HON. ABDULLAHI I. GARBA v. BARR. ABDULMALIK MUHAMMED & ORS
(2019)LCN/13056(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of April, 2019
CA/A/145/2019
RATIO
PRE-ELECTION MATTERS: PERIOD WITHIN WHICH THEY ARE TO BE FILED
In resolving these issues it is pertinent for me here to reproduce Section 285 (9) of the CFRN (4th Alteration Act 2017) for ease of reference, it provides thus;
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.” It is trite law that in determining of what the cause of action is in a suit, the court must look only at the claims of the plaintiff. See OBIKA VS. OBIKA 2018 LPELR-43965.PER ABDU ABOKI, J.C.A.
ELECTION RELATES MATTERS ARE SUI GENERIS
Election related matters are sui generis. They are unlike ordinary civil proceedings without a time bar. See: HASSAN VS. ALIYU (2010) ALL FWLR (PT. 539) 1007 AT 1046.PER ABDU ABOKI, J.C.A.
PRE-ELECTION MATTERS: WHEN DOES CAUSE OF ACTION ARISE IN PRE ELECTION MATTERS
By virtue of the provisions of Section 285 (9) of the Constitution 4th Alteration Act, 2017, the cause of action in every pre-election matter arises from date of the occurrence of action complained of by the Plaintiff in his suit.
This Court in the case of DAVID UMAR VS. ALL PROGRESSIVES CONGRESS (APC) & 2 ORS (Appeal No. CA/A/126/2019 Unreported delivered on 8th April, 2019) PER, EMMANUEL A. AGIM, JCA held thus;
“The date a party became aware of an event or the decision that he challenges in a Suit is not the determinant of the date of actual cause of action or the date from which the time prescribed for bringing such action to Court can be reckoned unless the law or statute that prescribes such time limit stipulates that the time shall start running from the date the party became aware of the event or decision. There is nothing in Section 285 (9) of the 1999 Constitution that provides that 14 days period for filing a suit shall start running from the date the party becomes aware of the event or decision.”PER ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
HON. ABDULLAHI I. GARBA Appellant(s)
AND
1. BARR. ABDULMALIK MUHAMMED
(a.k.a Abdulmalik Daji)
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the Judgment of the Federal High Court, sitting at Minna, delivered on 14th February, 2019 by Hon. Justice Aminu Baffa Atiyu in Suit No. FCT/MN/CS/49/18.
The Appellant herein was the 3rd Defendant at the trial Court while the 1st Respondent was the claimant/Plaintiff. The 2nd and 3rd Respondents were the 1st and 2nd Defendants respectively.
The Brief summary of the fact of this case that lead to this appeal was that, by an originating summons filed on the 31st October, 2018 the 1st Respondent as Plaintiff approached the trial Court for a determination of the questions for determination as can be found at page 2 of the record.
Upon the determination of the said questions, the Plaintiff prays the Court to grant the reliefs as can be found at pages 2 to 4 of the record of appeal.
The originating summons is supported by an affidavit of 27 paragraphs and exhibits attached. The Plaintiff/1st Respondent’s case is that he is a card carrying member of the 1st Defendant. That he was contestant in the primary election organized by the 1st Defendant on the
1
4th and 5th October, 2018 for the House of Representative for Kontagora/Mariga/Mashegu/Wushishi Federal Constituency of Niger state. That he purchased the expression of interest and nomination forms and was screen and cleared to contest the primary election. That the primary election was conducted, result collated and winner emerged and was declared. That he was declared a winner with 21, 864 votes. That following his emergence as the candidate of the 1st Defendant, he duly completed INEC form EC4B (v) and INEC CF001. That the 3rd Defendant who participated and lost in the primary election with the connivance of the 1st Defendant started making moves to replace and substitute him (Plaintiff) as the 1st Defendant’s candidate. That on becoming aware, he (Plaintiff) wrote a complain on 15th October, 2018 to the National Secretariat of the Party. That on 26th October, 2018 the he (Plaintiff) made enquiries at the INEC Headquarters, Abuja and learnt that the name of the 3rd Defendant was displayed amongst the list of candidates which the 1st Defendant proposes to sponsor.
Consequence upon that action of the 1st Respondent of replacing the name of the
2
Plaintiff/3rd Respondent with that of the 3rd Defendant/Appellant, the Plaintiff/3rd Respondent approached the trial Court seeking for a determination of the questions as contained in the face of the originating summons. See pages 2 of vol. 1 of the record of appeal.
