ALL PROGRESSIVES CONGRESS v. MOHAMMED ABDULLAHI ADAMU & ORS
(2019)LCN/13345(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2019
CA/A/313/2019
RATIO
PRE-ELECTION MATTERS: THE PERIOD WITHIN WHICH A PRE-ELECTION MATTER MUST BE FILED
In resolving this issue it is pertinent for me here to reproduce the provisions of 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 suite.” (Underline mine for emphasis)PER ADAMU JAURO, J.C.A.
STATUTE OF LIMITATION: WHAT MUST BE CONSIDERED IN CONSIDERING WHETHER OR NOT A MATTER WAS CAUGHT BY STATUTE OF LIMITATION
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 summons 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 the cases of; MUHAMMED Vs MIL. ADMIN, PLATEAU STATE (2001) 16 NWLR PT. 740 PG 570; OBIKA Vs OBIKA (2018) LPELR – 43965.PER ADAMU JAURO, J.C.A.
ELECTION MATTERS: NATURE
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 ADAMU JAURO, J.C.A.
WHEN DOES CAUSE OF ACTION ARISE IN ELECTION RELATED 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.PER ADAMU JAURO, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
ALL PROGRESSIVES CONGRESS (APC) Appellant(s)
AND
1. MOHAMMED ABDULLAHI ADAMU
2. ABDULLAHI SHABA ADAMU
3. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC) Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the Judgment of the Federal High Court, sitting at Minna, delivered on 29th day of March, 2019 by Hon. Justice A.B. Aliyu in Suit No. FHC/MN/CS/42/2018.
The Appellant herein was the 2nd Defendant at the trial Court, while the 1st Respondent was the claimant/Plaintiff. The 2nd and 3rd Respondents, were the 1st and 3rd Defendants respectively.
A Brief summary of the facts of this case resulting in this appeal is that, by an Originating Summons filed on the 23rd November, 2018 the 1st Respondent as Plaintiff at the trial Court sought for the determination of the questions as can be found at pages 1 to 2 of the record of appeal.
Upon the determination of the said questions, the Plaintiff prays the Court for the reliefs, as can be found on pages 2 to 3 of the record of appeal.
The Originating Summons is supported by an affidavit of 40 paragraphs and exhibits attached. The 1st Respondent’s case at the trial Court, is that he is a registered member of the Appellant. That he and seven other aspirants were contestants in the primary election for the
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Niger State House of Assembly, Mokwa State Constituency of Niger State. That he purchased the expression of interest and nomination forms and was screened and cleared to contest the said primary election. That the primary election was conducted peacefully by the Appellant on the 6th October, 2018, result collated and he scored the highest number of votes cast with 2,306 votes. That contrary to the provisions of the Appellant’s Constitution and Section 87 of the Electoral Act, 2010 (as amended) the 2nd Respondent who scored a total of 242 votes only in the direct primary election had his name submitted to the 3rd Respondent by the Appellant as the Appellant’s candidate for the 2019 general election.
Consequent upon that action of the Appellant submitting the name of the 2nd Respondent to the 3rd Respondent, the plaintiff/1st Respondent approached the trial Court seeking for a determination of the questions as contained at pages 1-2 of the record of appeal.
The trial Court in its judgment held that the Plaintiff’s case succeeds, and the claims in paragraphs 1-6 of the plaintiff’s originating summons were all granted.
Dissatisfied with the said
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judgment of the trial Court, the Appellant who was the 2nd Defendant at the trial Court filed two separate notices of appeal both dated 1st day of April, 2019 and filed on 4th April, 2019 and 10th day of April, 2019 respectively. The second notice appeal which appears on pages 384-386 of the record of appeal contains 3 grounds of appeal.
The record of appeal was compiled and transmitted to the Court on 12/4/2019. The briefs of argument were subsequently filed and exchanged by the parties in accordance with the Rules of Court. The Appellant’s brief of argument is dated 12th day of April, 2019 and filed on 18th April, 2019. The Appellants also filed Appellants’ Reply Brief dated 25/4/2019 and filed on 26th April, 2019. The 1st Respondent’s Brief of Argument is dated and filed on the 25th April, 2019, while the 2nd Respondent’s brief of argument dated 29th April, 2019 was filed on 30/4/2019.
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On 13th May, 2019, the appeal was heard before the Court. The Appellants’ Counsel adopted the Appellants’ brief of argument as well as the Reply Brief and urged the Court to allow the appeal. The 1st Respondent’s Counsel on his part adopted the 1st Respondent’s
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brief of argument and urged the Court to dismiss the appeal, while, the 2nd Respondent’s counsel on his part urged the Court to allow the appeal.
The 3rd Respondent left the matter to the discretion of the Court and promised to abide by whatever decision the Court arrived at in this appeal.
The Appellants from their 3 grounds of appeal distilled two issues for determination as follows:
1. Whether or not the suit at the lower Court was statute barred and if so whether the lower Court rightly exercised jurisdiction by proceedings thereunder? (Distilled from ground 1)
2. Whether or not the lower Court was correct to have heard and determined the issues before it by way of the originating summons procedure? (Distilled from ground 2)
The 1st Respondent adopted the two issues as distilled by the Appellants. While the 2nd Respondent on his part distilled two issues as follows;
1. Whether the suit, as filed before the trial Court was not statute-barred, having been brought 48 days after the act complained of which took place on 6/10/2018 contrary to Section 285 (9) of the Constitution of the Federal republic of Nigeria, 1999 (as amended) 4th Alteration Act, 2017? (Distilled from ground 1)
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2. Whether the learned trial Court erred in law and thereby occasioned miscarriage of justice when it held that the 1st Respondent pulled the highest number of votes casted and ought to be declared the winner of the primary election held on 6/10/2018? (Distilled from Grounds 2 and 3 of the Notice of Appeal)
The 3rd Respondent in this appeal has not filed any brief of argument in this appeal.
