EZE OMOLU v. MR. OCHONOGOR CHUKWUKA DAVID & ORS
(2019)LCN/13105(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of April, 2019
CA/B/123/2019
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
EZE OMOLU Appellant(s)
AND
1. MR. OCHONOGOR CHUKWUKA DAVID
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. ALL PROGRESSIVES CONGRESS Respondent(s)
RATIO
CONSEQUENCES OF WHEN AN ACTION IS STATUTE BARRED
In general legal parlance, an action shall not be commenced outside the time so prescribed by statute. In other words a suit must be commenced by an aggrieved party within the statutory period otherwise the said action will be statute-barred. When an action is statute barred, the following legal consequences will follow: to wit.
1. The party will lose the right of action
2. The Party would lose the right of enforcement
3. The party would also irretrievably lose the right to judicial relief.
See also the following authorities:
SOSAN V. ADEMUYIWA (1986) 3 NWLR (Pt.27) 241; NIG. PORTS AUTHORITY PLC V. LOTUS PLASTICS LTD. & ANOR. (2005) 19 NWLR 158.
The period of limitation in respect of any case runs from the date the cause of action occurs and to determine such a date, one has to look at the writ of summons and the averment in the claim as well as the evidence adduced in Court. The cause of action would occur when it becomes complete, such that the aggrieved party can begin and maintain his claim. See ITF V. NRC (2007) 3 NWLR (1020) 28. PER EKPE, J.C.A.
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the decision of the Federal High Court Asaba, delivered on the 26th Day of February 2019.
The brief facts of the case are as follows:
The Appellant, the 1st Respondent and other members of the 3rd Respondent party contested the primary election of the A.P.C. for the Ukwuani State Constituency for the 2019 general elections into the Delta State House of Assembly. The story line of the Appellant is that he had emerged as winner of the said elections and was consequently chosen by his party the 3rd Respondent as its candidate for the constituency for the general elections into the Delta State House of Assembly.
?The 1st Respondent however filed an Originating Summons at the Federal High Court, Asaba Division claiming a number of reliefs which included a declaration that having regards to Section 87(4) (c) of the Electoral Act, 2010 (as amended), the 1st defendant acted illegally, improperly, unfair and unjustly to have accepted from the 2nd defendant and consequently published the nomination form filed by the 3rd
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defendant as the candidate of the 2nd defendant in the forthcoming House of Assembly Elections in Ukwuani State Constituency.
The Appellant hereinafter filed a preliminary objection to the suit. The said preliminary objection and the originating summons were taken together by the lower Court and Judgment was delivered on the 26th day of February, 2019.
A notice of Appeal was filed on the 6th day of March 2019 and the Appellant raised the following issues for determination:
1. Whether the 1st respondent had the locus standi to challenge the choice of candidate of the 3rd respondent for Ukwuani State Constituency in the 2019 general election into Delta State House of Assembly. GROUND 1, 4 and 5.
2. Whether the trial Court had the jurisdiction to entertain the 1st respondent?s suit not being justiceable. GROUND 2.
3. Whether the 1st respondent?s suit was not statute barred. GROUND 3.
4. Whether exhibits B and D exhibited by the 1st respondent do not contradict themselves and if they do whether the effect is not to reject both. GROUND 7.
5. Whether exhibit B the hand written result by the
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1st respondent is the result of the primary election conducted by the 3rd respondent for Ukwuani State Constituency. GROUND 6.
6. Whether the 1st respondent proved his case from the evidence before the Court. GROUND 8 AND 9.
The 1st Respondent on his part also raised the following issues for determination:
i. Whether the 1st Respondent had the locus standi to institute the suit at the lower Court? (Grounds 1, 4 and 5)
ii. Whether in the circumstance of this case, the suit of the 1st Respondent is justiciable (Ground 2)
iii. Whether the lower Court was right when it held that the case of the 1st Respondent is not statute barred (Ground 3)
iv. Whether the lower Court was right in the circumstance of this case to rely on Exhibits B and D exhibited by the 1st Respondent (Ground 7)
v. Whether from the totality of the circumstance of the case, the lower Court was right to exercise its discretion in favour of the 1st Respondent (Ground 6, 8 and 9).
