HON. BAMIDELE SIMON OLORUNTOBA v. HON. EMMANUEL OMOLADUN AGBAJE & ORS
(2019)LCN/13696(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of July, 2019
CA/B/358/2019
RATIO
ELECTION PETITION: PERIOD WITHIN WHICH PRE – ELECTION MATTERS SHOULD BE FILED
S. 285(9) of the 1999 Constitution (as amended) provides as follows: 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. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
STATUTE BAR: WHEN A CAUSE OF ACTION IS STATUTE BARRED
A cause of action is said to be statute-barred if legal proceeding cannot be commenced in Court because the period laid down by the Limitation Law or Act has elapsed. See A.G. Adamawa State & Ors v. A.G. of Federation (2014) LPELR-23221; Osun State Government v. Dalami Nig. Ltd. (2007) LPELR-2817. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JURISDICTION: DEFINITION
There is no doubt that jurisdiction is the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. See Itaye & Ors. v. Ekaidere (1978) LPELR-1558 SC. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
WHEN A RIGHT OF ACTION ACCRUES
It is trite as postulated by learned Appellant?s counsel that a right of action can only accrue when the person who sued became aware of the wrong or injury to him since he cannot invoke the jurisdiction of the Court without the knowledge of the injury to his interest. See Jallco Ltd. & Anor v. Owoniboys Technical Services Ltd. (1995) LPELR-1591 (SC); Union Bank of Nigeria Plc. v. Umeoduagu (2004) 13 NWLR Pt. 890 Pg. 352 at 368 Para. C-F; Mulima v. Usman (2014) 16 NWLR Pt. 1432 Pg. 160 at 201; SC.22/2019: APC & Anor. v. Engr. Suleiman Aliyu Lere & Anor. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
HON. BAMIDELE SIMON OLORUNTOBA Appellant(s)
AND
1. HON. EMMANUEL OMOLADUN AGBAJE
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL
ELECTORAL COMMISSION (INEC) Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court delivered by Honourable. Justice A.A. Demi-Ajayi on 28/05/19 wherein the Court struck out the suit of the Appellant for being statute barred.
Below are the facts that led to this appeal:
The Appellant and the 1st Respondent participated in the 2nd Respondent?s primary election conducted on 6/10/19 to select its candidate for the Edo State House of Assembly Akoko-Edo Constituency II. The 2nd Respondent returned the 1st Respondent as the winner of the primary election and forwarded his name on 2/11/18 to the 3rd Respondent as its candidate for the 2019 general elections for the Constituency. The Appellant being dissatisfied, commenced this suit by way of writ of summons dated and filed on 30/11/2018 and sought the following reliefs from the trial Court:
1. A declaration that the Plaintiff having secured the highest number of lawful majority votes at the 2nd Defendant?s primary election held in Akoko?Edo Constituency II of Edo State on 6th October, 2018 for the purpose of
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selecting the 2nd Defendant?s candidate for election of Member of the Edo State House of Assembly Akoko-Edo Constituency II has thereby emerged the candidate of the 2nd Defendant for the aforesaid election and he is entitled to have his name forwarded to the 3rd Defendant as 2nd Defendant?s candidate for the aforesaid election.
2. A declaration that the 1st Defendant is not qualified to be presented by the 2nd Defendant to the 3rd Defendant as 2nd Defendant?s candidate for election of member, Edo State House of Assembly, Akoko-Edo Constituency II on the ground that 1st Defendant lost the 2nd Defendant?s primary election held in Akoko-Edo Constituency II on 6th October, 2018.
3. A declaration that any purported submission of the 1st Defendant?s name to the 3rd Defendant by the 2nd Defendant for the aforesaid election in Akoko-Edo State Constituency II is a flagrant violation of Section 87 (4)(c) (i) &(ii) of the Electoral Act, 2010 (as amended) and consequently invalid, null and void and of no effect whatsoever.
4. A declaration that the Plaintiff who secured the highest number of lawful majority votes at the 2nd
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Defendant?s aforesaid primary election held in Akoko-Edo Constituency II of Edo State remains in the eyes of the law the 2nd Defendant?s candidate for the said election scheduled for 2nd March, 2019.
5. A declaration that the 3rd Defendant acted wrongly and in breach of the provisions of Section 87(4)(c)(i) and (ii) of the Electoral Act, 2010 (as amended) when the 3rd Defendant accepted the nomination of the 1st Defendant as the 2nd Defendant?s candidate for the Edo State House of Assembly Akoko-Edo Constituency II election scheduled for 2nd March, 2019 notwithstanding the fact that the 1st Defendant lost the primary election on the basis of the lawful valid majority votes cast at the 2nd Defendant?s primary election in Akoko-Edo Constituency II on 6th October, 2018
6. An order of perpetual injunction restraining the 3rd Defendant from recognizing the 1st Defendant or any other person other than the plaintiff as the 2nd Defendant?s candidate for election of member representing Akoko-Edo State Constituency II in the Edo State House of Assembly election scheduled for 2nd March.
