said that it has an edge over our local enactments but certainly,
not the Constitution of Nigeria. Therefore, any law which is
not inconsistent with our Constitution cannot be struck down
on the flimsy reason that it offends against the charter. See
Abacha Vs. Fawehinmi (2000) 6 N.W.L.R. (Pt. 660) 228.

The Appellant may have had a good cause against the
Respondents but, honestly, he is not only caught up by the
limitation period contained in section 2 (a) of the Public
Officers Protection Act, but also by the Equitable doctrine of
standing by the laches. Quite unfortunate.
As can be glaringly seen, I have carefully avoided the
lengthy arguments on the merit of the case. This is so because
there is no issue on the merit of the case before us. That is to
say, the issue as to whether the Appellant was properly
substituted or not, is not before us. May be that will be for
another day. The scenario of the present appeal is clearly
distinguishable from the judgment referred to in the cases of
Amaechi Vs. INEC (Supra), Ugwu Vs. Ararume (Supra) in
view of the conduct of the Appellant himself. In the two cases
above, Amaechi and Ararume, the aggrieved parties
immediately sought relief in court before the governorship
election were conducted on the 14th April, 2007 but in the
instant case, the appellant did not challenge his substitution in
court until the election was concluded and the 1st Respondent
sworn into office and waited for about nine months before so

doing. As I said earlier, all the arguments on the merit of the
case are hereby discountenanced as they are of no moment. In
the circumstance, this issue is hereby resolved against the
Appellant.
The second issue in this appeal is whether the 1st
Respondent is protected by the immunity provided in section
308 of the 1999 Constitution from an action challenging his
election and assumption of office of the Governor of Niger
State as a PDP candidate. Whereas the Appellant’s Senior
Counsel submits that the immunity does not avail the 1st
Respondent, the Learned Senior Counsel and Counsel for all
the Respondents think otherwise. There is no doubt that the
action which gave birth to this appeal was instituted by the
Appellant to challenge the process through which the 1st
Respondent became the PDP candidate for the Governorship
Election in Niger State, his assumption of office of Governor
of Niger State including his right to continue to remain in the
office as such. I think this is a convenient point to ask this
question - Is this suit a civil matter, pre-election matter or an
election matter? The answer to this question will certainly

determine whether section 308 of the 1999 Constitution which
confers immunity on the 1st Respondent applies. Let me say
here that this suit could have qualified as a pre-election matter
if it had not gone a step further to question the return of the 1st
Respondent as the duly elected Governor, and also praying the
Court not only to nullify the said election, but to declare him
(the Appellant) as the duly elected Governor and directing that
he be sworn in as such. I think it is a civil matter
masquerading as an election matter. Or is it the case of “ the
body of Esau but the voice of Jacob?” If the matter is an
election matter as the Appellant would want us to believe, then
it ought not to have been instituted at the Federal High Court as
in this case. I say so because of the provision in section 285
(2) of the Constitution of the Federal Republic of Nigeria,
1999. The section states:-
“285 (2) - There shall be established in each
state of the Federation one or more election
tribunals to be known as the Governorship
and Legislative Houses Election Tribunals
which shall, to the exclusion of any other
court or tribunal have original
jurisdiction to hear and determine petitions
as to whether any person has been validly

elected to the office of Governor or Deputy
Governor or as a member of any legislative
house” (italics mine for emphasis)
Again, Section 140 (1) of the Electoral Act, 2006 provides that:
“140 (1) No election and return at an election
under this Act shall be questioned in any
matter other than by a petition complaining
of an undue election or undue return (in this
Act referred to as an “election petition”)
presented to the competent tribunal or court
in accordance with the provisions of the
Constitution or of this Act, and in which
the person elected or returned is joined
as a party”
From both the Constitutional and Statutory provisions cited
above, it is crystal clear that the Appellant, questioning the
undue return of the 1st Respondent ought to have ventilated his
claim at the Election Petition Tribunal. Definitely, not at the
Federal High Court as in this case. And that could have been
by a petition. Definitely, not through an Originating
Summons. If the Appellant had filed the first leg of his
complaint i.e. relating to his substitution at the High Court or
Federal High Court before the 1st Respondent was elected and
sworn in as Governor, it seems to me, that, all things being

equal, he would have succeeded in view of the Supreme
Court’s decision in Amachi Vs. INEC (Supra). But where as in
the instant case the Appellant sought to remove the Governor
by an originating summons filed before the Federal High
Court, it seems to me that the provision of section 308 of the
Constitution protects the Governor from such a civil
proceedings. This is so as I have held that this suit is not an
election petition but a pure civil matter at the time it was
instituted. See Ejura Vs. Idris & 2Ors (2006) 4 N.W.L.R. (Pt.
971) 538. I need to say here that election petitions are special
proceedings completely divorced and separated from civil
proceedings and consequently, a Governor is not immune from
legal proceedings against him in respect of an election petition
see AD Vs. Fayose (2004) 8 N.W.L.R. (Pt. 876) 639, Obih Vs.
Mbakwe(1984) 1 S.C.N.L.R.192. The clear and unambiguous
provision of section 308 of 1999 Constitution provides for an
absolute bar to civil and criminal suits against Governors while
in office. Where there are such suits, they should not be
dismissed but struck out pending when they vacate office. As
was rightly held by the Apex Court in Rt Hon. Rotimi
Chubuike Ameachi Vs. INEC & 2Ors ( 2007) 9 N.W.L.R. (Pt.