I shall adopt the issues as raised and couched by the Appellant to be used in this discourse.
On Issue One, Whether the 1st respondent had the locus
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standi to challenge the choice of candidate of the 3rd respondent for Ukwuani State Constituency in the 2019 general election into Delta State House of Assembly. Ground 1, 4 and 5. Learned counsel for the Appellant argued that nobody including members of a political party can challenge the choice of candidate of a political party. He stated that the right granted by S. 87 (9) of the Electoral Act 2011 specifies that the nomination of a candidate is within the domestic affairs of that political party. He cited the cases of:
1. UFOMBA VS INEC
2. FALEKE VS. INEC
That an aspirant under S. 87 (9) of the Electoral Act has the right only to challenge the process of a primary election only for the purpose of securing damages if any wrongdoing against the party is proved.
Learned counsel for the Appellant further stressed the point that the 1st Respondent did not participate in the said primary election. That exhibit D bears the name David Ochonogo as the participant while the 1st Respondent?s name as shown in the suit is Mr. Chukwuka David. He concluded that the 1st Respondent not being an aspirant in
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the primary election lacks the locus standi to institute the action.
On Issue Two, counsel submitted that the trial Court had no jurisdiction to entertain any suit under S. 87(8) of the Electoral Act for the purpose of delving into the choice of candidates of the political party.
On Issue Three, whether the 1st respondent?s suit was not statute barred. Ground 3. Learned counsel for the Appellant opined that the suit of the 1st Respondent was statute barred. That the cause of action in the suit arose before the 15th October 2018 while the action of the 1st Respondent was filed at least 37 days after the event occurred.
On Issue 4, whether exhibits B and D exhibited by the 1st respondent do not contradict themselves and if they do whether the effect is not to reject both. Ground 7.
Learned counsel for the Appellant canvassed the main point of argument by submitting that there are contradictions in exhibit D between 140 delegates registered and 146 votes cast as exhibited in Exhibit D.
On Issues 5 and 6:
5. Whether exhibit B the hand written result by the 1st respondent is the result of the primary
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election conducted by the 3rd respondent for Ukwuani State Constituency. Ground 6.
6. Whether the 1st respondent proved his case from the evidence before the Court. Ground 8 and 9.
Learned counsel for the Appellant argued both Issues in one fell swoop by first submitting that the only authentic result of the election should emanate from the General Onoja?s Committee. That the 1st Respondent merely annexed exhibit B, a handwritten result which did not bear any insignia of the A.P.C. party. That it was merely the result of the Delta State Chapter of the 3rd Respondent (APC). That as rightly held by the trial Court earlier, only the National Executive Committee can conduct a party primary and not a state chapter of a party. See ETIM V AKPAN (2019) 1 NWLR (Pt. 1654) 451 Ratio 1. Learned counsel then concluded that the so called decision of the National Appeal Committee of APC nailed the case of the 1st Respondent by first confirming that the suit was filed not less than 30 days after the cause of action arose.
?In reply, the 1st Respondent?s counsel argued that he had sufficient legal
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interest to institute this action. That from the affidavit in support of the originating summons, the 1st respondent detailed how he contended and won the primary elections of the party (APC) but the forms published in respect of the 3rd Respondent?s candidate for Ukwuani State Constituency was that of the appellant. That it is on record that the 1st Respondent was an aspirant/candidate at the primary election concluded by the 3rd Respondent in respect of Ukwuani State Constituency. Learned Respondent?s Counsel further argued that the name ?OCHONGOR CHUKWUKA DAVID” is one and the same name as ?DAVID OCHONOGOR? and that the institution of the wrong name amounts to dwelling on technicality which the Courts have long moved away from.