The trial Court in its judgment hold that the Plaintiff’s case succeeds and the claims in the originating summons in paragraphs 1 b, c, d, e, f, g, h, I and k are granted.
Dissatisfied with the said judgment of the trial Court, the Appellant who was the 3rd Defendant at the trial Court appeal to this Court vides his notice of appeal dated and filed 26/2/2019. The said notice appeal which appears on pages 46-62 of the supplementary record of appeal contains 8 grounds of appeal.
The record of appeal was compiled and transmitted to the Court on 25th February, 2019, while the supplementary record was filed on 27/02/2019. The briefs of argument were subsequently filed and exchanged by the parties in accordance with the rules of Court. The Appellants’ brief of argument is dated 6th day of March, 2019 and filed on the same date. The Appellants also filed Appellants’ Reply Brief dated and
3
filed 25th March, 2019. The 1st Respondent’s Brief of Argument on the other hand, is dated and filed on the 8th March, 2019. The 3rd Respondent’s brief of argument dated 25th March, 2019 was filed on 27/3/2019.
On 28th March, 2019, the appeal was heard before the Court. The Appellants’ Counsel adopted the Appellants’ brief of argument as well as the Reply Brief. He urged the Court to allow the appeal. The 1st Respondent’s Counsel on its part adopted the 1st Respondent’s brief of argument and urged the Court to dismiss the appeal for lacking in merit. The 3rd Respondent’s counsel on their part leave the matter at the discretion of the Court and promise to abide by whatever decision the Court arrived at in this appeal.
The Appellants from their 8 grounds of appeal distilled three issues for determination as follows:
1. Whether having regard to the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration. No. 21) Act, 2017 and the facts contained in the Originating Summons filed on the apt of October, 2018, more particularly the letter dated 15th October, 2018
4
attached as Exhibit M to the Affidavit in support thereof, the trial Judge rightly assumed jurisdiction over the reliefs sought in the Originating Summons? Grounds 1 and 2.
2. Whether the trial Court properly assumed jurisdiction over the reliefs in the Originating Summons when it proceeded to determine same rather than direct the parties to file pleadings, notwithstanding the fact that the depositions relied upon by the 1st Respondent in the Originating Summons are self-contradictory and the affidavits of the parties are seriously in conflict; bordering on forgery and falsification of the results of the Primary Election? Ground 3.
3. Whether having regard to the Originating Summons filed by the 1st Respondent on the 31st of October, 2018, the affidavits in support and the documents attached thereto, the learned trial Judge properly evaluated the Affidavit and documentary evidence presented before the Court to justify the conclusion that, the 2nd Respondent (APC) conducted Primary Election in Mariga Local Government Area for the election of its candidate to contest for the office of Member Representing Kontagora/Mariga/Mashegu/Wushishi Federal
5
Constituency and thereafter proceeded to grant the declaratory and injunctive reliefs sought by the 1st Respondent in the Originating Summons Grounds 4, 5,6, 7 and 8.
The 3rd Respondent’s counsel on their part also distilled three issues for determination as follows;
1. Is the instant Suit caught up by the limitation period of fourteen (14) days prescribed by Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No. 21) Act, 2017 (henceforth, “the Fourth Alteration Act”)? (Distilled from Grounds 1 and 2 of the Notice of Appeal)
2. Did the learned trial Court properly assume jurisdiction to hear and determine this Suit under the Originating Summons procedure? (Ground 3 of the Notice of Appeal).
3. Did the learned trial Court properly evaluate and accord probative value to the evidence adduced by the parties before granting the reliefs sought in the Originating Summons? (Grounds 4, 5, 6, 7 and 8 of the Notice of Appeal).
The 3rd Respondent on its part adopted the three issues as distilled by the Appellant.
?
I will determine this appeal on the basis of the three issues raised in the
6
Appellant’s brief of argument.
ISSUE ONE
The learned counsel for the Appellant submitted that the 1st Respondent as Plaintiff at the trial Court initiated this action vides an originating summons filed on 31/10/2018. By law the action being a pre-election matter must be commenced or initiated within 14 days as prescribed by Section 285 (9) of the 1999 Constitution of Nigeria 4th Alteration Act, 2017.