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The Respondents, Defendants at the lower
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Court dully filed preliminary objections to the jurisdiction of the Federal High Court challenging the competence of the suit.
The trial Court on 28/5/2019 delivered its judgment wherein the Court struck out the suit of the Appellant on the ground that it was statute barred having not been filed within fourteen (14) days as required by law.
Dissatisfied, the Appellant filed a Notice of Appeal on 10/6/19. Record was transmitted on 14/6/19.
In the Appellant?s brief settled by K.O. Obamogie, Esq. and filed on 21/6/19, the Appellant identified two (2) issues for the determination of this appeal as follows:
1. Whether having regard to the facts and circumstances of the suit resulting in the instant appeal, the Lower Court was not wrong when it held that the Appellant?s suit was 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 the Lower Court was right when it rejected the result of the 2nd Respondent?s primary election in Akoko-Edo Federal Constituency held simultaneously with the Akoko-Edo Constituency 2 primary election on
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6/10/18 solely on the ground that the said result was not frontloaded by the Appellant.
In the 1st Respondent?s brief settled by Ikhide Ehighelua Esq., and O.J. Obodaya Esq. filed on 12/7/9, two issues were identified for determination as follows:
1. Whether or not the lower Court was not right in holding that the suit of the Plaintiff/Appellant filed on 30/11/2019 was filed in violation of Section 285(9) of the 1999 Constitution (as amended) and therefore statute barred.
2. Whether or not the lower Court was right in rejecting the result of the Akoko-Edo Federal Constituency primary election which was neither pleaded not (sic) frontloaded and had no bearing on the dispute between the parties.
2nd Respondent?s counsel, R.I.D. Okezie Esq., O.C. Okechukwu Esq., J.O. Abu Esq., and O.N. Eze who settled the brief of argument filed on 15/7/19 identified two (2) issues for the determination of this appeal, they are set out below:
1. Whether having regards to the provisions of Section 285(9) of the 1999 Constitution (as amended), the Appellant?s suit, subject-matter on this appeal, filed on the 30th of November, 2018 was
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not statute-barred such that the findings of the lower Court grounding Appellant?s issue 1 is justified.
2. Whether the decline of the lower Court to admit in evidence the alleged result of the primary election of the Akoko-Edo Federal Constituency in Ward 8 produced by the Appellant.
In the 3rd Respondent?s brief of argument settled by Matthew Ugwuocha Esq., Chief Legal Officer, Doris Owolabi (Mrs.), Senior Legal Officer, Prince E. Benin Esq., Senior Legal Officer, Obiorah Enebeli Esq., Senior Legal Officer was filed 15/7/19, the 3rd Respondent identified three (3) issues for the determination of this appeal as follows:
1. Whether in the light of the express provisions of Section 285(9) of the 1999 Constitution and the circumstances and facts of the case, the action was statute-barred
2. If the answer to issue 1 is in the affirmative, whether the trial Court was right in its decision when it struck out the suit for want of jurisdiction
3. Whether the 3rd Respondent lacked the power to reject any name or person sent to it by a political party as the candidate of the political party for purpose of election
?
I will adopt
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the issues donated for the determination of this appeal by the Appellant.
1. Whether having regard to the facts and circumstances of the suit resulting in the instant appeal, the Lower Court was not wrong when it held that the Appellant?s suit was 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 the Lower Court was right when it rejected the result of the 2nd Respondent?s primary election in Akoko-Edo Federal Constituency held simultaneously with the Akoko-Edo Constituency 2 primary election on 6/10/18 solely on the ground that the said result was not frontloaded by the Appellant
ISSUE ONE
Whether having regard to the facts and circumstances of the suit resulting in the instant appeal, the Lower Court was not wrong when it held that the Appellant?s suit was statute-barred by virtue of the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Learned counsel argued that the Appellant?s right to present pre-election suit under Section 87(9) of the Electoral Act, 2010 (as amended) ?
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is circumscribed by Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Learned counsel stated that the 2nd Respondent?s primary election held in Akoko-Edo Constituency II of Edo State on 6/10/2018 was marred with violence in wards 1, 2, and 10 of the Constituency and following the Appellant?s appeal to the Appeal panel constituted by the National Working Committee of the 2nd Respondent, the Appellant was held to be the 2nd Respondent?s candidate.
Counsel further stated that the 1st Respondent reacted to the Appellant?s emergence as the candidate of the 2nd Respondent by filing a suit at the Federal High Court sitting in Benin City against the Appellant, 2nd and 3rd Respondents in Suit No. FHC/B/CS/122/18 which was later withdrawn on 12/12/18.
