SHUAIBU MOHAMMED LIMAN IYA v. ALL PROGRESSIVE CONGRESS & ORS
(2019)LCN/13283(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/A/314/2019
RATIO
JURISDICTION: IMPORTANCE OF JURISDICTION BEING DEALT WITH FIRST
The Issue of jurisdiction of a Court is fundamental as without it, its proceedings will come to naught, with the attendant consequences of loss of time and resources. That is why a jurisdictional issue is always decided first – NNONYE V ANYICHIE (2005) 2 NWLR (pt 910) 623.PER ABUBAKAR DATTI YAHAYA, J.C.A.
JURISDICTION: THE PLAINTIFFS CLAIM IS CONSIDERED IN DETERMINING JURISDICTION
It is trite, that it is the plaintiff’s claim that a Court considers, in order to determine jurisdiction. But where the Suit was commenced by an Originating Summons, it normally becomes necessary to have recourse to the affidavit in support of the Originating Summons.PER ABUBAKAR DATTI YAHAYA, J.C.A.
PRE-ELECTION MATTERS: WHEN A PRE ELECTION MATTER BECOMES STATUTE BARRED
The Constitution provides that the 14 days is to be calculated from the day the event occurred and this in clear terms, means that the day is included in the calculation since from the date of the occurrence of the event” is the fundamental phrase. This is contrary to the Interpretation Act, which states that the day of the event, is normally excluded in calculating the period of time. But Election matters are sui generis and the Interpretation Act does not apply in that respect- OMISORE V AREGBESOLA (2015) 15 NWLR (pt 1482) 205 and NGIGE V INEC (2015) 1 NWLR (pt 1440)281.PER ABUBAKAR DATTI YAHAYA, J.C.A.
THE TIME LIMIT FIXED BY THE CONSTITUTION FOR DOING A THING MUST BE STRICTLY ADHERED TO
Once the Constitution fixes a time limit for doing a thing, especially on election or pre-election matters, that period must be adhered to strictly. If the time fixed is not respected, no Court will have the jurisdiction to entertain an action filed. -ANPP V GONI (2012) 7 NWLR (PT 1298) 147. The words used by the Constitution are clear from the date of the occurrence.PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
SHUAIBU MOHAMMED LIMAN IYA Appellant(s)
AND
ALL PROGRESSIVE CONGRESS (APC) & ORS Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court Minna, in Suit No FHC/MN/CS 244/2018, delivered on the 3rd of April 2019.
The 3rd respondent herein, was the plaintiff at the Federal High Court Minna (the trial Court) and the appellant herein, was the 3rd defendant. Both of them contested the Primary Election for the House of Assembly, Suleja State Constituency, Niger State, conducted by their party, All Progressive Congress (APC), the 1st respondent herein, on the 6th of October 2018. The appellant said that he emerged the winner of the primary election, as he scored 3,089 votes, whilst the 3rd respondent scored 348 votes. The appellant was given INEC Form CF001, which he filled and his name was submitted to INEC (2nd respondent herein) by his party ? 1st respondent, on the 2nd day of November, 2018. INEC published the appellant’s personal particulars on the 9th of November 2018.
?The 3rd respondent, who said he was the one who scored the highest votes with 6,960 votes, whilst the appellant only scored 911 votes, contended that he was the one who
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won the said primary election and that his name should have been forwarded to INEC, and that it was wrong for his party to forward the name of the appellant. He said that his party made its action public, on the 9th of November 2018. He therefore took out of the trial Court, an Originating Summons against the appellant on the 23rd of November 2018.
The appellant filed a counter – affidavit to the Originating Summons and also filed a Motion to dismiss the Suit for lack of jurisdiction. The trial Court dismissed the issue of lack of jurisdiction and entered judgment for the 3rd respondent, on 3rd of April 2019.
Being dissatisfied, the appellant filed this appeal on the 5th of April 2019.
The appellant’s brief was filed on the 18th of April 2019, and his Reply brief on the 30th of April 2019.
In the appellant’s brief, five Issues were identified for resolution thus-
1. Whether the trial Court had jurisdiction to entertain the 3rd respondent’s suit and determine same.
2. Whether the trial Court had jurisdiction to entertain the suit which borders on sponsorship of a candidate at an election which is purely an internal affair of
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the political party.
3. Whether the suit was suitable for Originating Summons having regard to the state of pleadings of the parties.
4. Whether the suit was incompetent, the 3rd respondent having not exhausted the internal mechanisms of the 1st respondent as provided in Article 16 of the APC 2014 Guidelines for Nomination of Candidates for Public Office.