Learned Respondent?s counsel surmised that by virtue of S. 87 (9) of the Electoral Act, the 1st Respondent who complained that he polled the highest votes in the primary election and was not recognized as the lawful candidate of the Political Party by the 2nd Respondent can maintain a justiciable suit in the High Court. To buttress this assertion,
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the case of AGHEDO V ADENOMO (2019) 13 NWLR (Pt. 1636) 264.
On the issue of the suit being statute barred, the 1st Respondent?s counsel further submitted that it is settled law that in determining whether a suit is statute barred, the only process open to the Court?s consideration is the plaintiff?s originating process and the affidavit in support. That the time limited by virtue of S. 285 (9) of the 4th Alteration to the Constitution is 14 days. That the evaluation of evidence on this issue is the exclusive preserve of the trial Court and the appellate Court can only interfere where the decision of the trial Court is seen to be perverse.
On the issue of Exhibits B and D being contradictory, learned counsel opined that the lower Court had evaluated the evidence and found that the number of votes allotted to the candidates both on Exhibits B and D tally, and therefore relied on same. That the contradictions should only be on material facts for the Court to doubt such evidence.
He concluded that the lower Court was right to rely and ascribe evidential weight to the said exhibits B & D.
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On the issue of the Court?s exercise of discretion in favour of the 1st Respondent, learned counsel for the 1st Respondent submitted that a party claiming a declaration of a right must provide ample evidence. See BELLO V EWEKA (1981) NSCC (Vol. 12) 48. That the claim of the 1st Respondent before the lower Court was that he polled the highest scores at the primary of the 3rd Respondent but that the appellant was in his stead recognized. That to prove the above assertion, the 1st Respondent then rendered exhibit B which is the handwritten result of the primary election. See pages 9 & 10 of the record. 1st Respondent further argued that of all the aspirants, the 1st Respondent scored the highest votes and won the primary of the 3rd Respondent thus producing Exhibit H which is the report of 3rd Respondent?s appeal committee, declaring 1st Respondent winner of the said election.
Learned Respondent?s counsel then concluded that a party asking for a declaratory relief should succeed on the strength of his case and the burden then shifts to the other party to disprove the case of the plaintiff. He further concluded that the appellant as the
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defendant at the lower Court failed to discharge that burden and urge the Court to dismiss the appeal.
RESOLUTION:
The 1st Respondent as plaintiff in the lower Court prayed for the following reliefs:
1. A DECLARATION that having regards to Section 87 (4) (c) of the Electoral Act, 2010 (as amended), the Plaintiff is the lawful candidate of the 2nd Defendant in the forthcoming House of Assembly Elections in Ukwuani State Constituency.
2. A DECLARATION that having regards to Sections 87 (4) (c) of the Electoral Act, 2010 (as amended), the 1st Defendant acted illegally, improperly, unfairly and unjustly to have accepted from the 2nd Defendant and Consequently published the nomination form filled by the 3rd Defendant as the candidate of the 2nd Defendant in the forthcoming House of Assembly Elections in Ukwuani State Constituency.
3. AN ORDER DIRECTING AND COMPELLING the 1st Defendant either by herself, agents, servants, privies, surrogates, staff or any person acting through the Defendant to recognize forthwith the Plaintiff as the lawful candidate of the 2nd Defendant in the forthcoming House of Assembly Elections in Ukwuani State Constituency.
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The gravamen of the case of the appellant is that having regards to S.87(4) of the Electoral Act 2010 (as amended) the 1st Defendant/2nd Respondent acted illegally and unjustly to have accepted and published the nomination form filed by the 1st Respondent/2nd Defendant in the forth coming House of Assembly Elections in Ukwuani State Constituency. The Appellant then prays for an order directing and compelling the 1st Defendant/2nd Respondent to recognize forthwith the Plaintiff/Appellant as the lawful candidate of the 2nd Defendant/3rd Respondent in the forthcoming House of Assembly Elections in the Ukwuani State Constituency.