Counsel opined that in view of the absence of the date of publication by the 3rd Respondent, the cause of action accrued when the Appellant became aware that the name of the 1st Respondent was submitted by the 2nd Respondent to 3rd Respondent instead of his own name.
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Learned 1st Respondent?s counsel on the other hand, also
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relying on the provisions of Section 285(9) of the 1999 Constitution that a pre-election matter must be filed 14 days from the date of the event, action or decision complained of, contended that the suit of the Appellant is statute barred and not maintainable.
Counsel argued that Section 285 (9) of the 1999 Constitution (as amended) is a statute of limitation and any suit filed in contravention is incompetent and the jurisdiction of the Court to entertain that suit is extinguished ab initio. Counsel cited Att. Gen. of Adamawa State & Ors v. Att. Gen. of Federation (2014) LPELR-23221 (SC); Hassan v. Aliyu (2010) 17 NWLR Pt. 1223 Pg. 547; Ibrahim v. JSC Kaduna State (1998) 14 NWLR Pt. 584 Pg. 1; Obiefuna v. Okoye (1961) 1 All NLR 357; Abubakar v. Gov. of Gombe State (2002) 17 NWLR Pt. 797 Pg 533.
Counsel argued that where the issue of jurisdiction based on limitation is raised in any suit, the Courts are bound to look at and consider the originating processes filed by the Plaintiff. Counsel cited UBN v. Umeoduagu (2004) 13 NWLR Pt. 890 Pg 352; Egbe v. Adefarasin (1987) INSCL Vol. 18 Pg 1 at 16; (1987) 1 NWLR Pt. 47 Pg. 1; Hassan v. Aliyu (2010) 17
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NWLR Pt. 1223 Pg. 547.
Counsel submitted that the Appellant went to Court to complain about the conduct of the primary election held on 6/10/2018 and the subsequent submission of the name of the 1st Respondent as the candidate of the 2nd Respondent for the general election which submission took place on 2/11/2018.
Counsel argued that the submission was done and received on 2/11/2018 but the suit was filed on 30/11/2018, 28 days after the submission of names by the 2nd Respondent to the 3rd Respondent.
Counsel argued that the cause of action in this suit should be considered with respect to two events, the primary election which took place on 6/10/2018 and the submission of the name of the 1st Respondent as candidate of 2nd Respondent on 2/11/2018.
Counsel submitted that the contention of the Appellant that he only became aware of the submission on 21/11/2018 is of no moment in the instant case, what the Court should be concerned with is whether there was any event, action or decision which took place on 21/11/2018.
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Counsel argued that the Appellant did not mention the date, 21/11/2018 throughout the writ of summons and the Statement
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of Claim whereas it is expected of a party to be consistent in pleading and proving his case at all levels of the adjudicatory process. Counsel relied on Ajide v. Kelani (1985) NWLR Pt. 12 Pg. 248; Okadigbo v. Emeka (2012) LPELR-7839 (SC); Jumbo v. Bryanko Int. Ltd. (1995) 6 NWLR Pt. 403 Pg. 545; PDP v. Onwe (2011) 4 NWLR Pt. 1236 Pg. 146.
Learned Counsel to the 2nd Respondent submitted that by virtue of the provisions of the Section 285 (9) of the 1999 Constitution (as amended), Appellant?s suit in the lower Court filed on 30/11/2018 was filed outside 14 days as mandatorily prescribed.
Counsel emphasized that Section 285 (9) of the Constitution provides for ?14 days from the date of the occurrence of the event, decision or action complained of in the suit? and not ?14 days from the date you became aware of the event, decision or action?.
Counsel argued that since the primary election was conducted on 6/10/2018 and the result released same date, the Appellant had 14 days from the date of release of that result to file his suit in Court to complain about the result.
?
Learned counsel further argued that the
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Appellant deliberately did not state the date of the ?unilateral submission? of the name of the 1st Respondent to the 3rd Respondent although he did not refute that the submission of the name of the 1st Respondent to the 3rd Respondent was on 2/11/2018.
Counsel submitted that the suit filed by the Appellant on 30/11/2018 was incompetent, the Appellant having failed to bring his action in the lower Court on or before either 20/10/2018 or 16/11/2018.
OPINION
S. 285(9) of the 1999 Constitution (as amended) provides as follows:
?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?
A cause of action is said to be statute-barred if legal proceeding cannot be commenced in Court because the period laid down by the Limitation Law or Act has elapsed. See A.G. Adamawa State & Ors v. A.G. of Federation (2014) LPELR-23221; Osun State Government v. Dalami Nig. Ltd. (2007) LPELR-2817.
There is no doubt that jurisdiction is the authority which a Court has
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to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. See Itaye & Ors. v. Ekaidere (1978) LPELR-1558 SC.