He submitted that the question of jurisdiction is fundamental to any judicial proceeding, and that it can be raised by any party, even suo motu by the Court. He referred to the Court to the cases of;
PETROJESSICA ENTERPRISES LTD VS. LEVENTIS TECHNICAL CO. LTD (1992) 5 NWLR (PT. 244) PG. 675.
OLOBA VS. AKEREJA (1988) 2 NSCC PG 120.
NNPC VS. ORHIOWASELE (2013) NWLR (PT. 1371) PG 211.
He contended that in determining the issue of jurisdiction, the relevant material for consideration is the originating process. He referred the Court to the cases of;
DOPAH & ORS VS. REG’D TRUSTEES OF UMCN (2016) LPELR-26055.
PDP VS. ORANZI (2018) 17 NWLR PT. 1618 PG 245.
Learned counsel for the Appellant contended that in
7
dismissing the preliminary objection of the Appellant, the trial Court failed to consider and properly evaluate the entire deposition in the affidavit in support of the originating summons filed by the Plaintiff/1st Respondent. He referred the Court to paragraphs 20, 21 of the affidavit in support of the originating summons and Exhibit M attached thereto as can be found at pages 123-124 of vol. 1 of the record of appeal.
He argued that from the averments in the said paragraphs 20, 21 of the affidavit in support of the originating summons and Exhibit M attached thereto, the 1st Respondent in unequivocal terms acknowledged knowing about the alleged connivance between the Appellant and the 2nd Respondent to replace or substitutes his name for the name of the Appellant.
He maintained that as at the 15/10/2018. The 1st Respondent, who participated in the primaries held on 4/10/2018, had become aware of the alleged event or action adverse to his interest. Put it differently, as at the 15th day of October, 2018, the 1st Respondent’s right to invoke the jurisdiction of the Court under Section 87 (9) of the Electoral Act, 2010 had accrued.
He contended
8
that, the 1st Respondent who already knew of the replacement and substitution of his name, rather than institute an action against that event or action, decided to embark on an enquiry at the ‘NEC’S headquarters on the 26th October, 2018, seven days after he had knowledge that his name was replaced.
Learned counsel for the Appellant submitted that the trial judge in his consideration of this ground of preliminary objection did not acknowledged Exhibit M as part of the document attached to the originating summons. The trial Court completely ignored the document, which is an admission by the 1st Respondent of the alleged conduct of the Appellant and the 2nd Respondent, adverse to his interest. He referred the Court to the case of JAURO & ANOR VS. DANMARAYA (2016) LPELR-40328.
He contended that the trial Court in its judgment merely isolated a few paragraphs of the supporting affidavit and decided to act on paragraph 24 thereof, to hold that the Plaintiff’s cause of action arose on the 26th October, 2018.
He maintained that the finding of the trial Court is perverse and cannot be supported by the evidence placed before the
9
Court in the originating processes.
He argued that by the 31st of October, 2018 when the 1st Respondent filed the originating summons, the action was instituted outside the 14 days period allowed by the Constitution. He urged the Court to hold that the Plaintiff/1st Respondent suit is statute barred and the Court ought not to assume jurisdiction over the originating summons.
Learned counsel for the Appellant further submitted that from all the affidavits filed at the trial Court by the parties to this suit to support their contending claims, the issues that arose from the several affidavits of the parties are controversial on material issues in dispute between the parties as to necessitate the hearing of the suit on pleadings.
He maintained that, in view of the fact that the affidavits of the parties are in conflict, it was improper for the trial Court to have entertained the matter under the originating summons procedure. He referred the Court to the cases of;
OKECHUKWU VS. INEC & 25 ORS (2014) 17 NWLR (PT. 1436) PG 255.
WIKE VS. PETERSIDE (NO. 2) & 3 ORS (2016) 1-2 SC (PT.1) PG 37 AT 123.
AWOLAJA & ANOR VS. BOLAGUN
10
(2016) LPELR-26055.
ATAGO VS. NWUCHE & 2 ORS (2012) 12 SC (PT.II) PG 107.
OLLEY VS. HON. TUNJI & ORS (2013) 4-5 SC (PT. 1) PG 1.
On the whole, he urged the Court on the strength of the above mentioned judicial decision of this Court and the apex Court to resolve this issue also in favour of the Appellant.
In response, learned counsel for the 1st Respondent submitted on behalf of the 1st Respondent that, the Appellant’s argument on issue one is misconceived and not supported by the pleadings and evidence on record.