To begin with, the Appellant asserts that the 1st Respondent had no locus standi to institute the action as plaintiff at the lower Court. The question here is whether the 1st Respondent has sufficient legal interest that is being threatened. To establish this fact, it is therefore pertinent to examine his statement of claim which in the present case is the affidavit in support of the originating summons.
?In paragraph 8 of the affidavit in support of the originating summons it is clearly thus stated ?..
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8. The names of those who participated in the primary election and their respective scores are as follows:
a. EMEKA OSSAI . 23 VOTES
b. ADOH DUKE OGOCHUKWU DAVID ?. 98 VOTES
c. OCHONOGOR CHUKWUKA DAVID ?.. 98 VOTES
d. EZE OMOLU .. 2 VOTES
e. VOID VOTES NIL
f. TOTAL VOTES CAST . 146 VOTES.
It is clearly stated in paragraph 9, that the 1st Respondent polled the highest number of votes cast and was accordingly declared and returned as the winner of the primary election. The said hand written copy of the result was tendered as exhibit B. In the case of EKHAGUERE V IGBINOMWANHIA (2010) LPELR this Court stated:
?The term locus standi ?.. has been defined as denoting legal capacity to institute actions in a Court of law. It is not dependent on the success or merit of a case, it is a condition precedent to adjudication by a Court to determine a case on the merits.?
Going by the undisputed facts in the instant case at the lower Court, it generally
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borders on the nomination of candidates and the duty of the 2nd Respondent (INEC) to accept or reject the candidate with the highest votes. If the 1st Respondent was an aspirant, rightly or wrongly then he has an interest to protect and thus has the locus standi to institute an action whether or not he stands to win at the end.
The next point to be considered is whether the trial Court had the jurisdiction to entertain the suit of the 1st Respondent. There is no gainsaying the fact that the lower Court is indeed clothed with the jurisdiction to entertain the suit at the lower Court being an election petition resolved by an Election Tribunal manned by either the State High Court or the Federal High Court.
Again, the Appellant argued that the suit of the Plaintiff/1st Respondent at the lower Court is statute barred. I have indeed ploughed through the record of appeal and the briefs of the various parties also paying specific attention to the legal authorities cited by the contending parties. S. 285 (9) of the Constitution of the Federal Republic of Nigeria (as amended) thus provides:
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?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.”
By the words of the Constitution as aforestated, one can only read the ordinary grammatical meaning to the said words. By a literal interpretation to the above S. 285 (9) of the Constitution (as amended), it follows that every pre-election matter, case, cause or action ought to be filed within 14 days from the date of the occurrence of the action or event complained of. It follows therefore that in order to determine whether a pre-election matter was filed within the stipulated 14 days as per Section 285 (9) of the 1999 Constitution (as amended) the Court should examine the originating process of the claimant?s suit to determine ?the date of the event, the decision or action complained of in the suit?. In general legal parlance, an action shall not be commenced outside the time so prescribed by statute. In other words a suit must be commenced by an aggrieved party within the statutory period otherwise the said action will be statute-barred.
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When an action is statute barred, the following legal consequences will follow: to wit.
1. The party will lose the right of action
2. The Party would lose the right of enforcement
3. The party would also irretrievably lose the right to judicial relief.
See also the following authorities:
SOSAN V. ADEMUYIWA (1986) 3 NWLR (Pt.27) 241; NIG. PORTS AUTHORITY PLC V. LOTUS PLASTICS LTD. & ANOR. (2005) 19 NWLR 158.
The period of limitation in respect of any case runs from the date the cause of action occurs and to determine such a date, one has to look at the writ of summons and the averment in the claim as well as the evidence adduced in Court. The cause of action would occur when it becomes complete, such that the aggrieved party can begin and maintain his claim. See ITF V. NRC (2007) 3 NWLR (1020) 28.