In this appeal, the Appellant?s case is that the cause of action accrued on 21/11/2018 when the Appellant discovered that the 2nd Respondent forwarded the name of the 1st Respondent to the 3rd Respondent instead of his name while the list submitted was officially published by the 3rd Respondent on 30/01/2019. Whereas the Respondents argue that the Appellant complained against the conduct of the Primary Election held on 6/10/18 on one hand and the subsequent submission on 2/11/18 of the name of the 1st Respondent as the candidate of the 2nd Respondent for the general election on the other hand.
It is trite as postulated by learned Appellant?s counsel that a right of action can only accrue when the person who sued became aware of the wrong or injury to him since he cannot invoke the jurisdiction of the Court without the knowledge of the injury to his interest. See Jallco Ltd. & Anor v. Owoniboys Technical Services Ltd. (1995) LPELR-1591 (SC); Union Bank of Nigeria Plc. v. Umeoduagu
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(2004) 13 NWLR Pt. 890 Pg. 352 at 368 Para. C-F; Mulima v. Usman (2014) 16 NWLR Pt. 1432 Pg. 160 at 201; SC.22/2019: APC & Anor. v. Engr. Suleiman Aliyu Lere & Anor. ?
The issue of when a cause of action arises has been substantially settled by the Supreme Court in various recent pronouncements, even though each case would be decided on its own peculiar facts. When the complaint of the Plaintiff in the originating summons or Writ of Summons is about the conduct of the primary election by the political party, which deprived him of his victory at the primary election, then the cause of action would arise on the date the primary election was held.
However, where the Claimant is complaining that he won the primaries fair and square but that the name of another person who did not participate at the primaries or who lost the primaries was sent by the party to INEC as the party?s candidate for the election, then the cause of action would crystallize when INEC published the list of candidates for the elections. See Akaahs JSC in SC. 44/2019: Obazee & 1 Ors. v. Hon. Uyiosarere Ekhosuehi & 1 Or. delivered on
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20/6/19. There is no doubt in my mind, that my ambivalent understanding of the judgment of the Supreme Court in respect of this matter when I wrote the lead judgment in CA/B/272/2019 delivered on 11/6/2019 and relied on the lead judgment of the Supreme Court decision in APC v. Eng. Suleiman Lere & 1 Or. SC/222/2019 delivered on 11/4/19 has been laid to rest beyond any doubt by the subsequent judgment of the Supreme Court in SC/448/2019- Obazee & 1 Or. v. Hon. Ekhosuehi & 1 Or. supra.
We need to look at the relevant portions of the Statement of Claim filed by the Appellant at trial on 30/11/18. Paragraphs 18-21, 24-30 and 33, the amended statement of claim on Pg. 535 of the record state as follows:
?18. The Plaintiff avers that all the constituent elements of a due election, namely, accreditation of delegates, counting of votes of delegates, entry of scores in the relevant result sheets and announcement/declaration of result were not observed during the foresaid primary election on the 2nd Defendant in Wards 1, 2 and 10. At the trial, Plaintiff shall place reliance on a DVD containing the electronic recording of the primary election
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proceedings.
19. The Plaintiff avers that the violence and thuggery perpetrated by the 1st Defendant and his agents at the 2nd Defendant?s primary election on the 6th October, 2018 was also reported on the electronic and print media in the country. At the trial, Plaintiff shall rely on the said reports.
20. The Plaintiff avers that as a result of the violence and thuggery exhibited by the 1st Defendant and his agents during the said primary election in Ward 1, 2 and 10 of Akoko Edo Constituency II on 6th October, 2018, the result of the said election was not declared in Edo State. This was peculiar to Akoko Edo Local Government Area where there was violence in the wards mentioned above.
21. The Plaintiff avers that the 2nd Defendant?s primary election was conducted in just two wards namely wards 8 and 9 respectively in Akoko-Edo State Constituency II. The primary election in the remaining three wards was marred by violence.
24. The Plaintiff avers that the 2nd Defendant?s Appeal Panel on National Assembly and State Houses of Assembly Primary Election Committee in charge of Edo State heard the Appeal, allowed it and upheld
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Plaintiff as the winner of the 2nd Defendant?s primary election held in Akoko Edo Constituency II on 6th October, 2018 for the purpose of selecting the 2nd Defendant?s candidate for election of Member representing Akoko- Edo State Constituency II in Edo State House of Assembly scheduled for 2nd March, 2019. The 2nd Defendant is hereby given notice to produce the final decision of the Appeal Panel at the trial.
25. The Plaintiff avers that the decision of the 2nd Defendant?s Appeal Panel was upheld by the National Working Committee of the 2nd Defendant.