I will determine this appeal on the basis of the two issues raised in the Appellant’s brief of argument.
ISSUE ONE
Whether or not the suit at the lower Court was statute barred and if so whether the lower Court rightly exercised jurisdiction by proceedings thereunder? (Distilled from Ground 1)
Learned counsel for the Appellant submitted that the 1st Respondent’s suit at the trial Court was statute barred. He contended that the action complained of by the 1st Respondent at the trial Court was the publication of the name of the 2nd Respondent by the 3rd Respondent as the candidate of the Appellant for the election into Mokwa state constituency seat at the Niger state house of assembly in the
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2019 general election, the publication was done on 9th day of November, 2018, which translates when the cause of action arose. The 1st Respondent filed his suit at the trial Court on 23rd day of November, 2018.
He argued that the requirement of the law is that pre-election matters shall be filed not later than 14 days from the date of the occurrence of the event complained of in the suit. He referred the Court to Section 285 (9) of the 1999 Constitution (Fourth Alteration No. 21) Act, 2017.
He maintained that the event complained of in the 1st Respondent’s suit filed at the lower Court arose on the 9th November, 2018. The 1st Respondent’s suit ought to have been filed at the trial Court within 14 days from 9th November, 2018. He submitted that in computing time in election related matters time begins to run from the day of the occurrence of the act complained of and that day shall not be excluded. He referred the Court to the cases of; OKECHUKWU VS. INEC (2014) 17 NWLR PT. 1436 PG 47 AT 78; PDP VS CPC (2011) 17 NWLR PT. 1277 485 AT 506; AWOLOLA VS. GOV EKITI STATE (2019) ALL FWLR PT. 971 AT 18; FAROUK SALIM VS CPC & ORS (2013) LPELR-19928.
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Learned counsel further submitted that the failure of the 1st Respondent to file his suit at the trial Court within 14 days from the day the primaries was conducted renders any cause of action arising therein statute barred. He referred the Court to the cases of; PDP Vs ADEBAYO DAYO (Unreported) SC 968/2018; CHIEF ENG. ADEBAYO DAYO & 8 ORS Vs PDP & 3 ORS (Unreported) SC 2/2019.
He insisted that from which ever angle it is considered, whether from 9th November, 2018 when the publication of the name was effected, or from the 6th of October, 2018 when the primary election of the Appellant was conducted, filing the 1st Respondent’s suit on 23rd November, 2018 is clearly contrary to the provisions of Section 285 (9) of the 1999 Constitution (fourth alteration No. 21) Act, 2017 and the 1st Respondent’s suit at the trial Court is therefore statute barred.
He submitted that if the condition precedent clothing the trial Court with jurisdiction to entertain the suit thereat had not been fulfilled, it implies that the trial Court acted without jurisdiction and the proceedings conducted thereunder amounts to a nullity. He urged the Court to so hold and
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resolve this issue in favour of the Appellant. He referred the Court to the cases of; GAFAR Vs GOVT OF KWARA STATE 2007 ALL FWLR PT. 360 At 1446; USMAN VS. K.S.H.A 2008 ALL FWLR PT. 397 CA; DATEME VS DUKE 2006 ALL FWLR PT. 313 159; MADUKOLU VS NKEMDILIM 1962 1 ALL NLR 587 SC; A.G KANO VS. A.G FEDERATION 2007 ALL FWLR PT. 364 238; RIVERS STATE GOVT. VS. SPECIALIST KONSULT 2005 ALL FWLR PT. 254 PG 875; MARK VS EKE 2004 ALL FWLR Pt. 200 1455 SC.
The 1st Respondent’s counsel on their part, submitted that the 1st Respondent’s suit No. FHC/MN/CS/42/2018 filled at the trial Court was not statute barred as the cause of action sequel to the filling of the suit at the Court below arose on the 9th November, 2018, the date the 3rd Respondent published the name of the 2nd Respondent as the candidate of the Appellant in the 2019 general election. He referred the Court to the cases of; GOV. OF ZAMFARA STATE & ORS Vs SULEIMAN & ORS 2012 4 SCNJ 1; SENATOR NKECHI JUSTINA VS. HON. EMEKA & ORS 2013 1 SCN3 217.
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He contended that from the 9th November, 2018 when the publication was made to 23rd November, 2018 when the 1st Respondent filed this
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suit at the Court below is a period of 14 days.
Learned counsel submitted that the trial Court was right when it observed that the case of OKECHUKWU Vs INEC SUPRA was decided in relation to election matter and therefore, did not apply to the 1st Respondent’s case at the Court below.
He maintained that it is correct to state that OKECHUKWU’S case above did not make rules of Court inapplicable to pre-election matters. Therefore, Order 48 Rule 1 (a) of the Federal High Court (Civil Procedure) Rules 2009 relied upon by the 1st Respondent at the trial Court, in his written address in reply to the Appellant’s objection is applicable to pre-election matters.
He urged the Court to resolve this issue in favour of the 1st Respondent.
The 2nd Respondent counsel on the other hand submitted that the 1st Respondent’s suit at the trial Court is statute barred and cannot confer any right of action in favour of the 1st Respondent. He urged the Court to so hold.
Learned counsel argued that it was