He maintained that there is nowhere in the 1st Respondent’s affidavit in support of the originating summons and the exhibits annexed thereto where the 1st Respondent claimed or asserted that the act of replacing and substituting him had already taken place and was concluded on or prior to 15 October, 2018. He referred the Court to the cases of; ADUA VS. ESSIEN (2010) 14 NWLR (PT. 1213) 141 AT 167A. KWASHI VS. PUSMUT (2010) 1 NWLR (PT. 1176) 518 AT 528.
He submitted that by its wording Exhibit M was a complaint by the 1st Respondent requesting the APC to do the right thing and ensure that the 1st Respondent’s
11
name remained as the rightful winner of the primaries. He referred the Court to the case of AKAIGHE VS. IDAMA (1964) NSCC 237 AT 241.
He contended that the records show that at the time of making the complaints in Exhibit M on 15 October, 2018, the 1st Respondent was not sure of the final decision of the 2nd Respondent on the matter.
He maintained that the cause of action will accrue when the name of loser in the primary election is submitted and published by INEC. The Appellant could not therefore, have expected the 1st Respondent to have file his suit prior to 26 October, 2018.
Learned counsel for the 1st Respondent submitted that the Appellant needs to be reminded that the determination of the cause of action in a case is not limited to a singular or isolated fact pleaded by the Plaintiff. He referred the Court to the cases of;
EGBE VS. ADEFARASIN (1987) 1SC 1AT 14-15.
MULIMA VS. USMAN (2014) 16 NWLR (PT. 1432) PG 160 AT 198.
DADA VS. SIKUADE (2014) 17 NWLR (PT. 1435) 72 AT 116.
He maintained that contrary to the Appellant’s conjectures, the determination of the cause of action in the instant case involves not only the
12
facts in paragraphs 20-21 of the affidavit in support of the origination summons. It involves a combination of facts and or different facts contained in the affidavit in support of the originating summons. He referred the Court to the case of AIGORO VS. COMM. L & H, KWARA STATE (2012) 11 NWLR (PT. 1310) PG 111 AT 129A.
He insisted that it was on 26 October, 2018 that the complaints in Exhibit M accrued and became complete. He referred the Court to the case of OWIE VS. IGHIWI (2005) 5 NWLR (PT.917) PG 184.
He urged the Court to discountenanced the Appellant’s argument to the effect that Exhibit M constitutes an admission against interest. He referred the Court to the cases of;
ORJI VS. DORJI ILES MILLS & ORS (2009) 12 SC (PT. III) PG 73 AT 105.
OKAI II VS. AYIKA II (1946) 12 WACA 31 AT 33.
UBA PLC VS. IBACHEM LTD (2014) 6 NWLR (PT. 1402) 125 AT 154-155.
ADUA VS. ESSIEN (SUPRA)
INAKOJU VS. ADELEKE (2007) 4 NWLR PT. 1025 423 AT 588-589.
APGA VS. ANYANWU NO. 2 (2014) 2 SC (PT.1 1) AT 37.
On the issue of the alleged conflicts in the affidavits filed at the trial Court by all the parties, learned counsel for
13
the 1st Respondent submitted that all the authorities cited by the Appellant remain good law, but they are however, not applicable to the peculiar facts and circumstances of the instant case.
He argued that it is too late in the day for Appellant to cry or complain against the procedure through which the instant suit was commenced and determined, as none of the Defendants in this suit, including the Appellant, canvassed or challenged the originating procedure which this suit commenced. Rather, the Appellant fully participated in the proceedings. He referred the Court to the cases of;
NAGOGO VS. CPC (2013) 2 NWLR (PT. 1339) 448 AT 472.
ALFA VS. ATTAI (2017) LPELR-42579 SC.
UGWUEGEDE VS. ASADU (2018) LPELR-43717 SC.
He urged the Court to uphold that having not filed a distinct motion challenging the procedure for commencement of the suit by originating summons and pray the Court to order pleadings the Appellant is now deemed to have waived his right to complain of the irregular procedure, if any.
In the unlikely event that the Court holds that this issue is competent for its determination, learned counsel for the 1st Respondent
14
submitted that, it is trite that whether a proceeding is contentious or not is not determined by the fact that the other side has filed a counter affidavit in opposition to the originating summons. It is also not determined by the fact that the other side has generated and raised issues in his counter affidavit which have no bearing with the main issues for determination in the case. He referred the Court to the cases of;
OSSAI VS. WAKWAH (2006) 4 NWLR PT.869 PG 208 AT 229.
