HON. AMIRU TUKUR v. ENGR. YAKUBU NUHU DANJA & ORS
(2019)LCN/13520(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of June, 2019
CA/K/251/2019
RATIO
STATUTE BAR: TO CONSIDER WHETHER AN ACTION IS STATUTE BAR, THE TIME WHEN THE CAUSE OF ACTION ACCRUED SHOULD BE CONSIDERED
The vital fact to determine when considering whether a suit is statute barred is the ascertainment of when the cause of action accrued.
A cause of action has been defined as a combination of facts and circumstances giving rise to the right to file a claim in Court for a remedy. It includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the Plaintiff to succeed. Cause of action normally arises as soon as the combination of acts giving a right to complain accrues or happens. For these principles, see the cases of Okafor v. Bende Divisional Union,Jos Branch (2017) 5 NWLR Part 1559 Page 385 at 417 Para E-G per Kekere-Ekun JSC; Mulima v. Usman (2014) 16 NWLR Part 1432 Page 160 at 198 Para F-H per Okoro JSC.PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
CAUSE OF ACTION: TO DETERMINE WHETHER A CUASE OF ACTION HAS ACCRUIED WHAT SHOULD THE COURTS LOOK AT
In determining the accrual of a cause of action, the Court is confined to the Plaintiff?s pleadings, namely the Writ of Summons and Statement of Claim. See Okafor v. Bende Divisional Union, Jos Branch Supra; (2017) 5 NWLR Part 1559 Page 385 at 417 Para H per Kekere-Ekun JSC; Mulima v. Usman (2014) 16 NWLR Part 1432 Page 160 at 199 Para C-D per Okoro JSC.PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
WHAT TAKES THE PLACE OF PLEADINGS WHEN AN ACTION IS COMMENCED BY WAY OF ORIGINATING SUMMONS
In actions commenced by Originating Summons, the affidavit evidence takes the place of pleadings. It is thus to the affidavit or affidavits, that the Court has recourse to. See Owuru v Adigwu (2018) 1 NWLR Part 1599 at Page 27 Para E-G per Kekere-Ekun JSC.PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
HON. AMIRU TUKUR Appellant(s)
AND
1. ENGR. YAKUBU NUHU DANJA
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This appeal is in respect of the judgment of the Federal High Court Katsina division delivered by Hon. Justice H.R Shagari on the 18th day of April, 2019.
The Appellant and the 1st Respondent participated in the primary election of the 2nd Respondent for Bakori/Danja Federal Constituency held on the 5th of October, 2018 and the name of the Appellant was forwarded to the 3rd Respondent on the 18th October 2018.
The 1st Respondent, as Plaintiff before the lower Court, filed an Originating Summons on the 15th of November seeking the following reliefs:
The reliefs sought in the Originating Summons before the lower Court are as follow:-
1. A DECLARATION that the 1st Defendant lacks the power and the vires to nominate or sponsor or forward to the 3rd Defendant, the name of any candidate for election on the platform of the name of the 1st Defendant to the office of member representing Bakori/Danja at the Federal House of Representatives or at the 2019 general elections, other than as mandatorily provided by the relevant provision of the Constitution of the
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Federal Republic of Nigeria, 1999 (as Amended), the Electoral Act, 2010 (as Amended), as well as the Constitution and Guidelines of the 1st Defendant.
2. A DECLARATION that the 1st Defendant does not possess the vires, power and authority to forward to the 3rd Defendant any other name (Particularly, that of the 2nd Defendant) than the name of the Plaintiff who secured the highest number of the votes in the primary election organized by the 1st Defendant and supervised by the 3rd Defendant on 5th October, 2018, to contest on the platform of the 1st Defendant for the office of member representing Bakori/Danja at the Federal House of Representatives or, at the general elections scheduled for 2019.