26. The Plaintiff avers that premised on the above decision of the 2nd Defendant?s National Working Committee, Plaintiff was given a copy of the 3rd Defendant?s form CF001 and E.C. 48B (iii) together with the checklist meant for him by the 2nd Defendant as the candidate of the 2nd Defendant for the Edo State House of Assembly, Akoko Edo Constituency II election.
27. The Plaintiff avers that he filled(sic) the said INEC Form CF001 and E.C. 48B(iii) and submitted same back to the 2nd Defendant after making copies for himself. At the trial, Plaintiff shall rely on a copy
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each of the said INEC Form CF001 and E.C. 48B(iii).
28. The Plaintiff avers that upon the foregoing development, the 1st Defendant filed Suit No. FHC/B/CS/122/18 wherein the 1st Defendant also alluded to the fact that the Plaintiff?s name was the one forwarded to the 3rd Defendant, as the candidate representing the 2nd Defendant for the Akoko-Edo State Constituency II election scheduled for 2nd March, 2019. At the trial, Plaintiff shall rely on a certified true copy of the processes filed in the above suit.
29. The Plaintiff avers that despite the fact that he won the 2nd Defendant?s primary election held in Akoko-Edo State Constituency II convincingly as stated above, the Appeal Panel?s decision as affirmed by the National Working Committee of the 2nd Defendant, the 1st Defendant along with some undemocratic elements within the 2nd Defendant began desperate moves to undermine the popular will and choice of the 2nd Defendant?s members in Akoko-Edo State Constituency II.
30. The Plaintiff avers that to his greatest surprise, the 2nd Defendant unilaterally submitted the name of the 1st Defendant who lost out at the 2nd
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Defendant?s primary election of 6th October, 2018 held in Akoko-Edo Constituency II of Edo State to the 3rd Defendant.
33. The Plaintiff avers that his protest to the 2nd and 3rd Defendants against the subversion of the democratic will of members of the 2nd Defendant in Akoko- Edo State Constituency II of Edo State, as expressed in the result of the aforesaid primary election of the 2nd Defendant held in Akoko-Edo Constituency II on the 6th October, 2018 have been largely ignored and treated with disdain.?
The Appellant then made the following claims in paragraph 34 at Pg. 540 of the record:
?34. Wherefore the Plaintiff?s claim against the Defendants jointly and severally is as follows:
1) A declaration that the Plaintiff having secured the highest number of lawful majority votes at the 2nd Defendant?s primary election held in Akoko-Edo Constituency II of Edo State on 6th October, 2018 for the purpose of selecting the 2nd Defendant?s candidate for election on Member of the Edo State House of Assembly Akoko-Edo Constituency II has thereby emerged the candidate of the 2nd Defendant for the aforesaid
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election and he is entitled to have his name forwarded to the 3rd Defendant as 2nd Defendant?s candidate for the aforesaid election.
2) A declaration that the 1st Defendant is not qualified to be presented by the 2nd Defendant to the 3rd Defendant as 2nd Defendant?s candidate for election of member, Edo State House of Assembly, Akoko-Edo Constituency II on the ground that 1st Defendant lost the 2nd Defendant?s primary election held in Akoko Edo Constituency II on 6th October, 2018.
3) A declaration that any purported submission of the 1st Defendant?s name to the 3rd Defendant by the 2nd Defendant for the aforesaid election in Akoko-Edo State Constituency II is a flagrant violation of Section 87(4)(C)(i) and (ii) of the Electoral Act, 2010 (as amended) and consequently invalid, null and void and of no effect whatsoever.
4) A declaration that the Plaintiff who secured the highest number of lawful majority votes at the 2nd Defendant?s aforesaid primary election held in Akoko-Edo Constituency II of Edo State remains in the eyes of the law the 2nd Defendant?s candidate for the said election scheduled for 2nd March,
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2019.
5) A declaration that the 3rd Defendant acted wrongly and in breach of the provisions of section 87 (4) (C) (i) and (ii) of the Electoral Act, 2010 (as amended) when the 3rd Defendant accepted the nomination of the 1st Defendant as the 2nd Defendant?s candidate for the Edo State House of Assembly Akoko-Edo Constituency II election scheduled for 2nd March, 2019 notwithstanding the fact that the 1st Defendant lost the primary election on the basis of the lawful valid majority votes cast at the 2nd Defendant?s primary election in Akoko Edo Constituency II on 6th October, 2018.
6) An order of perpetual injunction restraining the 3rd Defendant from recognizing the 1st Defendant or any other person other than the Plaintiff as the 2nd Defendant?s candidate for election of Member representing Akoko-Edo State Constituency II in the Edo State House Assembly election scheduled for 2nd March, 2019.
Particular note is to be taken of paragraphs 25-28 wherein the 2nd Respondent apparently gave the Appellant assurance that his name would be the name sent to the 3rd Respondent as the candidate of the party.