In the instant case, the 1st Respondent contended that the cause of action arose on the 6th day of October 2018 when the primary election to the House of Assembly for Ukwuani State Constituency was conducted and in line with Section 285 (9) of the 1999 Constitution (4th Alteration) as amended and that the
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Plaintiff/Appellant had 14 days within which to file this suit. It is my view as well as that held by the lower Court, that the 1st Respondent did not complain about the conduct of the primary election for Ukwuani State Constituency but that he became aware of this on the 10th day of November 2018 and thus he became a Plaintiff and time began to run from thereon. In the case ofWILLIAMS V. WILLIAMS (2008) 10 NWLR (Pt.1095) 369 para A-C. The apex Court clearly thus stated:
?Time therefore begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the Plaintiff to succeed.?
From the above summation, the 1st Respondent became aware of the omission of his name published by the 2nd Respondent on the 10/11/2018 i.e. the 10th day of November 2018 and the suit was filed on the 21/11/2018. It follows therefore that the suit was filed within the limitation period and therefore not statute barred. In other words, the action arose on the 10/11/2018 when the 1st Respondent discovered that his name was not published by INEC as the candidate
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of the 2nd Respondent/Appellant for the House of Assembly, Ukwuani State Constituency since the nomination form published did not carry his name as a candidate. See paras 12-15 of the 1st Respondent?s affidavit in support of the originating summons. I reiterate the fact that Section 285(9) of the Constitution (4th Alteration No.21) of 2017 provides as follows:
?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.?
The next point to be considered is whether Exhibits B and D exhibited by the 1st Respondent do not contradict themselves and ought to have been rejected. To begin this discourse, Exhibit B is the hand written result of the primary election given to the 1st Respondent by his agent. (See page 9 & 10 of the record). Also Exhibit B is the report of INEC (2nd Respondent) of the primary election. No doubt the Appellant herein has made heavy weather of the fact that the above named exhibits are contradictory and ought to have been jettisoned by the lower Court.
It is on record that the lower Court went
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through the gamut of evaluating the entire evidence before it and arrived at the conclusion that the discrepancies in the two pieces of exhibits are not material as alleged. In fact the lower Court held that both exhibits tally and that the facts therein are not material enough to be discarded or jettisoned.
It is noteworthy that the 1st Respondent polled the highest votes at the said primary election and also the fact that 2nd Respondent (INEC) monitored the said elections of the Appellant and 1st Respondent. It is my humble view therefore that the lower Court was right to rely and ascribe evidential weight to Exhibit B and D as evidence admissible, relevant and credible. We cannot therefore gloss over the report of INEC who monitored the elections and produced the result as well as the report of the Appeals panel of the Gen. Onoje.
In the final analysis, and from the totality of all of the above summation, I hold the view that the Appellant has failed to prove his case to sway the mind of the Court in his favour. This appeal has no scintilla of merit, it fails and is hereby dismissed. Accordingly the Judgment of the lower Court
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delivered on the 28th Day of February 2019 by Justice T.B. ADEGOKE in Suit No. FHC/ASB/CS/95/2018 is hereby affirmed.
Cost of N200,000.00 (Two hundred thousand naira) is awarded in favour of the 1st Respondent against the Appellant.
Appeal Dismissed.
CHIOMA EGONDU NWOSU-IHEME. J.C.A.: I read in draft the judgment of my learned brother P. M EKPE, JCA just delivered.
My learned brother has comprehensively dealt with the issues identified for determination in this appeal. I agreed with his reasoning and conclusion.
For the reasons advanced in my learned brother’s lead judgment, I also dismiss this appeal and affirm the judgment of the trial Court.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the Judgment of my learned brother, PHILOMENA MBUA EKPE, JCA, just delivered. I agree that the appeal lacks merit and I hereby dismiss it.
I abide by the order as to costs.
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Appearances:
F. A. Onuzulike, Esq. with him, C.U. IgweFor Appellant(s)
Habeeb Lawal and Izuchukwu AnyadikeFor Respondent(s)