5. Whether having regards to the evidence placed before the lower Court the 3rd respondent was entitled to the reliefs granted.
The 3rd respondent adopted the Issues distilled by the appellant.
ISSUES 1 AND 2
Learned Counsel for the appellant submitted on these issues, that it is the plaintiff’s claim that should provide the Court with the material to decide whether a suit is within its jurisdiction, and in this case, where it is the Originating Summons that commenced the suit, the affidavit in support of the Originating Summons – ADEYEMI V OPEYORI (1976) 9-10 S.C 31 at 49 AND TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (pt 117) 517 at 549. That when the statement of claim is not helpful, then the Court may resort to the statement of defence, the evidence received or a
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motion supported by an affidavit deposing to facts- NDIC V CBN (2002) 7 NWLR (pt 766) 272 at 296. Counsel invited this Court to look at the affidavits in order to ascertain the jurisdiction of the trial Court to entertain the suit. He referred to Section 285 (9) of the Constitution of the Federal Republic of Nigeria as amended and submitted that as the 3rd respondent was complaining of the primary election which was conducted on the 6th of October 2018, the cause of action arose on that day. Since the Suit was not filed until the 23rd of November 2018, it was filed outside the 14 days stipulated and was therefore statute- barred- EZE V OGARA (UNREPORTED) Appeal NO CA/A/103/2019; DAVID UMARU V APC (unreported) Appeal NO CA/A/129/2019, delivered on 8th April 2019; ALL PROGRESSIVES CONGRESS V HON ABDULLAHI I GARBA & ORS CA/A/2019 delivered on 11th April 2019.
Counsel argued that if the date of the Primaries is not the date the cause of action arose, then 2nd of November 2018, the date the name of the appellant was submitted to INEC should be the day the cause of action accrued, and by Section 285 (9) of the Constitution, the 3rd respondent had 14 days
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to institute the action. That he did so on 23rd November 2018 and that is a period of 21 days, outside the period allowed.
That even if the 9th November 2018, the day the 3rd respondent said (paragraph 22 of the affidavit in support of the Originating Summons at page 11 of the record) he became aware that it was the appellant’s name that was submitted to INEC, the 3rd respondent is still outside the 14 days allowed, as time begins to count from the day of the event ALATAHA V ASIN (1999) 5 NWLR (PT 601) 32 at 44 and IKHARAIALE V OKOH (2009) 12 NWLR (pt 1154) 1 at 38-39. He also referred to OKECHUKWU V INEC (2014) 17 NWLR (pt 1436) 255 at 285 and host of others. He submitted that the case of the 3rd respondent at the trial Court was statute – barred and should be dismissed – N.P.A PLC V LOTUS PLASTICS LTD (2005) 9 NWLR (pt 959) 158 at 189.
In his response, Mr. Idris Yakubu learned counsel for the 3rd respondent submitted, that the complaint of the plaintiff before the trial Court, was not against the primary election held on 6th October 2018. That his complaint was the non – submission of his name to INEC by his party since he won the primary
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election- page 6 – 12 of the record. That the 3rd respondent only became aware of the failure to submit his name to INEC on 9th November 2018 when it was the name of the appellant that was published, and that that was the day his cause of action arose. He then referred to YUSUFU V OBASANJO (2003) 16 NWLR (pt 847) 554 at 629 and EZEIGWE V NWAWULU (2010) 4 NWLR (pt 1183) 159 at 197 where it was held that the date of the occurrence of an event must be excluded in computation of time in election matters. He then argued that the action was filed within 14 days and was not statute barred.
I have considered the arguments of both counsel. The Issue of jurisdiction of a Court is fundamental as without it, its proceedings will come to naught, with the attendant consequences of loss of time and resources. That is why a jurisdictional issue is always decided first – NNONYE V ANYICHIE (2005) 2 NWLR (pt 910) 623.
It is trite, that it is the plaintiff’s claim that a Court considers, in order to determine jurisdiction. But where the Suit was commenced by an Originating Summons, it normally becomes necessary to have recourse to the affidavit in support of
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the Originating Summons.
In the instant appeal, paragraph 22 of the Affidavit in support of the Originating Summons, deposed to by the plaintiff then, at page 11 of the record, states-
“That instead of forwarding my name to the 2nd Defendant as the aspirant who scored the highest number of votes at the 1st Defendant’s primaries of 6th October, 2018, the 1st Defendant to my utmost surprise submitted the name of the 3rd Defendant to the 2nd Defendant as its candidate for Suleja State Constituency which I became aware of on the 9th day of November, 2018 when the 2nd defendant published the personal particulars of the 3rd defendant within Suleja Constituency of Niger State.”