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In paragraph 13 of the
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Appellant?s counter-affidavit to oppose the 1st Respondent?s preliminary objection at trial which is on Pg. 397 of the Record, the Appellant had stated categorically as follows, conceding the date he became aware of the fact that the 2nd Respondent had submitted the name of the 1st Respondent to INEC:
?13. That I only became aware that the 2nd Defendant illegally submitted the name of the 1st Defendant instead of my name as its candidate to the 3rd Defendant on 21st November, 2018 from the National Secretariat of the 2nd Defendant.”
That is the case put forward by the Appellant at trial and by paragraph 4.09, 4.10, etc of the learned Appellant?s brief.
To determine when a cause of action arose, each case must be determined on its own set of facts. Where a party is being deceived as in this case that his name would be submitted, more so, after he had employed the internal mechanism of the party or was employing same (as in Obazee v. Ekhosuehi supra) the Court has to consider that the dispute might be resolved in favour of the Plaintiff who would then have no reason to file an action in Court. I am of the view that giving
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the circumstances of this case, the cause of action arose on 21/11/18.
I share the view of the learned Appellant?s counsel that the lower Court was wrong to have held that the Appellant was not vigilant in presenting and pursuing his claim whereas the Appellant had no means of verifying the names forwarded by the 2nd Respondent to the 3rd Respondent without actual publication of the list.
As I said earlier, each case must turn on its own peculiar facts. I do not think that Obazee v. Ekhosuehi lays down a hard and fast rule set in stone that the cause of action in all cases of this nature where there is controversy about when the cause of action arose, must be resolved to the effect that the cause of action would crystallize when INEC published the list of candidates for election.
In this case the Plaintiff/Appellant had stated that he became aware of the infraction on his rights on 21/11/18, whether or not it was the date INEC published the list. I think it was quite erroneous in law for the learned trial judge to state at Pg. 927 of the Record as follows:
?It is trite that the cause of action arises when it arises and not when
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the Plaintiff discovered that the cause of action had arisen.?
The time honoured rule of interpreting limitation provisions have been followed by the Supreme Court in all its recent pronouncements in respect of election and pre election matters. See Obazee v. Ekhosuleyi supra. The Appellant who on becoming aware of the infringement of his rights on 21/11/2018 who subsequently filed an action to seek for remedies on 30/11/18 is not time barred from doing so. The first issue is resolved in favour of the Appellant.
ISSUE TWO
Whether the Lower Court was right when it rejected the result of the 2nd Respondent?s primary election in Akoko-Edo Federal Constituency held simultaneously with the Akoko-Edo Constituency 2 primary election on 6/10/18 solely on the ground that the said result was not frontloaded by the Appellant.
Learned Appellants counsel submitted that admissibility of evidence in Courts in Nigeria is governed by the Evidence Act, 2011 and not by rules of Court or practice direction as rules of Court cannot override statutory provisions. Counsel cited Chime v. Egwuonu (2008) 2 LRECN 575 at 616; Chime v. Ezea (2009) 2 NWLR
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Pt. 1125 263 at 355.
Counsel submitted that the trial Court was wrong when it rejected the result of the 2nd Respondent?s primary election in Ward 8, Akoko Edo Federal Constituency on the ground that the result was not frontloaded by the Appellant.
Counsel argued that had the trial Court admitted the said document, it would have seen clearly that Exhibit G, the purported result of the 2nd Respondent?s primary election in Ward 8 Akoko Edo Constituency II of Edo State was clearly altered as pleaded by the Appellant.
Counsel emphasized that 839 members of the 2nd Respondent could not have voted in an election held simultaneously with another election where only 539 persons voted.
Learned 1st Respondent?s counsel contended that throughout the pleadings of the Appellant, nothing relating to the House of Representative primary election was pleaded.
Counsel argued that paragraph 9 of the 2nd Respondent?s Statement of Defence mentioned by the Appellant does not amount to pleading the content of a document that was never frontloaded by any of the parties to the proceedings.
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Counsel emphasized that the rules of the
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Federal High Court mandated that any document to be tendered at the trial in the Federal High Court must be pleaded and the document must be filed along with the pleadings but the document in question was not filed along with any of the pleadings by any of the parties.
Counsel submitted that the lower Court was right to have held that the document was not pleaded.
Learned counsel submitted that ground 4 of the notice and grounds of appeal filed on 10/6/2019 is totally incompetent and liable to be struck out.
Counsel opined that the notice of appeal filed on 10/6/2019 in respect of a ruling delivered on 25/5/2019 was filed outside the 14 days window allowed by Section 285 of the 1999 Constitution (as amended).
Counsel argued that wrongful admission of document can be appealed against along with final judgment where it is alleged that the admission of the document had influenced the final judgment of the Court but the rejection of the document did not affect the decision of the lower Court at all.