SCS CO. VS. COUNCIL, OAU, ILE – IFE (2011) 15 NWLR PT. 1269 193.
He contended that throughout the length and breadth of his argument, the Appellant fell short of showing or demonstrating any substantial conflict arising from the facts deposed to in the affidavit in support of the originating summons. He urged the Court to deem the allegation of crime raised in the Appellant’s affidavit to warrant calling of oral evidence as having been abandoned. He referred the Court to the cases of;
OKADA AIRLINES LTD VS. FAAN (2014) LPELR-23342.
NWOSU VS. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT. 135) PG 688.
15
EIMSKIP LTD VS. EXQUISITE IND. NIG. LTD (2003) 4 NWLR (PT. 809) PG. 88.
He contended that the case of ATAGO VS. NWUCHE (SUPRA) cited by the Appellant does not avail him in the circumstances of this case. He referred the Court to the case of UBA VS. GMBH (1989) 3 NWLR (PT. 110) PG 374 AT 402.
He insisted that the Appellant’s contentions on this issue is well misconceived and without merit. He urged the Court to resolve in favour of the 1st Respondent.
The 3rd Respondent counsel on their part submitted that the nature of this case deals with the nomination of candidates. He referred the Court to Sections 87 (1) & 87 (4) (c) (iii) and 97 (10) of the Electoral Act, 2010.
He maintained that having availed this Court with the report of the primaries in Kontagora/Mariga/Mashegu/Wushishi Federal Constituency of Niger state and submitted its views on the state of the law on same; the 3rd Respondent shall abide by whatever decision the Court arrived at. He referred the Court to the cases of;
HOPE UZODINMA VS. OSITA IZUNASO (2011) 17 NWLR (PT. 1275) PG 30 AT 101.
AG FEDERATION & ORS VS. ALH. ATIKU ABUBAKAR & ORS
16
32 NSCQR 1 AT 174-175.
In their reply to the 1st Respondent’s brief of argument, learned counsel for the Appellant submitted that the cases of FOLORUNSHO VS. ADEYEMI (1975) 1 NMLR 128 AT 132 & KIMDEY VS. GOV. OF GONGOLA STATE (1988) 2 NWLR (PT. 77) PG 445 cited by the 1st Respondent were cited out of con.
He contended that in a situation where a finding made by the trial Court is not supported by the evidence on record, this Court can exercise its powers of reviewing the facts and draw the appropriate inferences from the proven facts. He referred the Court to the case of TSOKWA MOTORS NIG. LTD VS. UBN LTD (1996) 9 NWLR (PT. 471) PG 129 AT 145.
He insisted that the omission by the trial Court to consider Exhibit M dated 15 October, 2018 was perverse.
In resolving these issues it is pertinent for me here to reproduce Section 285 (9) of the CFRN (4th Alteration Act 2017) for ease of reference, it provides thus;
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the
17
suit.” It is trite law that in determining of what the cause of action is in a suit, the court must look only at the claims of the plaintiff. See OBIKA VS. OBIKA 2018 LPELR-43965.
The instant case borders on pre-election matter and thus, strict adherence to the provision of Section 285 (9) of the Constitution must be made. A careful perusal of the provision of Section 285 (9), it can be said that cause of action must arise from the date of the occurrence of the event, decision or action complained of in the suit.
The Plaintiff’s complained as can be seen from his suit filed at the trial Court is the replacement and or substitution of his name. The Appellant at paragraphs 20 and 21 of the affidavit in support of his originating summons stated thus;
“20. Notwithstanding that the 3rd Defendant (Hon. Abdullahi Garba) participated in the APC primary election aforesaid but lost, he, with the connivance of the Pt Defendant, started making subterranean moves to replace and or substitute his name for my name as the APC Candidate for our Federal Constituency, Kontagora/Manga/Mashegu/Wushishi.
21. On becoming aware of the sinister moves by the
18
1st and 3rd dependents, I petitioned the national chairman of the 1st Defendant vide complaint dated 15th October, 2018 which was duly received at the national secretariat of the party (APC).
Hereto annexed and marked as Exhibit M is a copy of the letter dated 15th October, 2018 which was received by the 1st Defendant at the national secretariat of the party (APC).”