3. A DECLARATION that the submission by the 1st Defendant, to the 3rd Defendant, of the name of the 2nd Defendant to contest election on the platform of the 1st Defendant to the office of member representing Bakori/Danja at the Federal House of Representatives or at the general elections slated for 2019, even when he did not win the primary election is unconstitutional illegal, ultra vires, null and void and of no effect.
4. A DECLARATION that the
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Plaintiff, having secured the highest number of votes at the primary election conducted by the 1st Defendant, and monitored by the 3rd Defendant on 5th October, 2018, to nominate a candidate that would represent the 1st Defendant for the office of member representing Bakori/Danja at the Federal House of Representatives remains the candidate of the 1st Defendant for the Bakori/Danja Constituency at the general election scheduled for 2019.
5. A DECLARATION that the election of the Plaintiff as the candidate who secured the highest number of votes at the primary election held by the 1st Defendant, and monitored by the 3rd Defendant to nominate a candidate that would represent the 1st Defendant for office of member representing Bakori/Danja at the Federal House of Representatives at the general elections slated for 2019, subsists.
6. AN ORDER setting aside the nomination and/or submission by the 1st defendant to the 3rd Defendant of the name of the 2nd Defendant as the candidate to represent the 1st Defendant for the office of member representing Bakori/Danja at the Federal House of Representative at the elections slated for 2019.
7. AN ORDER of
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perpetual injunction restraining:
a. The 1st Defendant, whether by itself, National Chairman, Officers Agents privies or through any person or persons however, from treating, presenting or holding out to the 3rd defendant as the candidate representing the 1st Defendant as member representing Bakori/Danja at the Federal House of Representatives at the general elections slated for 2019.
b. The 3rd Defendant, whether by itself, Officers, Agents privies or through any persons howsoever, from treating or further treating, accepting or further accepting, publishing or further publishing the name of the 2nd Defendant as member representing Bakori/Danja at the Federal House of Representative general elections slated for 2019.
c. The 3rd Defendant, whether by itself, National Chairman, Officers, Agents, privies, or through any person or persons howsoever, from excluding or further excluding withholding or further withholding the name of the plaintiff as the candidate representing the 1st Defendant for the office of member representing Bakori/Danja at the Federal House of Representatives at the general elections slated for 2019.
d. The 3rd Defendant,
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whether by itself, National Chairman, Officers, Agents privies, or through any person or persons howsoever, from parading or further parading, presenting or further presenting, holding himself out or further holding himself out as the candidate representing the 1st Defendant for the office of member representing Bakori/Danja at the Federal House of Representatives at the general elections slated for 2019.
The Appellant, 2nd and 3rd Respondents, who were Defendants at the trial Court, challenged the jurisdiction of the trial Court, on the ground that the action is statute barred.
The learned trial Court heard the arguments of Counsel to the parties. It dismissed the challenge to its jurisdiction and delivered its judgment, on the 18th of April 2019, in favour of the 1st Respondent, granting the claims sought in the Originating Summons.
Dissatisfied with the judgment, the Appellant filed a three (3) ground Notice of Appeal on 24/4/2019.
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In prosecution of his appeal, the Appellant filed a Brief of Arguments on the 16th of May, 2019, settled by Ibrahim K. Bawa, SAN, FCIArb in which three (3) issues were formulated for the Court?s
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determination, namely:
1) Whether the trial Court was right when it held that the cause of action arose on the 12th November, 2018 and not on 18th October, 2018 when the name of the Appellant was forwarded to the 3rd Respondent.
2) Whether having regards to the Provision of Order 3 Rule 9 of the Federal High Court (Civil Procedure) Rules 2009, the trial Court was right when it held that the Originating Summons was duly filed on the 15th November, 2018 and not on 4th December, 2018 when the affidavit in support was commissioned
3) Whether the trial Court was right when it granted the 1st Respondent?s reliefs despite the uncontroverted counter affidavits to the Originating Summons.