?Counsel emphasized that nothing can be done about the merits of a suit once the jurisdiction of a Court to entertain a suit is lacking.
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Counsel cited Nigeria Army v. Aminu Kano (2010) 5 NWLR Pt. 1188 Pg. 429.
Counsel submitted that the argument of the Appellant that 839 members of the 2nd Respondent could not have voted in an election held simultaneously with another election where only 539 persons voted is not founded on legal argument but on common sense and mere speculation. Counsel cited Universal Trust Bank of Nigeria v. Ozoemena (2007) 3 NWLR Pt. 1022 Pg. 448; Igabele v. The State (2006) 6 NWLR Pt. 975 (100); Seismograph Services (Nig.) Ltd v. Ogbeni (1976) 4 SC 101.
Learned counsel also argued that the 6th relief, order for perpetual injunction sought by the Appellant at trial can only be granted in support of established and verifiable legal rights. Counsel relied on Sulu-Gambari v. Bukola (2004) 1 NWLR Pt. 853 Pg. 122; Akapo v. Hakeem Habeeb (1992) 6 NWLR Pt. 247 Pg. 266 at 291; Obeya Memorial Hosp. v. Att. Gen of the Federation (1987) 3 NWLR Pt. 60 Pg. 325.
Counsel submitted that a party who goes to Court to seek declaratory reliefs must succeed on the strength of his own case and never on the weakness of the defence. Counsel cited Addah v. Ubandawaki (2015)
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LPELR-24266 (SC); Animashaun v. Olojo (1991) 10 SCNJ 143; Dantata v. Mohammed (2000) 7 NWLR Pt. 664 Pg. 176; Ekundayo v. Baruwa (1965) 2 NMLR 211; Nwokidu v. Ohanu (2010) 3 NWLR Pt. 118 Pg. 362; James v. INEC (2013) LPELR-20322 (CA); Buhari v. Obasanjo (2005) All FWLR Pt. 273 Pg. 1; (2005) 2 NWLR Pt. 910; Justice Party v. INEC(2006) ALL FWLR Pt. 339 Pg. 907; Salau v. Parakoyi (2001) 1 NWLR Pt. 695 Pg. 446.
Counsel vehemently argued that there are serious conflicts between Exhibit B and the oral testimonies of the PW5, PW3 and where there are both documentary and oral evidence on the same subject, the documentary evidence becomes the hanger from which to assess the oral evidence. Counsel cited Ikeh v. Vidah Packaging Ltd. (2011) LPELR-3825 (CA); CDC (Nig. Ltd. v. SCOA (Nig.) Ltd (2007) 6 NWLR Pt. 1030 Pg. 300 SC; Ogbeide v. Osifo (2007) ALL FWLR Pt. 365 Pg. 548 (CA); Kimdey v. Mil. Gov. Gongola State (1988) 2 NWLR Pt. 77 Pg. 445.
Counsel submitted that where evidence produced by one party in litigation conflict with each other, it is the duty of the Court to disbelieve and discredit both pieces of evidence as unreliable since the Court cannot pick
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which one to believe. Counsel cited Elewuju v. Onisaodu (2000) 3 NWLR Pt. 647 Pg. 95; Adeleke v. Asani (1994) 1 NWLR Pt. 322 Pg. 536.
Counsel argued that the Appellant failed completely to prove the allegation that election did not hold in Ward 10 and Exhibit JJ which is the result of the primary election for Ward 10 enjoys the presumption of regularity. Counsel further argued in respect of Ward 1 of the Constituency that the evidence of the Plaintiff that there was violence was mere heresay.
Learned counsel contended that the allegations levied are criminal in nature and cannot be established unless they are proved beyond reasonable doubt. Counsel cited Ugwa v. Lekwauwa (2011) LPELR-4994 (CA); Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 Pg. 1; Nwobodo v. Onoh (1984) 1 SC1.
Counsel argued that the Appellant failed to prove conclusively that he won the primary election of 6/10/2018 since he did not lead any evidence to establish he scored the votes he is claiming.
Learned 2nd Respondent?s counsel submitted that rules of Court are meant to be obeyed and their enforcement for the smooth administration of justice should be regarded by our
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Courts as a sacred duty. Counsel cited MC Investment Ltd & Anor. v. Core Investment & Capital Markets Ltd. (2012) LPELR-7801 SC. Counsel emphasized that it was based on this that the trial Court rejected the admission of the alleged result of the Akoko-Edo Federal Constituency primary election result for ward 8.
Counsel argued that since the provisions of Order 3, Rule 3(1) (a)-(e) were made in furtherance and in compliance with the provisions of Section 36 (1) of the 1999 Constitution (as amended) and since the provisions of the constitution is superior to that of an act of the National Assembly, the lower Court was right to have insisted on affording the Respondents opportunities to be fairly heard.