I do not agree with the Learned counsel for the 1st respondent that there is nowhere in the 1st Respondent’s exhibits annexed to the affidavit in support of the originating summons where the 1st Respondent claimed that the act of replacing and substituting him had taken place. Here it is pertinent for me to reproduce Exhibit M dated 15th October, 2018 for ease of reference.
The said letter reads thus;
15th Oct 2018
The National Chairman,
All Progressive Congress, Wuse II-Abuja
Dear Sir,
COMPLAINT IN RESPECT OF PRIMARY ELECTIONS HELD ON 4TH OCTOBER, 2018 IN KONTAGORA/MARIGA/MASHEGU/WUSHISHI FEDERAL CONSTITUENCY OF NIGER STATE.
Please refer to the above captioned subject matter.
I Hon. M. Abdulmalik Sarkin Dail participated in the direct
19
primaries held in my constituency of Kontagora/Mariga/Mashegu/ Wushishi Federal Constituency of Niger State. Where I purchased the APC Nomination form in accordance with our party’s guideline for the conduct of primary election for which my state Niger stated adopted direct primaries giving a level playing ground to all card carrying members of our dear party. After a kin contest, I emerged as the winner of the primaries with a very wide and clear margin, and consequently was returned the winner by the party primary election committee. Thereupon, I was duly given party summary result sheet and local government result sheet respectively which qualified me to be issued with INEC Affidavit CF001 and nomination form EC4V(v), as normally given to anybody that emerged winner of primaries which I filled-out. My name was later submitted to our party’s national working committee as legal and bonafIed flag bearer of the party, to contest for the seat in the House of Representatives representing Kontagora/Manga/Illashegu/Wushishi Federal Constituency of Niger state.
Given what I stated above, I swung to action by continuing mobilizing my people and putting all
20
things in place for my campaign and eventual victory in the 2019 general election. However, to my greatest dismay my name was rep/aced and substituted with that of Hon. Abdullahi Idris. Garba the incumbent member representing same constituency, on the grounds of automatic ticket which I found unconstitutional.
The atmosphere IS getting momentum and quite charged, I strived hard to calm the constituents down as they were so aggrieved. Hence I write this complaint to your good office, as a good son of the soil and a true believer of the parts Constitution with a view that you will look into the matter and ensure that the mandate has remained with its rightful owner.
Find attached are photocopies of statement of results for the four (4) local government and final summary result sheet, committee reports on the conduct primaries in Niger state, INEC nomination form EC4B(v) and INEC Affidavit form CF001.
While anticipating your positive response please accepts my regards of the highest esteem.
Yours faithfully,
SIGNED
Hon. Barr. AL Abdulmalik Sarkin Daft
Cc:
APC State Chairman Niger State,
Director Admin.
National
21
Sec. APC
North Central Chairman.” (Underline mine for emphasis)
The words “replaced” and “substituted” used in Exhibit M are past tenses. Therefore, Exhibit M above shows that the 1st respondent knew about the decision replacing his name as at 15th October, 2018 the date of Exhibit M.
In consideration of whether an action is caught by statute of limitation, what is of paramount consideration is the determination of;
a. The cause of action
b. When the cause of action accrued; and
c. When the action became statute-barred.
To determine these conditions, what the Court would look at are the originating motion and the affidavit in support alleging when the wrong which gave the plaintiff a cause of action was committed and by comparing that date with the date on which the originating summons was filed. If the time contained in the originating summons as the time the cause of action arose is beyond the period allowed by the limitation law, then the action is statute barred. See MUHAMMAD VS. MIL. ADMIN, PLATEAU STATE (2001) 16 NWLR (PT. 740) PG 570. As stated earlier, the 1st respondent’s action was instituted at the
22
trial Court on 31st October, 2018. From the date of Exhibit M i.e. 15th day of October, 2018, he knew that his name was replaced and substituted, his right to invoke the jurisdiction of the Court under Section 87 (9) of the Electoral Act, 2010 in my view had accrued.
In resolving this issue, the trial Court in its judgment held thus;
“The question at this point is when did the cause of action arose? The cause of action in my view arose on 26th October, 2018 when the Plaintiff discovered that the name of the 3rd Defendant was displayed as the candidate of the 1st Defendant in the 2019 general election and not on the 4th/5th October, 2018 as contended by the 1st Defendant. It was on the 26th October, 2018 that the Plaintiff becomes aware that 3rd Defendant’s name was displayed as the candidate of the 1st Defendant and i so hold.”