From the above, it is clear that he only became aware on the 9th November 2018, of the fact that it was the name of the appellant that was submitted to INEC and not his name, as the alleged winner of the primary election. ?By his prayers in the Originating Summons, the 3rd and 4th Declarations are that since he scored the highest number of votes at the Primary Election conducted on the 6th of October
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2018, the submission by the 1st respondent herein, of the name of the appellant to INEC, to contest election to the office of the member representing Suleja Constituency at the general elections for the 2019, is unconstitutional, illegal and null and void. Clearly therefore, the 3rd respondent herein, was not challenging the primary election. He was challenging the non-submission of his name to INEC, and the submission of the name of the appellant.
That is his cause of action. Since he only became aware of this on the 9th of November 2018, I agree with him that that is when his cause of action arose.
By Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No 21) Act, 2017, a pre- election matter is to be filed within 14 days in these words-
“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.?
The “occurrence of the event” is the cause of action and in this respect, it is the 9th of November, 2018. The question is whether
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that date is within or without the calculation of the days. The Constitution provides that the 14 days is to be calculated from the day the event occurred and this in clear terms, means that the day is included in the calculation since ?from the date of the occurrence of the event” is the fundamental phrase. This is contrary to the Interpretation Act, which states that the day of the event, is normally excluded in calculating the period of time. But Election matters are sui generis and the Interpretation Act does not apply in that respect- OMISORE V AREGBESOLA (2015) 15 NWLR (pt 1482) 205 and NGIGE V INEC (2015) 1 NWLR (pt 1440)281.
Once the Constitution fixes a time limit for doing a thing, especially on election or pre-election matters, that period must be adhered to strictly. If the time fixed is not respected, no Court will have the jurisdiction to entertain an action filed. -ANPP V GONI (2012) 7 NWLR (PT 1298) 147. The words used by the Constitution are clear from the date of the occurrence. A similar situation was decided in the case of OKECHUKWU V INEC (2014) 17 NWLR (pt 1436) 255 where Ariwoola JSC held
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The provision of the Interpretation Act on computation shall not apply to the requirement of time… Time shall run, in the peculiarity of our Electoral Act, Practice Direction and the 1999 Constitution of the Federal Republic of Nigeria (as amended) from the day of the act and the day shall not be excluded…”
This is specifically with respect to the Constitution of Nigeria 1999 as amended, and therefore applicable. The cases of YUSUFU V OBASANJO (SUPRA); EZEIGWE V NWAWULU and AKEREDOLU V AKINREMI (SUPRA) cited by the 3rd respondent do not apply here as they were not decided pursuant to the extant provision of the 1999 Constitution.
Since the date the event occurred is 9th of November 2018, that date must be included in counting the 14 days stipulated by the Constitution within which to file the action filed by the 3rd respondent at the trial Court. The 14 days ended on the 22nd of November 2018. The action was filed on the 23rd of November, 2018. It was therefore filed outside the stipulated period and the trial Court had no jurisdiction to adjudicate on it. See APC V CHIEF IKECHI EMENIKE, an unreported decision of the Court in
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CA/A/39/2019 delivered on the 28th of January 2019.
I therefore hold that this appeal has merit and it is allowed. I set aside the decision of the Federal High Court Minna in Suit No FHC/MN/CS/51/2019, delivered on the 3rd of April 2019.
As this is a straightforward and trite Issue, pronounced upon by the Supreme Court, I do not find it necessary to consider the other Issues.
No Order as to cost
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Abubakar Datti Yahaya, JCA.
I am in agreement with his reasoning and conclusion that the appeal has merit. I also, having gone through the arguments of the parties in their respective Briefs, I do hold that this appeal has merit and I allow it. The decision of the Federal High Court sitting in Minna in Suit No. FHC/MN/CS/51/2019 delivered on the 3rd April, 2019, is hereby set aside. I abide the consequential order as made in the lead judgment of my brother.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment of my learned brother, ABUBAKAR DATTI YAHAYA, JCA.
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I am in agreement with his reasoning and conclusion and orders reached therein.
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Appearances:
J. J Usman, Eko Ejembi, with him, J. A Sambo and Safiya MohammedFor Appellant(s)
Idris Yakubu for the 3rd RespondentFor Respondent(s)
Appearances
J. J Usman, Eko Ejembi, with him, J. A Sambo and Safiya MohammedFor Appellant
AND
Idris Yakubu for the 3rd RespondentFor Respondent