Counsel argued that in claiming that the results of Ward 1 and 10 were cancelled, the Appellant relied on Exhibit R which has no evidential value having not been tendered through any of its makers. Counsel cited Advanced Maritime Transport Nigeria Limited v. Charles Ojugboli & Ors. (2018) LPELR-46265.
?
Counsel argued that assuming Exhibit R has any evidential value, there is nothing in it showing that the result of ward 1 was at any time
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cancelled by anybody.
OPINION
The narrow compass of the complaint of the Appellant is whether the learned trial judge should have rejected the Akoko-Edo Constituency Primary Election in respect of Ward 8. I cannot understand how this issue emanated from the Court below to be an issue for determination. The Court held at Pg. 929 of the Record as follows:
?It is therefore no longer necessary for the Court to come to a decision based on the merits of this case which was heard to conclusion. The suit is therefore struck out for lack of jurisdiction accordingly with costs of
Incidentally, the Appellant has not prayed this Court to deploy its powers under Section 15 of the Court of Appeal Act to consider this appeal on the merit. A look at the Notice of Appeal relied on to prosecute this appeal which is on Pg. 935-939 of the Record will show that grounds 1, 2, 3 had to do with the issue of statute bar already resolved in the Appellant?s favour in issue one. It is a matter of great puzzle to me that the 4th ground of appeal is not to challenge the failure of the learned trial Court to deliver a ruling on the merit and
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a prayer that this Court should do so. Rather it is an isolated point about the rejection of a particular result of the 2nd Respondent?s primary election held in Akoko-Edo Federal Constituency on 6/10/18 on the ground that the said document was not frontloaded. The relevant ruling of the Court is on Pg. 902 of the Record where the Court held as follows:
?COURT RULING
The document being sought to be tendered might be a relevant document as argued by learned counsel to the Plaintiff but the document was not front loaded (sic) the main purpose of frontloading of documents is so as not to take the other side by surprise thus infringing their rights to fair hearing having not had prior knowledge that the Plaintiffs counsel would be relying of (sic) such document because of this the document is inadmissible for not being admissible it is hereby rejected (sic)?
?
The problem here is that neither in the particulars of error of the grounds of appeal or within the con of the Appellant?s brief did the Appellant explain precisely the impact this would have on the determination of the question of who is the valid candidate of the
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party for the election and the bearing this document has on the relief sought to enter judgment as per the claim of the Appellant. I looked at the address of the Appellant on Pg. 741-751 of the Record at trial. Apart from stating that the Respondents tendered false results, Counsel had argued that the result showed that 4077 votes had been recorded in favour of Appellant as against 2408 in favour of the 2nd Respondent. I can only say that no reference was made in the Appellant?s Counsel?s address in this Court to the material evidence at trial that could have persuaded me to grant the reliefs sought. The Appellant having not made any case in respect of issue 2 in this appeal and having done nothing to facilitate the rehearing of the case at trial as this Court is empowered to do, this issue is resolved against the Appellant. The material and substantive issues being resolved against the Appellant, the Appeal fails and it is hereby dismissed. No order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I had the opportunity of reading in draft the Judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA.
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His Lordship has painstakingly ploughed through the two issues canvassed in this appeal. I am in total agreement with the resolutions and final conclusion that this appeal has no scintilla of merit and is hereby also dismissed by me. I abide by the order as to costs in the lead judgment.
Appeal Dismissed.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, HELEN MORONIKEJI OGUNWUMIJU, JCA.
I am in full agreement with the reasoning and conclusion therein. I have nothing more useful to add.
I also resolve issue ONE in favour of the appellant but issue TWO against him. I agree that this appeal being unmeritorious deserves to be dismissed.
?I make no order as to costs.
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Appearances:
K.O. Obamogie, Esq. with him, C.C. Okpalele, Esq.For Appellant(s)
Ikhide Ehighelua, Esq., O.J. Obadaya, Esq. for the 1st Respondent.
R.I.D. Okezie, Esq., J.O. Abu (Miss) and O.N. Eze (Miss) for the 2nd Respondent.
Matthew Ugwuocha, Esq. with him, Obiora Enebeli, Esq. for the 3rd RespondentFor Respondent(s)
Appearances
K.O. Obamogie, Esq. with him, C.C. Okpalele, Esq.For Appellant
AND
Ikhide Ehighelua, Esq., O.J. Obadaya, Esq. for the 1st Respondent.
R.I.D. Okezie, Esq., J.O. Abu (Miss) and O.N. Eze (Miss) for the 2nd Respondent.
Matthew Ugwuocha, Esq. with him, Obiora Enebeli, Esq. for the 3rd RespondentFor Respondent