In the instant case, contrary to the holding of the trial Court above, the 1st respondent’s suit has nothing to do with the display of the name of the appellant, but rather substitution/replacement of his name with that of the appellant which he knew as at 15th October, 2018. The general rule is that cause of action
23
arises on a date or from the time when a breach of any duty or act occurred, which warrants the person who is injured or the victim who is adversely affected by such breach to take a Court action to protect his right that has been violated. Election related matters are sui generis. They are unlike ordinary civil proceedings without a time bar. See: HASSAN VS. ALIYU (2010) ALL FWLR (PT. 539) 1007 AT 1046. By virtue of the provisions of Section 285 (9) of the Constitution 4th Alteration Act, 2017, the cause of action in every pre-election matter arises from date of the occurrence of action complained of by the Plaintiff in his suit.
This Court in the case of DAVID UMAR VS. ALL PROGRESSIVES CONGRESS (APC) & 2 ORS (Appeal No. CA/A/126/2019 Unreported delivered on 8th April, 2019) PER, EMMANUEL A. AGIM, JCA held thus;
“The date a party became aware of an event or the decision that he challenges in a Suit is not the determinant of the date of actual cause of action or the date from which the time prescribed for bringing such action to Court can be reckoned unless the law or statute that prescribes such time limit stipulates that the time shall start
24
running from the date the party became aware of the event or decision. There is nothing in Section 285 (9) of the 1999 Constitution that provides that 14 days period for filing a suit shall start running from the date the party becomes aware of the event or decision.”
I have no doubt in my mind that the 1st respondent has shown by Exhibit M dated 15th October, 2018 attached to his originating summons, that he knew about the replacement of his name. Therefore, his cause of action accrued on that date. See J.K.K LTD VS. GOV. LAGOS STATE (2014) 5 NWLR (PT. 1399) PG 151 AT 167.
In this case The 1st Respondent’s action was filed at the trial Court on 31st October, 2018 on an event (substitution/replacement of his name) which he became aware of as at 15th October, 2018. From 15th October, 2018 to 31st October 2018 when the plaintiff/1st respondent filed his suit at the trial court is well over 14 days. Therefore, the Failure of the 1st Respondent to file his suit not later than 14 days after the action complained (in this case replacement of his name), as required by Section 285 (9) of the CFRN (4th alteration Act 2017) is fatal to his case and ousted the
25
trial Court of its jurisdiction to entertain the matter.
Issue one is resolved in favour of the Appellant.
Having held that the jurisdiction of the trial Court had been ousted, all other issues raised in this appeal have become academic and of no moment.
This appeal is adjudged to be meritorious and it is hereby allowed. The decision of the trial Court in suit No: FHC/MN/CS/49/2018 is hereby set aside as the trial Court had no jurisdiction whatsoever to entertain the Plaintiff/1st Respondent’s suit filed on 31st October, 2018.
There shall be no order as to costs.
PETER OLABISI IGE, J.C.A.: I agree.
MOHAMMED BABA IDRIS, J.C.A.: I have read the lead judgment of my learned brother, ABDU ABOKI, JCA. I agree with his reasoning and conclusion in allowing the appeal. I, too, allow the appeal.
26
Appearances:
Y.C. Maikyau, SAN with him, T.R Agbanyi, Nwabueze Obasi-Obi, T.A Rapu, Morris C. Duru and Nuratu UmarFor Appellant(s)
P.I.N Ikwueto, SAN with him, S.T Ahmad, H.K. Eni-Otu for the 1st Respondent.
Babatunde John Ogala with him, Chima Osuagwu, Ghani Arobo, Julius Ishola, Ayo Shadrack Royal Lucky, Toluwani Alabi and Anthony Onyeri for the 2nd RespondentFor Respondent(s)
Appearances
Y.C. Maikyau, SAN with him, T.R Agbanyi, Nwabueze Obasi-Obi, T.A Rapu, Morris C. Duru and Nuratu UmarFor Appellant
AND
P.I.N Ikwueto, SAN with him, S.T Ahmad, H.K. Eni-Otu for the 1st Respondent.
Babatunde John Ogala with him, Chima Osuagwu, Ghani Arobo, Julius Ishola, Ayo Shadrack Royal Lucky, Toluwani Alabi and Anthony Onyeri for the 2nd RespondentFor Respondent