The 1st Respondent?s Brief of Arguments was filed on the 20th of May, 2019 by Mahmud Abubakar Magaji SAN, Kelechi Chris Udeoyibo, Okechukwu Edeze, Kenechukwu Azie Esq, Nurudeed Abdulmumin of Mahmud & Co., wherein the three (3) issues formulated by the Appellant were adopted as the issues arising for determination in this appeal.
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The 3rd Respondent?s Brief of Argument was filed on the 28/05/2019, settled by Usman Dalhatu, Douglas Najime,
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Timothy Tor Kyuga of Usman Dalhatu & Co in which the following issues were formulated for the determination of this appeal namely:
1) Whether the trial Court was right in holding that this suit was not statute barred by virtue of the Provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Distilled from Grounds 1, 2 and 3 of the Appellant?s Notice of Appeal).
2) Whether having regards to the Provisions of Order 3 Rules 9 of the Federal High Court (Civil Procedure) Rules 2009, the trial Court was right when it held that the Originating Summons was duly filed on the 15th November 2018 instead of 4th December 2018 when it was commissioned.
I shall combine the issues raised by the 3rd Respondent and the Appellant, re-formulating and abridging them for succinctness, as follows:
1. Whether or not the trial Court was right in holding that this suit was not statute barred by virtue of the Provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. Whether or not the trial Court was right when it granted the 1st Respondents reliefs.
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Learned Counsel to the Appellant, Ibrahim K. Bawa SAN has submitted that Section 285 (9) of the 1999 Constitution should be given its literal meaning, as directed by the Supreme Court in the case ofSaleh v Abah (2017) 12 NWLR (pt. 1578) 100 at 159 Paras D ? H. He argued that the 14 days window available for an aggrieved party in a pre-election matter starts to count from the day the activity complained of occurred, the day the cause of action arose, which he stated can be inferred from the Originating Process. He Cited Asaboro v Pan Ocean Oil Corp (Nig.) Ltd (2017) NWLR (Pt. 1563) 42 at 68 Paras A ? B and also referred to paragraph 5(r) of the affidavit in support of the Originating Summons on Page 10 of the record.
Counsel further submitted that the Appellant and the 1st Respondent can only be validly nominated by the National Executive Committee of the 2nd Respondent, the State Executive Committee of a political party has no responsibility in conducting a primary election and further stated that the only organ of the 2nd Respondent that can make any statement or give any communication on the candidates of the 2nd Respondent is the
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National Executive Committee of the 2nd Respondent who conducted the primary election. The learned Silk contended that the purported letter by the State Chairman of the 2nd Respondent in disregard to timetable and schedule of activities for the 2019 General Elections issued by the 3rd Respondent is wrongful in law. That the relevant date by literal interpretation of the Constitution is the date of the submission of the name of Appellant to the 3rd Respondent. In holding that the cause of action arose on the 12th November, 2018, the trial Court failed to have regard to the 1st Respondent?s affidavit, which is the date of the occurrence of the event, 18th October 2018.
In the determination of the date the cause of action arose, it is irrelevant, he said, the date when the 1st Respondent became aware. The relevant date, by literal interpretation of the Constitution is the date of the submission of the name of the Appellant to the 3rd Respondent.
In response learned Silk, for the 1st Respondent, submitted that the disclosure of a cause of action does not lie in the date the event was said to have occurred but the complete happening of the event
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that will entitle the Plaintiff to a remedy. He argued that the provision of Section 285(9) of the Constitution is very clear and unambiguous and the words used must therefore be given their natural and ordinary meaning. He cited Ikechukwu v. Nwoye (2015) 3 NWLR (Pt. 1446) 367 at 402 Paragraphs G ? H and submitted that the proper approach therefore is for the Court to determine from the claim of the Plaintiff what ?event? ?decision? or action he is complaining of. Time, he said, will start to run from the date of the occurrence of that event, decision or action. He also relied onKasim v NNPC (2013) 10 NWLR (pt. 1361) 46 at 66 paras D ? E.
The learned Silk argued further that the