1040) 504, section 308 of the Constitution is not designed to
deny a citizen of this country his right of access to the Court.
Rather, it is a provision put in place to enable a Governor,
while in office, to conduct the affairs of governance free from
hindrance, embarrassment and difficulty which may arise if he
is being constantly pursued and harassed with court processes
of a civil or criminal nature while in office. The Supreme
Court further held in that case that to hold that section 308 can
be invoked in a matter relating to the eligibility for a political
office where the tenure of such office has been set out in the
Constitution will translate into denying to a plaintiff his right
of access to the Court. Moreover, that it is only in a case
where the deferment of the plaintiff’s right of action is not
likely to destroy the Res in the suit that section 308 can be
invoked.
The sum total on this issue is that section 308 of the
Constitution protects sitting Governors from civil and criminal
prosecutions while in office. But that where the action is an
election matter or an election related matter which has to do
with the tenure of the office for which the Res would have been

depleted at the end of the tenure, section 308 cannot be
invoked as that would create injustice for the plaintiff. I do
not think the section was meant to put anybody at any
disadvantaged position. In the instant case, had the Appellant
filed his suit seeking to question the election of the 1st
Respondent at an election petition Tribunal via a petition,
section 308 of the Constitution would not avail the 1st
Respondent. Had he also filed an action at the Federal or State
High Court challenging his substitution before the 1st
Respondent was elected Governor, section 308 would not avail
the 1st Respondent even if the suit has to be heard while he is in
office as Governor. That was what happened in the much
celebrated case of Amaechi Vs. INEC (Supra). The Appellant
in this case was a bit indolent about his right. A seemingly
pre-election matter, filed at a post election period with the
semblance of an election matter by an Originating summons,
appears to be a civil matter for which it is caught by section
308 of the Constitution. This attempt to remove an elected
Governor via an Originating Summons six months after the
Governor was sworn into office, is to my mind a civil matter
for which the Governor enjoys immunity as per section 308 of

the Constitution. I therefore resolve this issue against the
appellant.
Issue No. 3 seems to have been taken care of while I
resolved the 2nd issue. But for avoidance of doubt, let me
briefly state that in the process of electioneering, all pre –
election grievances are to be ventilated either at the Federal
High Court or State High Court. After the elections or call it
post election period, all grievances should, as provided in
section 285 of the Constitution, be filed by way of petition at
an election Petition Tribunal. The Appellant relies heavily on
Amaechi’s case (Supra). But the facts in Amaechi’s case are
not in all fours with the present case. In Amaechi’s case, the
suit was filed at the Federal High Court before the election
took place and when the Electoral body, in spite of the
pendency of the said case, went ahead to conduct the election
and declared Omehia governor, this is what the Supreme Court
said at page 199 of the report paragraph C – F on the issue:-
“It is common ground that the 2nd Respondent was
declared as Governor of River State notwithstanding
the pendency of law suits relative to who should
occupy that position. The lawful occupation of the
office of Governor of Rivers State is the subject

matter of this appeal. The right to the subject
matter was already in Court for adjudication
before the 1st Respondent went ahead to conduct
the election of 14th April, 2007 and eventually
swore in the 2nd Respondent as the Governor of
the State. The doctrine of lis pendes finds
expression in the assertion that it prevents
any transfer of any right or the taking of any
steps capable of foisting a state of helplessness
and/or hopelessness on the parties or the Court
during the pendency in Court of an action and
even after. By that doctrine, the law does not
allow to litigant parties or give to them, during
the currency of the litigation involving them, the
rights in it so as to prejudice any of the litigating
parties. The doctrine negates and disallows any
transfer of rights or interest in any subject
matter. The well – known maxim is “pendente
lite mihil innovetur” meaning : during
Litigation, nothing new should be introduced.
See Dan - Jumbo Vs. Dan – Jumbo (1999)
11 N.W.L.R. (Pt. 627) 445. Going by the facts
of this case as set out above, it is my humble
view that the doctrine applies.”
It is to be reiterated that this Court and every other Court for
that matter has never taken lightly the issue of lis pendes and
will not hesitate to exercise its coercive jurisdiction to return
the parties to their status quo and that is what happened in

Amaechi’s case (Supra). This is not the case in the instant suit
which gave birth to this appeal. The suit was not pending at
the time the 1st Respondent was elected Governor. So the case
of Amaechi does not apply in this case. Each case has its own
peculiar facts as no two cases are exactly the same.
Ordinarily, the Federal High Court would have had
jurisdiction to hear this matter if it was filed before the election
of the 1st Respondent on 14th April, 2007. Again, the inclusion
of the 3rd Respondent in this suit made it statute barred having
not been commenced within three months of the accrual of the
cause of action. Thus at the time the suit was filed in
November, 2007, the Federal High Court had no jurisdiction to
hear the case, moreso, as the suit has the flavour of an election
petition which ought to have been ventilated at the Election
Petition Tribunal. There, the appellant should have pleaded
valid nomination but unlawfully excluded by virtue of section
145 (1) (d) of the Electoral Act, 2006. I hold a well considered
view that the Federal High Court lacked the jurisdiction to
entertain this suit as is presently constituted. Accordingly, this
issue is resolved against the Appellant.

On the whole, I find no merit in this appeal and is hereby
dismissed. I affirm the decision of the Federal High Court,
Kaduna which struck out the Plaintiff/Appellant’s action. I
award costs of N30, 000.00 to the 1st Respondent to be paid by
the Appellant.